The Assistant Chairman:—This is the appeal of Dieter Broese from an assessment of his 1970 tax returns.
In 1970 Mr Broese was employed by Zimmcor Industries Ltd as a steel worker principally engaged in the installation of windows and curtain walls in commercial buildings. During that year Mr Broese was transferred to the construction site of Durham College in Oshawa where he worked steadily for a period of eight months. While working at the Oshawa construction site the appellant commuted each working day to and from his residence in Metropolitan Toronto.
According to a contract with Iron Workers Union the appellant, while working in Oshawa, received an allowance for travelling expenses at a rate of $6 a day as specified in the union contract for travel over 25 miles. According to a letter from Zimmcor (Exhibit R1) the appellant’s total earnings for 1970 included an amount of $684 for travelling expenses which is described in the letter as a taxable allowance.
The appellant sought to deduct from his 1970 income the amount of $684 for travelling expenses which was disallowed by the respondent and included in the appellant’s income for that year. Counsel for the appellant contends that the $684 travel allowance, which is -a reasonable amount, falls squarely within the meaning and intent of paragraph 5(2)(b) of the Income Tax Act. However, counsel for the appellant read only the following extract of subsection 5(2):
5. (2) Construction workers.—Notwithstanding subsection (1), in computing the income of a taxpayer for a taxation year from an office or employment, where the taxpayer was, during the year, employed as a construction worker, there shall not be included
(b) the value of, or an allowance (not in excess of a reasonable amount) in respect of expenses incurred by him for, transportation between his ordinary place of residence and the construction site referred to in subparagraph (i) of paragraph (a), . . .
Had counsel for the appellant read the remainder of the section it would have given an entirely different meaning. Paragraph 5(2)(b) continues:
. . . received by him
(i) in respect of, in the course of or by virtue of his employment described in subparagraph (i) of paragraph (a), [1] and
(ii) in respect of a period described in subparagraph (ii) of paragraph (a), during which he received board and lodging, or a reasonable allowance in respect of expenses incurred by him for board and lodging, from his employer.
Subparagraph (ii) of paragraph (a) reads —
(ii) in respect of a period while he was required by his duties to be away, for a period of not less than 36 hours, from his ordinary place of residence;
The appellant who does not receive a board or lodging allowance, who was not away from his ordinary place of residence for a period of at least 36 hours, and whose employment does not meet the description of employment in subparagraph 5(2)(a)(i) does not, in my opinion, fall within the exceptions provided in that section.
It also seems to me that National Revenue Information Bulletin No 11, dated January 30, 1958, referred to by counsel in the notice of appeal, when read in its entirety, reflects accurately and indeed specifies the conditions required in subsection 5(2) before travelling allowances paid to construction workers can be deducted from income. Nor can subparagraph 5(1)(b)(vii) and/or subsection 11(9), being exceptions to section 5 and to be strictly interpreted, offer the appellant any relief because it is on record that the appellant worked steadily at the Oshawa construction site for eight months and although Zimmcor’s head office was in Montreal with a branch office in Toronto, one of the company’s places of business was the construction site in Oshawa where the appellant ordinarily reported for work, where he carried out his duties and from which he commuted daily to his ordinary place of residence. Expenses incurred in getting to the place where an employee normally discharges his duties are not deductible.
The appellant not meeting the requirements of the exceptions to section 5, the travelling allowance of $684 paid to him in 1970 is a taxable allowance and its deduction by the appellant in that year was properly disallowed by the Minister.
The appeal is therefore dismissed.
Appeal dismissed.
‘Subparagraph 5(2)(a)(i) reads:
in respect of, in the course of or by virtue of his employment as a con struction worker at a construction site from which, by reason of distance from the place where he maintained a self-contained domestic establishment (hereinafter in this subsection referred to as his “ordinary place of resi dence’’) in which he resided and actually supported a spouse or a person dependent upon him for support and connected with him by blood rela tionship, marriage or adoption, he could not reasonably be expected to return daily to his ordinary place of residence,