Date: 20000228
Docket: 1999-463-IT-I
BETWEEN:
ANGELA HOLDER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasonsfor Judgment
Watson, D.J.T.C.C.
[1] This appeal was heard in Toronto, Ontario, on February 22, 2000, under the Informal Procedure.
[2] In computing taxes payable for the 1994, 1995 and 1996 taxation years, the Appellant claimed non-refundable tax credits in respect of equivalent-to-spouse amount in the sum of $5,380.00 for each year. In computing income for the 1994, 1995 and 1996 taxation years, the Appellant deducted the amount of $4,500.00 for each year as child care expenses.
[3] In reassessing the Appellant for the 1994, 1995 and 1996 taxation years, the Minister of National Revenue (the "Minister") disallowed the equivalent-to-spouse amount and child care expenses for each year.
[4] In so reassessing the Appellant, the Minister made the following assumptions of fact:
"Equivalent-to-Spouse:
a) in the 1994, 1995 and 1996 taxation years, the Appellant made a claim for equivalent-to-spouse amounts in respect of her son, Brandon Holder;
b) at the end of the 1994, 1995 and 1996 taxation years, the Appellant was cohabiting with Lawrence Holder in a conjugal relationship;
c) during the 1994, 1995 and 1996 taxation years, the Appellant and the Appellant's spouse had one eligible child, Brandon Holder, date of birth November 11, 1993;
d) at all relevant times, the Appellant and the Appellant's spouse resided at 1810-40 Panorama Court in Etobicoke, Ontario;
e) throughout the 1994, 1995 and 1996 taxation years the Appellant was married to Lawrence Holder;
f) at all relevant times, the Appellant did not maintain a self-contained domestic establishment in which she actually supported a person who was wholly dependent for support on the Appellant;
Child Care Expenses:
g) in the 1994, 1995 and 1996 taxation years, the net income of the Appellant were in the amounts of $33,829, $33,242 and $31,219 respectively, and the net income of the Appellant's spouse were in the amounts of $8,135, $9,926 and $16,678 respectively;
h) during the 1994, 1995 and 1996 taxation years was the Appellant's spouse a person described in any of the subparagraphs 63(2)(b)(iii) through 63(2)(b)(vi) inclusive of the Income Tax Act (the "Act")."
[5] At the hearing, the agent acting on behalf of the Appellant admitted paragraphs a), c), e) and g) and denied paragraphs b), d), f) and h).
[6] The only witnesses at the hearing were the Appellant and her spouse, Lawrence Holder.
[7] When they were married on May 22, 1993, the Appellant was pregnant with Brandon, born on November 11, 1993. The Appellant claimed that they had family problems from the start because of Lawrence's immaturity and he moved out of the house that they had jointly purchased to move in with his mother in August 1993. Over the period of their marriage, they attempted reconciliation on many occasions that lasted as long as two months at a time; further disagreements led Lawrence to move out repeatedly to his mother's residence. A second son, Jordan, was born to them in January 1998. In May 1998, the Appellant filed for divorce but a new reconciliation led to the withdrawal of the petition; they sold the first house in September 1998 and bought a new house together on April 30, 1999. During this period, the Appellant was a secretary and Lawrence a full-time student at Humber College and part-time waiter at a Toronto restaurant.
[8] During this whole period, Lawrence had all his mail sent to the Appellant's address where he would pick it up while visiting his son Brandon; this address was given for school, work and income tax returns and he never used any other address. There was no separation agreement or custody-access dispute between the couple; Lawrence continued to pay, each month, his share of the mortgage because, as he stated, he always intended to get back together with the Appellant.
[9] During the three years in issue, Brandon was cared for at the home of an uncle's mother-in-law, Irene Francis; however, the Appellant did not provide Revenue Canada with the address, social insurance number or the family relationship. The Appellant claimed that she always paid in cash without getting any receipt and that she did not keep track of the amounts paid or the dates and times services were rendered; the amount of $4,500 claimed in each of the three years in issue was an approximation. Mrs. Francis also looked after several other children of her relatives at her house.
[10] Other than the testimony of the Appellant and Lawrence, there was no documentation provided at the hearing to indicate that Lawrence was in fact living separate and apart from the Appellant; whatever documentation that was produced, indicated his address as the same as that of the appellant. The Appellant did not report Lawrence's income in her income tax returns for the three years in issue.
[11] The Appellant had the onus of establishing on a balance of probabilities that the Minister's reassessment for the three years was ill-founded in fact and in law.
[12] I find that the claim that they were living separate and apart during these years is not consistent with the other evidence before the Court.
[13] Taking into consideration all the circumstances of this appeal, including the testimony of the witnesses, the admissions and the documentary evidence in the light of the applicable sections of the Income Tax Act and the well-established case law, I am satisfied that the Appellant has not succeeded in her onus. Accordingly, the appeal is dismissed.
Signed at Ottawa, Canada, this 28th day of February 2000.
"D.R. Watson"
D.J.T.C.C.
COURT FILE NO.: 1999-463(IT)I
STYLE OF CAUSE: Angela Holder and H.M.Q.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 22, 2000
REASONS FOR JUDGMENT BY: the Honourable Deputy Judge D.R. Watson
DATE OF JUDGMENT: February 28, 2000
APPEARANCES:
Agent for the Appellant: Reuben Morgan
Counsel for the Respondent: Scott Simser
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
1999-463(IT)I
BETWEEN:
ANGELA HOLDER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on February 22, 2000 at Toronto, Ontario, by
the Honourable Deputy Judge D.R. Watson
Appearances
Agent for the Appellant: Reuben Morgan
Counsel for the Respondent: Scott Simser
JUDGMENT
The appeal from the assessments made under the Income Tax Act for the 1994, 1995 and 1996 taxation years is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 28th day of February 2000.
|
"D.R. Watson" |
D.J.T.C.C.