Date: 980909
Docket: 97-3016-IT-I
BETWEEN:
M. ELENA RAMOS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasonsfor Judgment
Christie, A.C.J.T.C.
[1] This appeal is governed by the Informal Procedure prescribed under section 18 and following sections of the Tax Court of Canada Act. The year under review is 1995.
[2] The Notice of Appeal reads:
"THE RELEVANT FACTS AND REASONS FOR APPEALING:
- ‘TAG' (2610 West Rd., 247-2220), the accounting firm that serviced me in filing my 1995 Tax, as the knowledgeable party (I paid for their service and for their knowledge in filing Tax reports), suggested I claim for supporting my wholly dependent son;
- Juan Carlos is not able to support himself financially since he does not work, he goes to school, full time; he is presently doing a Chemistry B.A. program at University of Toronto, this is his final year;
- I relied on the accounting company's knowledge and practice - that I have the right to claim for supporting my son and further more, I relied on the Taxation authorities, that I was to be assigned what is rightfully owed to me. I am a working single mother who is also working towards a Bachelors in Social Work at York University, night school and I also do community work, I work the distress line (Telecare Etobicoke)."
[3] The opening paragraph and paragraphs numbered 1 to 8 of the Reply to the Notice of Appeal read:
"In reply to the Notice of Appeal for the 1995 taxation year, the Deputy Attorney General of Canada says:
A. STATEMENT OF FACTS
1. He admits that the Appellant had her income tax return for the 1995 taxation year prepared by TAG Accounting Associates.
2. He further admits that during the 1995 taxation year, the Appellant's son was in full time attendance at the University of Toronto.
3. He denies all other allegations of fact contained in the Appellant's Notice of Appeal.
4. In computing income for the 1995 taxation year, the Appellant claimed an amount of $5,380.00 as an equivalent to married amount in the calculation of non-refundable tax credits.
5. The Minister assessed the Appellant for the 1995 taxation year, Notice of Assessment thereof mailed on May 2, 1996.
6. In reassessing the Appellant for the 1995 taxation year, Notice of Reassessment thereof mailed on September 3, 1996, the Minister disallowed the claim for the equivalent to married amount in the calculation of the non-refundable tax credits.
7. In so reassessing the Appellant, the Minister made the following assumptions of fact:
(a) the Appellant is an unmarried person or a married person who neither supported nor lived with her spouse and is not supported by her spouse;
(b) in filing her income tax return for the 1995 taxation year, the Appellant sought to claim the equivalent to spouse amount for her son Juan Carlos Vallejo, who was 21 years of age in 1995;
(c) at all material times, Juan Carlos Vallejo was not dependent for support on the Appellant by reason of mental or physical infirmity;
(d) the Appellant did not maintain a self-contained domestic establishment and support in that establishment a child wholly dependant for support on the Appellant either under 18 years of age or so dependant by reason of mental or physical infirmity.
B. ISSUES TO BE DECIDED
8. The issue is whether the Appellant is entitled to deduct the equivalent to married amount in the 1995 taxation year."
[4] The onus is on the appellant to show that the reassessment is in error. This can be established on a balance of probabilities. Where the onus lies has been settled by numerous authorities binding on this Court. It is sufficient to refer to two judgments of the Supreme Court of Canada in this regard: Anderson Logging Co. v. The King, [1925] S.C.R. 45 and Johnston v. M.N.R., [1948] S.C.R. 486.
[5] No documentary evidence was submitted at the hearing. The only evidence before the Court is the oral testimony of the appellant. That evidence simply does not challenge the validity of what is set out in paragraph 7 of the Reply to the Notice of Appeal. Indeed the appeal would have been dismissed from the Bench except for what follows.
[6] The statutory provisions applicable to this appeal are contained in paragraph 118(1)(b) of the Income Tax Act. It provides:
"118. (1) For the purpose of computing the tax payable under this Part by an individual for a taxation year, there may be deducted an amount determined by the formula
A X B
where
A is the appropriate percentage for the year, and
B is the total of
...
(b) Wholly dependent person — in the case of an individual not entitled to a deduction by reason of paragraph (a) who, at any time in the year,
(i) is an unmarried person or a married person who neither supported nor lived with the married person's spouse and is not supported by the spouse, and
(ii) whether alone or jointly with one or more other persons, maintains a self-contained domestic establishment (in which the individual lives ) and actually supports in that establishment a person who, at that time, is
(A) except in the case of a child of the individual, resident in Canada,
(B) wholly dependent for support on the individual, or the individual and the other person or persons, as the case may be,
(C) related to the individual, and
(D) except in the case of a parent or grandparent of the individual, either under 18 years of age or so dependent by reason of mental or physical infirmity;
an amount equal to the total of
(iii) $6,000, and
(iv) an amount determined by the formula
$5,000 - (D - $500)
where
D is the greater of $500 and the income for the year of the dependent person."
[7] During the course of argument counsel for the respondent informed the Court that there was an appeal from a decision of this Court pending before the Federal Court - Trial Division that could be relevant to the disposition of the appeal at hand. The case referred to is Mercier v. M.N.R., 92 D.T.C. 1681. It was held in that case that clause 118(1)(b)(ii)(D) violated section 15 of the Canadian Charter of Rights and Freedoms and that the violation was not justifiable under section 1 of the Charter. Consequently clause D was to be considered to be of no effect and subparagraph 118(1)(b)(ii) must be read as if clause D had not been enacted. After this appeal had been adjourned it was soon discovered that the Crown's appeal to the Federal Court - Trial Division had been allowed: 97 DTC 5081. A further appeal to the Federal Court of Appeal was not instituted.
[8] The appeal is dismissed.
Signed at Ottawa, Canada, this 9th day of September 1998.
"Christie"
A.C.J.T.C.C.
COURT FILE NO.: 97-3016(IT)I
STYLE OF CAUSE: M. Elena Ramos and
Her Majesty the Queen
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 31, 1998
REASONS FOR JUDGMENT BY: Christie, A.C.J.T.C.C.
DATE OF JUDGMENT: September 9, 1998
APPEARANCES:
For the Appellant: The appellant herself
Counsel for the Respondent: Annette Evans
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
97-3016(IT)I
BETWEEN:
M. ELENA RAMOS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on August 31, 1998, at Toronto, Ontario, by
Christie, A.C.J.T.C.
Appearances
For the Appellant: The appellant herself
Counsel for the Respondent: Annette Evans
JUDGMENT
The appeal from the reassessment made under the Income Tax Act for the 1995 taxation year is dismissed.
Signed at Ottawa, Canada, this 9th day of September 1998.
A.C.J.T.C.C.
Sept. 8 - 1