[OFFICIAL ENGLISH TRANSLATION]
2000-3111(IT)I
BETWEEN:
RICARDO BENEDICTO,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on July 31, 2001, at Montréal, Quebec, by
the Honourable Judge Pierre Archambault
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Claude Lamoureux
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 1998 taxation year is dismissed.
Signed at Ottawa, Canada, this 8th day of August 2001.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 26th day of February 2003.
Erich Klein, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 20011029
Docket: 2000-3111(IT)I
BETWEEN:
RICARDO BENEDICTO,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
(Delivered orally from the bench
on July 31, 2001, at Montréal, Quebec,
and edited for greater clarity.)
Archambault, J.T.C.C.
[1] Ricardo Benedicto is challenging an assessment made by the Minister of National Revenue (the Minister) in respect of the 1998 taxation year. In computing Mr. Benedicto's tax, the Minister disallowed the tax credit for a wholly dependent person (equivalent-to-spouse amount). To be entitled to this credit, all the conditions set out in paragraph 118(1)(b) of the Income Tax Act (the Act) must be met. Among those conditions are the ones found in subparagraph (ii):
(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,
. . .
A number of reasons were put forward by the Minister in support of his assessment, including the fact that Rachèle, the child of his in respect of whom Mr. Benedicto claimed the equivalent-to-married credit, was not wholly dependent on him for support.
Facts
[2] The following facts set out in paragraph 5 of the Reply to the Notice of Appeal, on which the Minister relied in making his assessment, were all admitted by Mr. Benedicto:
[TRANSLATION]
In making and confirming the reassessment at issue, the Minister assumed, inter alia, the following facts:
(a) two children were born of the union of the appellant and Isabelle Laniel (hereinafter his "former spouse"), namely Rachèle and Frédérique;
(b) for the 1998 taxation year, the appellant claimed, in respect of his daughter Rachèle, born on February 2, 1995, the amount of $5,380 as the equivalent-to-married amount;
(c) at all material times, Rachèle and Frédérique were minor children;
(d) in her motion for the determination of support, the applicant, that is, the appellant's former spouse, asked the Court: [TRANSLATION] "to fix the amount of support for the 2 minor children, Rachèle and Frédérique, in accordance with the rules respecting the determination of child support payments adopted under the Code of Civil Procedure";
(e) following the motion for the determination of support and for shared custody of the children, a consent was signed by the appellant and his former spouse and approved by the Superior Court on March 26, 1998;
(f) the Superior Court judgment granted custody of Rachèle and Frédérique to their mother and gave the appellant access rights in respect of the said children;
(g) paragraph 5 of that judgment states that [TRANSLATION] "for tax purposes, the children, Rachèle and Frédérique, will be the respondent-petitioner's dependants for 1997 and 1998", the respondent-petitioner being in this case the appellant;
(h) paragraph 6 of the judgement reads as follows: [TRANSLATION] "The respondent-petitioner undertakes to pay support of $4,641.20 per year, that is, $386.76 per month, to the applicant-respondent, in accordance with the Act, beginning on May 1, 1998," the applicant-respondent being in this case the appellant's former spouse;
(i) in his income tax return for the 1998 taxation year, the appellant claimed no deduction for support;
(j) the appellant claimed child care expenses of $660 for his two children, Rachèle and Frédérique, and this claim was allowed for the year at issue.
[3] The evidence adduced at the hearing also disclosed that Mr. Benedicto lived only briefly with Ms. Laniel, between December 1994 and April 1995. A month after he began to see Ms. Laniel, she became pregnant and subsequently gave birth to twin girls on February 2, 1995. Beginning on July 1, 1995, Mr. Benedicto ended all cohabitation with Ms. Laniel and agreed to have his two children as well as the younger of the other two children, that Ms. Laniel had had from an earlier relationship, live with him.
[4] On March 26, 1998, an agreement between Mr. Benedicto and Ms. Laniel was approved by the Superior Court of Quebec. Under this agreement, Mr. Benedicto was to pay support of $4,641 per year to meet the needs of his two children and this support was to be indexed. The agreement provided that Ms. Laniel would have custody of the two children, while recognizing that, for tax purposes, these children were to be considered Mr. Benedicto's dependants for 1997 and 1998.
[5] The evidence also revealed that in 1998 the twins generally visited their father every weekend and that he provided for them during those visits in addition to making the support payments to their mother.
[6] During 1998, Mr. Benedicto did not resume his cohabitation with Ms. Laniel.
Analysis
[7] The main reason why I must dismiss Mr. Benedicto's appeal is essentially that he did not meet the condition set out in clause 118(1)(b)(ii)(B) of the Act. Rachèle, in respect of whom he deducted the equivalent-to-married tax credit was not a child who was wholly dependent on him for support. In my opinion, Rachèle was also dependent on her mother for support, since she lived with her mother during the week, and it is reasonable to believe that the support payment of approximately $390 per month[1] received for the twins was not sufficient to meet all of the support needs of Rachèle and her sister. Consequently, it cannot be concluded that Rachèle was "wholly dependent for support" on Mr. Benedicto. Since Ms. Laniel did not live in the same domestic establishment as Mr. Benedicto, it cannot be concluded either that Rachèle was wholly dependent for support on "the individual and the other person or persons"[2] as provided in clause 118(1)(b)(ii)(B) of the Act.
[8] For these reasons, the appeal of Mr. Benedicto for the 1998 taxation year is dismissed, without costs.
Signed at Montréal, Quebec, this 29th day of October 2001.
|
"Pierre Archambault" |
J.T.C.C.
Translation certified true
on this 26th day of February 2003.
Erich Klein, Revisor