MAR 16 1988
R.B. Day 957-2136 Subparagraphs 8(1)(f)(i) and (ii) and 8(1)(h)(i) and (ii)
We are writing in reply to your memorandum of January 14, 1988, wherein you requested our views regarding the interpretation of the terms: "was ordinarily required to carry on the duties of his employment away from his employer's place of business" (subparagraphs 8(1)(f)(ii) and 8(1)(h)(i)), and "was required to pay" (subparagraphs 8(1)(f)(i) and 8(1)(h)(ii)).
We have reviewed your submission and the related exhibits along with IT-272R and the Special Release thereto. In general, it is our view that until the adverse decisions in Rozen (85 DTC 5611), Moore (87 DTC 5217) and Betz (87 DTC 5723) are resolved by a decision of the Federal Court of Appeal, we should continue to interpret these provisions in accordance with the existing comments in IT-272R and previous opinions given by this Branch.
In this regard, we are forwarding a copy of our memorandum to Assessing Division dated May 16, 1986. The comments on pages 2 through 4 provide, in some detail, our interpretation of the phrase, "required to pay" as found in paragraphs 8(1)(f) and 8(1)(h) relative to existing jurisprudence as of the date of that memorandum.
With respect to your enquiry about the interpretation of the words "ordinarily required" as they appear in the Act and in paragraph 23 of IT- 272R we offer the following comments and observation.
In order that a taxpayer's claim for expenses may qualify under either of paragraphs 8(1)(f) or 8(1)(h), as the case may be, the taxpayer must fulfil all of the requirements of either paragraph.
With respect to the case of the automobile salesman, as outlined in your memorandum, it would appear that not all of the requirements of paragraph 8(1)(f) are fulfilled by virtue of failing to meet the requirements of subparagraph (ii). The facts, as presented, indicate that the taxpayer was "ordinarily required" to carry out his duties at his employer's place of business and that his irregular pattern of working away from his employer's place of business, once or twice each week, would not, in our view, fulfill this requirement.
Although paragraph 23(a) of IT-272R refers to "some degree of regularity" in the travailing a person is required to do, such wording does not appear in the legislation itself. In that respect, it is our opinion that the word "regular" is subjective rather than quantitative in nature and that one should look to the appropriate wording in the legislation itself and not place too great an emphasis on any one word or group of words as set out in the IT Bulletin.
In conclusion, until such time as the cases previously mentioned are resolved, each case should be decided on its own particular finding of fact in accordance with all of the relevant guidelines in IT-272R .
ORIGINAL SIGNED BY B.W. DATH Director Small Business and General Division Specialty Rulings Directorate Legislative and Intergovernmental Affairs Branch