Positano v. The Queen (July 31, 2018 – 2018 TCC 160, Russell J.).
Précis: The taxpayer and his brother both worked for a family company, Positano Paving. The company did snow clearance in the winter. The brothers shared the job of making “snow runs”, i.e., determining where within the “snowbelt” of Barry, Ontario customers required snow clearance. Snow runs were estimated to be between 90 and 100 kilometres. The brothers took snow runs on alternate days. The company paid them each an allowance of $9,100 as an estimate of the mileage they incurred during the winter season. The taxpayer did not report the amount thinking it was deductible in any event. CRA reassessed the taxpayer for 2012 and 2013 including the full amount in his income and not allowing any offsetting mileage expense. The taxpayer appealed to the Tax Court which dismissed his appeal. The Court held that his estimate of mileage expense was not a “reasonable vehicle allowance” and hence not deductible. There was no order as to costs since this was an informal procedure appeal.
Decision: In short, the Court held that its hands were tied by the language of the Act and precedent:
 The issue in this matter is clear-cut - was the annual $9,100 payment a “reasonable” vehicle allowance per subparagraphs 6(1)(b)(vii.1) and 6(1)(b)(x) of the Act and thus recognized as not having to be included in income?
 These two subparagraphs provide as follow:
6(1)(b)(vii.1) reasonable allowances for the use of a motor vehicle received by an employee (other than an employee employed in connection with the selling of property or the negotiating of contracts for the employer) from the employer for travelling in the performance of the duties of the office or employment,
6(1)(b)(x) where the measurement of the use of the vehicle for the purpose of the allowance is not based solely on the number of kilometres for which the vehicle is used in connection with or in the course of the office or employment,
 These provisions make clear that vehicular allowances are not excludable from income unless the allowance amount is, “based solely on the number of kilometres for which the vehicle is used in connection with or in the course of the…employment.”
 In this case however the $9,100 amount was an amount calculated on the basis of an average of number of snow runs in total, divided evenly between the brothers. The distance of each snow run was known. However the number of snow runs actually made, and by each brother, were not known, but rather were estimated. Thus the actual number of kilometres specifically driven by the Appellant, being one of the two brothers, was not known, but only estimated.
 In Beauport (Ville) v. Minister of National Revenue, 2001 FCA 198, at paragraphs 14 through 19, the Federal Court of Appeal (FCA) made clear, with reference to the above section 6 provisions, that an estimate was not good enough to constitute a reasonable vehicle allowance. The amount of the allowance had to be based on, “actual kilometres travelled rather than an approximation”.
 In my view, the effect of the legislation and related jurisprudence is clear; that the basis for calculation of the purported vehicle allowance paid by the Employer to the Appellant does not qualify as being “reasonable” and hence exempted from income inclusion. The amounts paid were not determined based solely on kilometres actually driven.
As a result the appeal was dismissed. There was no order as to costs since this was an informal procedure appeal.