If you’re a self-employed advisor and hire an assistant, be it your spouse or someone at arm’s length, as long as he or she actually performs the work and is paid a reasonable salary, you should have no trouble deducting the wages you pay.
The ability, however, for an advisor who is considered an employee to hire an assistant is more limited. To be able to deduct the cost of an assistant’s salary, an employee must be “required” by the contract of his or her employment to pay for an assistant.
While the CRA’s administrative position is that the term “required” necessitates that there be an “express requirement within the terms of a written contract of employment,” it acknowledges that such a requirement can still exist if the employee can establish that it was “tacitly understood” by both the employee and the employer that the payment must be made and was necessary, under the circumstances, to fulfill the duties of the job.
A recent tax case decided last month (Li v The Queen, 2009 TCC 530) involved insurance advisor Linzi Li’s 2006 tax return where she was reassessed by Canada Revenue Agency which disallowed various employment expense deductions totaling more than $36,000. Of these expenses, approximately $14,000 related to a salary she paid to her husband, $7,000 to commissions she earned the sale of her own life insurance policy and the bulk of the balance to automobile, entertainment and other expenses.
While Ms. Li did not file a signed T2200 with her tax return, a signed form dated April 12, 2007 was later provided to the CRA along with an unsigned one dated March 27, 2007.
Mr. Li’s employer testified that the unsigned T2200 dated March 27, 2007 is a standard form provided by the insurance company “with the answers typed in so that they cannot be changed.”
It was therefore difficult to explain “how the (singed) form could have been changed… certain answers are different on that form and are contrary to the terms of (Ms. Li’s) employment.”
For example, the signed form indicates that Ms. Li’s duties included selling investment funds, but the insurance company didn’t sell investment funds in 2006. A second discrepancy is that the signed T2200 indicates that she was both required to rent an office away from the insurance company’s place of business and to pay for an assistant. This was contrary to her employer’s evidence which had no such requirement for Ms. Li in 2006 as it provided both an office for sales staff as well as administrative staff.
A third discrepancy between the two Form T2200’s was that the signed copy said the Ms. Li was required to use a portion of her home for work while the unsigned copy from her employer says that she did not.
Ms. Li testified that she paid her husband a salary to work for her as a telemarketer. His responsibilities were to call potential clients and set up appointments with Ms. Li. He testified that he worked a total of 20 hours over 5 evenings per week and made between 100 and 200 calls each day. For this he was paid $15 an hour and was given a bonus of $50 when he landed an appointment for Ms. Li.
Under the Income Tax Act, an employee can only deduct the cost of a salary paid to an assistant if the payment of the salary was required by the contract of employment. The Judge concluded that based on Ms. Li’s conditions of employment in 2006, there was no requirement for her to “hire and pay an assistant, nor can it be said that it was an implicit condition of her employment that she do so.”
The Judge also had difficulty in allowing most of the motor vehicle expenses and the entertainment expenses on the basis that Ms. Li “failed to provide any documentation to support the expenses and that these expenses did not represent purchases used in her employment activities, nor were they incurred for the purpose of gaining or producing income from her employment as they were personal or living expenses.”
Finally, as discussed in last month’s AER column, the Judge disallowed the $7,000 commission income deduction offset against the commission earned on a life insurance policy on her own life as “there are no provisions in (the Act) that allow such a deduction.”