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Docket: 2005-4088(IT)I |
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BETWEEN: |
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DARRYL GUTSCHER, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
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Appeals heard on March 7, 2006 at Kingston, Ontario.
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Before: The Honourable D.G.H. Bowman, Chief Justice
Appearances:
For the Appellant: The Appellant himself
Counsel for the Respondent: George Boyd Aitken |
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JUDGMENT
The appeals from the assessments made under the Income Tax Act for the 2002 and 2003 taxation years are dismissed.
Signed at Ottawa, Canada, this 15th day of March 2006.
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"D.G.H. Bowman" |
Bowman, C.J.
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Citation: 2006TCC163 |
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Date: 20060315 |
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Docket: 2005-4088(IT)I |
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BETWEEN: |
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DARRYL GUTSCHER, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
REASONS FOR JUDGMENT
Bowman, C.J.
[1] These appeals are from assessments made under the Income Tax Act for the appellant's 2002 and 2003 taxation years. They involve a claim by Mr. Gutscher, who is a Major in the Canadian Forces (CF), to deduct certain travel expenses. Major Gutscher, an artillery officer, was stationed at Camp Shilo in Manitoba, where he resided with his wife and son. His daughter, who apparently had medical problems, resided with his wife's parents at Cobalt, Ontario.
[2] In 2002, he was posted to Ottawa. The posting was what is called a restricted posting, that is to say, he moved without his family or personal belongings. For personal reasons his wife and son moved to Cobalt, where the daughter lived with his in-laws. My recollection of the evidence was that the daughter resumed residence with the wife in a house which Major Gutscher purchased in Cobalt. Cobalt is about one and one half hours from North Bay and is about a five and one half or six hour trip by car from Ottawa.
[3] Whenever Major Gutscher was not on duty at Ottawa he drove to Cobalt to be with his wife and family. He claimed his automobile expenses under paragraph 8(1)(h.1) of the Income Tax Act, which reads:
(h.1) where the taxpayer, in the year,
(i) was ordinarily required to carry on the duties of the office or employment away from the employer's place of business or in different places, and
(ii) was required under the contract of employment to pay motor vehicle expenses incurred in the performance of the duties of the office or employment,
amounts expended by the taxpayer in the year in respect of motor vehicle expenses incurred for travelling in the course of the office or employment, except where the taxpayer
(iii) received an allowance for motor vehicle expenses that was, because of paragraph 6(1)(b), not included in computing the taxpayer's income for the year, or
(iv) claims a deduction for the year under paragraph (f);
[4] Originally, Major Gutscher claimed the deduction based on Treasury Board approved mileage rates. He was informed by the Canada Customs and Revenue Agency that this was unacceptable and that he had to claim the automobile expenses on a form T777 E. He did so and provided receipts and vouchers showing his actual expenses. I am treating his actual expenses as having been proved. His entitlement to a deduction is however another matter. The expenses as set out on the form T777 E turned out to be considerably less than those originally claimed on a per kilometer basis.
[5] The appellant filed as well a form T2200 E for each year signed by Commander Matte, the National Defence Command Centre Coordinator. The first six questions and answers were as follows:
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1. Did this employee's contract require the employee to pay his or her own expenses? X Yes -- No
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2. a) Did you normally require this employee to work away from your place of business or in different places? X Yes -- No |
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b)If yes, what was the employee's area of travel? Between Cobalt and Ottawa.
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3. Indicate the period of employment during the year. From: _2003_ _Jan To: _2003_ _Dec_ (Year) (Month) (Year) (Month)
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4. a) Did this employee receive an allowance? -- Yes X No b) If yes, indicate: i) the amount received as a fixed allowance, such as a flat monthly allowance. $ ________________ ii) the per km rate used _______ ($/km), and the amount received. $ ________________ iii) the amount of the allowance that was included on the employee's T4 slip. $ ________________
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5. a) Did this employee receive a repayment of the expenses he or she paid to earn employment income? -- Yes X No b) If yes, indicate the amount that was: i) received upon proof of payment. $ ________________ ii) charged to the employer, such as credit-card charges. $ ________________ iii) included on the employee's T4 slip. $ ________________
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6. a) Did you require this employee to pay other expenses for which the employee did not receive any allowance or repayment? X Yes -- No b) If yes, indicate the type(s) of expenses. Motor vehicle expenses.______________
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[6] Providing such forms may be a requirement to an employee's right to claim automobile expenses, but they are not determinative of the facts stated in them and they are not binding on the Court.
[7] In this case, Major Gutscher, for perfectly valid personal and family reasons, chose not to have his family move from Shilo, Manitoba to Ottawa. Rather, he moved them to Cobalt, Ontariowhere he visited them whenever he had sufficient time off to permit him to do so. This was a personal decision on his part. The CF who employed him did not require him to purchase a family home in Cobalt nor did it require him to visit his family there. The location of his family home and his trips to it had nothing to do with the duties of his employment.
[8] The usual rule is that the costs of travelling from one's home to one's place of work are personal expenses. This has been established in a long line of cases, going as far back as Ricketts v. Colquhoun, [1926] A.C. 1, which was followed in Hogg v. The Queen, [2002] 4 F.C. 443.
[9] There may be exceptions to the rule in particular circumstances but this case is not one of them. While I am sympathetic to Major Gutscher's position, I do not think that his travelling to Cobalt was a requirement of his employment.
[10] The appeals are dismissed.
Signed at Ottawa, Canada, this 15th day of March 2006.
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"D.G.H. Bowman" |
Bowman, C.J.
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CITATION: |
2006TCC163 |
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COURT FILE NO.: |
2005-4088(IT)I |
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STYLE OF CAUSE: |
Darryl Gutscher v. Her Majesty The Queen |
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PLACE OF HEARING: |
Kingston, Ontario |
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DATE OF HEARING: |
March 7, 2006 |
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EASONS FOR JUDGMENT BY: |
The Honourable D.G.H. Bowman, Chief Justice |
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DATE OF JUDGMENT: |
March 15, 2006 |
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APPEARANCES: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent: |
George Boyd Aitken |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
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Firm: |
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For the Respondent: |
John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Canada |
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