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Docket: 2004-2957(IT)I |
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BETWEEN: |
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PERCY BROYDELL, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
Appeal heard on January 12, 2005 at Toronto, Ontario
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Before: The Honourable Justice T. O'Connor |
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Appearances: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent: |
Jeremy Streeter |
JUDGMENT
The appeal from the reassessment made under the Income Tax Act for the 2002 taxation year is dismissed, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 24th day of January 2005.
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"T. O'Connor" |
O'Connor, J.
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Citation: 2005TCC79 |
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Date: 20050124 |
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Docket: 2004-2957(IT)I |
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BETWEEN: |
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PERCY BROYDELL, |
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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
O'Connor, J.
[1] The issue in this appeal is whether in the 2002 taxation year the Appellant is entitled to a deduction of $16,343.89 as moving expenses in calculating his income for that year.
[2] The relevant facts may be summarized as follows:
1. In 2002 the Appellant moved from Innisfil, Ontario ("Old Residence") to South Barrie, Ontario ("New Residence"). There is reference to the move occurring in 1999 but this is not material as neither party raised the issue and the moving expenses are claimed in the 2002 taxation year.
2. At all relevant times, that is to say while living at the Old Residence and at the New Residence the Appellant was an employee of Falcon Lumber Limited. In other words he did not move to change his employer. Moreover he did not move to change his work location.
3. The principal reason for the move was that, while living at the Old Residence (which was further from the work location than the New Residence) and because of communication problems (GO train difficulties) he missed work a number to times during winter months. This created problems for his employer and the management of the employer informed the Appellant that he should move closer to the work location. Note there is also reference to asthma and pneumonia problems of the Appellant's wife which were also a motivation for the move but this is not germane to the issue in this appeal.
4. The Appellant's claim is based upon subsections 62(1) and 248(1) of the Income Tax Act ("Act"). All of the conditions of those provisions as to distance (s. 248(c)), both residences being in Canada (s.248(b)) and any other conditions necessary to entitle the Appellant to the deduction, save one, have been met. The only condition in question is whether the Appellant qualifies under s. 248(a) for an "eligible relocation", i.e. did the relocation occur to enable the Appellant to be employed at a new work location or whether special circumstances existed to permit the Court to expand that concept to a notion of relocating to retain employment at the same work location.
Submissions of the Appellant
[3] The following extracts from the Appellant's Notice of Appeal outline the two issues that the Appellant raises:
1. On the first issue, the Appellant's Notice of Appeal states as follows:
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I didn't move to be closer to work. My move was to be near public transportation where I would have no problem getting to work regardless of weather conditions and ensure my continued employment.
I am quoting the Gary Adamson v. The Queen ruling where he moved to a larger office. He did not change employment and didn't qualify based on distance as his move was not closer to his employment. He did not meet the requirements of the Act but still qualified based on the special circumstances.
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2. On the second issue which relates to advice given by Revenue Canada representatives, the Appellant's Notice of Appeal states as follows:
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When I first contacted Revenue Canada about the possibility of claiming my moving expenses based on the special conditions. The Agent kept me on the phone while she checked the Income Tax act, and after checking with her Supervisors advised me to claim the expenses and gave me a list of expenses I could claim.
I submitted my 2002 Tax Return and enclosed a letter stating I was claiming the moving expenses. I informed them of my telephone conversation with Revenue Canada that I had not changed jobs and my special reasons for making the claim. They approved my claim and forwarded my refund. Later, Revenue Canada withdrew my qualification and asked me to repay the refund.
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Analysis and Conclusion
[4] The Appellant's first submission cannot succeed. The conditions of the applicable sections 62 and 248 of the Act, in particular paragraph 248(a) include the condition that the relocation must occur to enable the taxpayer to be employed at a new work location in Canada. This condition is not met and I cannot perceive any special circumstances, such as those demonstrated in the Adamson case, to stretch the words so as to entitle the deduction claimed by the Appellant in this appeal.
[5] In Adamson v. Canada, [2001] T.C.J. No. 609, this Court determined that an eligible relocation occurred when the Appellant in that case was required to work from his home. Adamson was found to have selected a new work location which was an office in his new home. In other words he selected both a new work location and a new home. The facts in Adamson are distinguishable from the facts in this case. In this appeal, the Appellant did not have a new work location and consequently does not meet one of the requirements of the sections cited above.
[6] Reference is also made to Ray v. Canada, [2004] F.C.J. No. 1. In that case the Federal Court of Appeal in dealing with a different fact situation stated:
... it is not open to this Court, or the Tax Court, to disregard statutory requirements imposed by Parliament, even if they are difficult to rationalize on policy grounds. ...
As mentioned, Ray dealt with a different fact situation, but the principle is the same namely that Courts are bound by the statutory requirements and cannot extend them to capture a situation not envisaged by those statutory requirements.
[7] See also Howlett v. Canada, [1998] T.C.J. No. 1035, where this Court, in dismissing the appeal, stated the following:
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10. In the present appeal, the Appellant met two conditions: the old residence and the new residence. As to the work location it did not change. The Appellant's working pattern changed due to his new position as sales manager. His change of residence was only for the purpose of being closer to the branch office situated at the same location as before moving from one residence to the other.
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[8] The second issue raised by the Appellant relates to reliance on the advice of Revenue Canada. On this point reference is made to Wong v. Canada, [1996] T.C.J. No. 1237, where Bowman T.C.J. of this Court, as he then was, in reference to a different fact situation, cited with favor and applied the following extract from Goldstein v. Canada [1995] 2 C.T.C. 2036:
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"It is sometimes said that estoppel does not lie against the Crown. The statement is not accurate. It seems to stem from a misapplication of the term estoppel. The principle of estoppel binds the Crown as do other principles of law. Estoppel in pais, as it applies to the Crown, involves representations of fact made by officials of the Crown and are relied and acted upon by the subject to his or her detriment. The doctrine has no application where a particular interpretation of a statute has been communicated to a subject by an official of the government, relied upon by that subject to his or her detriment and then withdrawn or changed by the government. In such a case the taxpayer sometimes seeks to invoke the doctrine of estoppel. It is inappropriate to do so, not because such representations give rise to an estoppel that does not bind the Crown, but rather because no estoppel can arise where such representations are not in accordance with the law. Although estoppel is now a principle of substantive law it had its origins in the law of evidence, and such relates to representations of fact. It has no role to play where questions of interpretation of the law are involved because estoppels cannot override the law."
[9] The foregoing describes what has been decided in numerous cases, namely that representations or advice given by representatives of Revenue Canada on questions of interpretation of the law cannot override the law.
[10] For all of the above reasons the appeal is dismissed
Signed at Ottawa, Canada, this 24th day of January 2005.
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"T. O'Connor" |
O'Connor, J.
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CITATION: |
2005TCC79 |
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COURT FILE NO.: |
2004-2957(IT)I |
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STYLE OF CAUSE: |
Percy Broydell and H.M.Q. |
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PLACE OF HEARING: |
Toronto, Ontario |
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DATE OF HEARING: |
January 12, 2005 |
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REASONS FOR JUDGMENT BY: |
The Honourable Justice T. O'Connor |
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DATE OF JUDGMENT: |
January 24, 2005 |
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APPEARANCES: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent: |
Jeremy Streeter |
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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 Sims Deputy Attorney General of Canada Ottawa, Canada |