Barry v. R. – FCA: Taxpayer denied the deduction of motor vehicle and cell phone expenses and related GST/HST rebates

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Barry v. Canada (December 1, 2014 – 2014 FCA 280) was an appeal from a decision of the Tax Court which dismissed the taxpayer’s appeal claiming to deduct motor vehicle and cell phone expenses and claiming related GST/HST rebates on those expenses.

[1] In the 2008 and 2009 taxation years the appellant had two jobs: a permanent position as a full-time teacher and a part-time position as a group home counsellor with the Eastern Residential Support Board Inc. (ERSB). The ERSB operates a number of group homes in the St. John’s area and the appellant could be told to report to one of a number of them for a particular shift.

[2] The Minister of National Revenue denied certain expenses claimed by the appellant in respect of the 2008 and 2009 taxation years, namely:

i. Motor vehicle expense claims.

ii. Cell phone expense claims.

iii. Employee and Partner GST/HST rebates associated with the disallowed expenses.

The Court of Appeal first dismissed that appellant’s motion to introduce new evidence on the appeal:

[6] The correspondence and e-mail chains are nothing more than position statements made from time to time by the appellant, representatives of the Minister and the ERSB. As such, they provide no assistance to the resolution of the issues raised on this appeal. They, therefore, do not meet the test for the admission of new evidence (Shire Canada Inc. v. Apotex Inc., 2011 FCA 10, 414 N.R. 270, at paragraph 17).

The appellant’s grounds for appeal were as follows:

[7] On this appeal the appellant frames the issues as follows:

i. The Judge erred in interpreting paragraph 8(1)(h.1) of the Act.

ii. The Judge erred in finding that travel expenses, which the appellant incurred when commuting to and from various group homes, were not incurred in the performance of his employment duties.

iii. The Judge erred in law or unreasonably found that the appellant was not required by his employment contract to have a cell phone.

The Court of Appeal dismissed the appeal with costs on the basis, inter alia, that the evidence supported the Tax Court Judge’s conclusions that the appellant was neither required under the terms of his employment to pay his own motor vehicle expenses nor to have a cell phone.