1999-4364(IT)I
BETWEEN:
ELISABETH V. ATSAIDIS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on September 21, 2000 at Toronto, Ontario, by
the Honourable Judge D.W. Beaubier
Appearances
For the Appellant: The Appellant herself
Counsel for the Respondent: Donna Dorosh
JUDGMENT
The appeal from the reassessment made under the Income Tax Act for the 1997 taxation year is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada this 26th day of September 2000.
|
"D.W. Beaubier" |
J.T.C.C.
Date: 20000926
Docket: 1999-4364(IT)I
BETWEEN:
ELISABETH V. ATSAIDIS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Beaubier, J.T.C.C.
[1] This appeal pursuant to the Informal Procedure was heard at Toronto, Ontario on September 21, 2000. The Appellant was the only witness. Paragraphs 6 to 12 inclusive of the Reply set out the matters in issue in this appeal. They read:
6. In computing income for the 1997 taxation year the Appellant deducted $2,750.00 on account of moving expenses.
7. The Minister reassessed the Appellant's 1997 taxation year by Notice dated November 17, 1998, to disallow the moving expenses of $2,750.00.
8. In so reassessing the Appellant, the Minister relied on, the following assumptions of fact:
a) the Appellant moved from Vancouver, British Columbia ("Old Residence") to Oakville, Ontario, ("New Residence") on or about June 25, 1997;
b) the Appellant flew from the Old Residence to Toronto, Ontario on June 25, 1997;
c) the Appellant obtained one business class airline seat by redeeming frequent flyer points which the Appellant had accumulated through personal expenditures and personal travel;
d) the Appellant did not support by way of voucher the $750.00 for accommodations and the $500.00 for meals claimed as temporary living expenses which she deducted and which the Minister disallowed in her 1997 taxation year;
e) the Appellant commenced work at the New Residence location in November, 1997;
f) the Appellant was not paid an allowance or any form of reimbursement by her employer in respect to any moving expenses;
g) the Appellant's income at the new work location for the 1997 taxation year was $7,500.00.
B. ISSUES TO BE DECIDED
9. The issue is whether the Appellant is entitled to deduct moving expenses of $2,750.00 for the 1997 taxation year.
C. STATUTORY PROVISIONS RELIED ON
10. He relies on section 62 of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), as amended (the "Act").
D. GROUNDS RELIED ON AND RELIEF SOUGHT
11. He respectfully submits that the Appellant is not entitled to deduct an imputed value for the airline ticket as a cost of moving from the Old Residence to the New Residence on the basis that the value of redeemed frequent flyer points are not considered to be amounts paid for the purpose of moving expenses under section 62 of the Act.
12. He submits that the temporary accommodation and meal expense were an estimated amount and that the Appellant is not entitled to this expense as the expense was not incurred within the meaning of subsection 62(3) of the Act.
He requests that the appeal be dismissed.
[2] Assumptions (a) to (f) inclusive are correct. Assumption (g) was not refuted by the Appellant. Section 62 of the Income Tax Act reads:
62.(1) Where a taxpayer has, at any time, commenced
(a) to carry on a business or to be employed at a location in Canada (in this subsection referred to as "the new work location"), or
(b) to be a student in full-time attendance at an educational institution (in this subsection referred to as "the new work location") that is a university, college or other educational institution providing courses at a post-secondary school level,
and by reason thereof has moved from the residence in Canada at which, before the move, the taxpayer ordinarily resided (in this section referred to as "the old residence") to a residence in Canada at which, after the move, the taxpayer ordinarily resided (in this section referred to as "the new residence"), so that the distance between the old residence and the new work location is not less than 40 kilometres greater than the distance between the new residence and the new work location, in computing the taxpayer's income for the taxation year in which the taxpayer moved from the old residence to the new residence or for the immediately following taxation year, there may be deducted amounts paid by the taxpayer as or on account of moving expenses incurred in the course of moving from the old residence to the new residence, to the extent that
(c) they were not paid on the taxpayer's behalf by the taxpayer's employer,
(d) they were not deductible by virtue of this section in computing the taxpayer's income for the preceding taxation year,
(e) they would not, but for this section, be deductible in computing the taxpayer's income,
(f) the total of those amounts does not exceed
(i) in any case described in paragraph (a), the taxpayer's income for the year from the taxpayer's employment at the new work location or from carrying on the new business at the new work location, as the case may be, or
(ii) in any case described in paragraph (b), the total of amounts required to be included in computing the taxpayer's income for the year by virtue of paragraphs 56(1)(n) and (o), and
(g) any reimbursement or allowance received by the taxpayer in respect of those expenses is included in computing the taxpayer's income.
(2) Where a taxpayer would, if subsection (1) were read without reference to paragraph (a) thereof and
(a) if the reference therein to "moved from the residence in Canada at which" were read as a reference to "moved from the residence at which", or
(b) if the reference therein to "to a residence in Canada at which" were read as a reference to "to a residence at which",
be entitled to deduct an amount by virtue of that subsection in computing the taxpayer's income for a taxation year, that amount may be deducted in computing the taxpayer's income for the year.
(3) In subsection (1), "moving expenses" includes any expenses incurred as or on account of
(a) travel costs (including a reasonable amount expended for meals and lodging), in the course of moving the taxpayer and members of the taxpayer's household from the old residence to the new residence,
(b) the cost to the taxpayer of transporting or storing household effects in the course of moving from the old residence to the new residence,
(c) the cost to the taxpayer of meals and lodging near the old residence or the new residence for the taxpayer and members of the taxpayer's household for a period not exceeding 15 days,
(d) the cost to the taxpayer of cancelling the lease by virtue of which the taxpayer was the lessee of the old residence,
(e) the taxpayer's selling costs in respect of the sale of the old residence, and
(f) where the old residence is being or has been sold by the taxpayer or the taxpayer's spouse as a result of the move, the cost to the taxpayer of legal services in respect of the purchase of the new residence and of any taxes imposed on the transfer or registration of title to the new residence,
but, for greater certainty, does not include costs (other than costs referred to in paragraph (f)) incurred by the taxpayer in respect of the acquisition of the new residence.
(emphasis added)
The word "amount" is defined in subsection 248(1) of the Income Tax Act as follows:
"amount" means money, rights or things expressed in terms of the amount of money or the value in terms of money of the right or thing, except that, ...
[3] The Appellant's claim for a business class airline seat in the amount of $1,500.00 was claimed in her income tax return. The Appellant admitted that she just guessed at the amount of $1,500.00. Then she said that her secretary recently phoned the airline and told her that the value of the seat was $3,323.00. She added more hearsay that on the day of trial the cost of the seat was $1,872.25. The result is that the Court has no evidence of even the retail value of the seat on the date of the Appellant's flight. The Appellant failed to prove anything respecting the actual amount of "travel costs" relating to her claim for the airline seat except that she testified that she flew that day. For this reason, this claim is dismissed.
[4] The Appellant is a lawyer of considerable experience in business and tax law. Despite the clarity of the assumptions respecting matters in dispute, she did not submit any vouchers or receipts respecting meals or accommodation to refute assumption (d). She admitted that when she arrived in Toronto with her new baby she stayed with family but said that nonetheless, she ate all her meals in restaurants. She claimed a round number of $500.00 based on her estimate of $33.00 per day. She also claimed that she had credit card receipts supporting all or part of the $500.00 claim but did not present any to Revenue Canada. She did not present any to the Court either. In view of her failure to present these alleged receipts to the Court, despite the clear warning in the assumption, the claim alleging $500.00 in meal expenses is dismissed. She did not substantiate her claim in any way and her unsupported estimate is not accepted.
[5] The Appellant's claim for $750.00 on account of accommodation is more complicated. She and her husband rented a furnished house for one month for $1,500.00 while waiting for a permanent home. She alleged that he paid and deducted $750.00 and she paid $750.00. Her cheque or receipt for the $750.00 was not submitted as evidence.
[6] Paragraph 62(3)(c) of the Income Tax Act allows a deduction for lodging for a period not exceeding 15 days. The Appellant's husband paid for and was allowed a deduction for 15 days and it appears that paragraph 62(3)(c) also permits the Appellant to claim a second 15 days. But, once again, the Appellant did not present a copy of a cheque or a receipt of her own respecting the 15 days she claims, despite the clear warning contained in assumption (d). In other words, she did not substantiate her testimony in any way and without such substantiation, the Appellant's testimony is not accepted.
[7] The appeal is dismissed.
Signed at Ottawa, Canada this 26th day of September 2000.
|
"D.W. Beaubier" |
J.T.C.C.
COURT FILE NO.: 1999-4364(IT)I
STYLE OF CAUSE: Elisabeth V. Atsaidis v. The Queen
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 21, 2000
REASONS FOR JUDGMENT BY: The Honourable Judge D.W. Beaubier
DATE OF JUDGMENT: September 26, 2000
APPEARANCES:
For the Appellant: The Appellant herself
Counsel for the Respondent: Donna Dorosh
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada