[OFFICIAL ENGLISH TRANSLATION]
96-4187(IT)I
BETWEEN:
LYSANNE BOUSQUET,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on May 5, 1998, at Montréal, Quebec, by
The Honourable Judge Guy Tremblay
Appearances
For the Appellant : The Appellant herself
Counsel for the Respondent: Mounes Ayadi
JUDGMENT
The appeal from the assessment made under the Income Tax Act with respect to the 1993 taxation year is dismissed in accordance with the attached Reasons for Judgment.
Signed at Québec, Quebec, this 13th day of May 1998.
|
"Guy Tremblay" |
J.T.C.C.
Translation certified true
on this 27th day of June 2003.
Erich Klein, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 19980513
Docket: 96-4187(IT)I
BETWEEN:
LYSANNE BOUSQUET,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Guy Tremblay, J.T.C.C.
Issue
[1] According to the Notice of Appeal and the Reply to the Notice of Appeal, the issue herein is whether the child tax benefit to which the appellant is entitled was rightly revised down to $185.50 for the months from July 1994 to June 1995, and whether the appellant is entitled to the goods and services tax (GST) credit for the 1993 taxation year.
[2] The respondent took into account the income of the appellant's spouse, who became her former spouse in March 1995. As a result of numerous debts, the appellant's spouse was obliged to declare bankruptcy, leaving the appellant to bear the consequences. The spouse declared amount of $3,754 in 1993; the respondent revised that amount to $42,512, thus affecting the appellant's child tax benefit and GST credit.
[3] The respondent is claiming from the appellant overpayments of $2,281.32 in child tax benefits and $608 in GST credits.
Burden of proof
[4] The burden of proof is on the appellant, who must establish that the assessment made by the respondent is unfounded. This burden of proof flows from a number of court decisions, including the Supreme Court of Canada's judgment in Johnston v. Minister of National Revenue.[1]
[5] In that judgment, the Supreme Court ruled that the facts assumed by the respondent in support of assessments or reassessments are presumed to be true until proven otherwise. In the present case, the respondent's assumptions of fact are set out in subparagraphs 3(a) to (f) and paragraphs 4 and 5 of the Reply to the Notice of Appeal. They read as follows:
[translation]
3. In drawing up the July 20, 1995 Notice of Child Tax Benefit, the Minister of National Revenue (''the Minister'') assumed in particular the following facts:
(a) the children for whom the appellant received the child tax benefit for the months from July 1994 to June 1995 were Marylee and Kelly; [admitted]
(b) for the 1993 taxation year, the Minister revised the net income of Guy Plante, the appellant's spouse, from $3,754 to $42,512; [admitted]
(c) for the 1993 taxation year, the appellant's net income was $25,671; [admitted]
(d) for the months from July 1994 to June 1995, with 1993 as the base year, the appellant received a total of $2,491.58 in child tax benefits for her children Marylee and Kelly, paid monthly as follows:
1994/1995
July 1994 $ 203.19
August 203.01
September 203.01
October 264.05
November 217.38
December 217.38
January 1995 217.38
February 217.38
March 217.38
April 217.38
May 217.38
June 96.66
Total $2,491.58 [admitted]
(e) the Minister adjusted the child tax benefit for the 1993 base year, as in his view the appellant was entitled to $185.50 for the months from July 1994 to June 1995 (approximately $15.15 per month); [admitted]
(f) the balance owing to the Minister on July 20, 1995 was therefore as follows:
Amount received $2,491.58
Less:
Revised amount of child tax benefit
(base year 1993) 185.50
Subtotal 2,306,08
Less :
Amount transferred from
1994 child tax benefit 24.76
Balance owing, July 20, 1995 $2,281.32
[admitted]
4. On July 14, 1995, a Notice of Redetermination was issued to the appellant with respect to the GST credit for the 1993 taxation year.
5. In drawing up the July 14, 1995 Notice of Redetermination of the GST credit, the Minister assumed in particular the following facts:
(a) for the 1993 taxation year, the appellant received a total of $608 in GST credits ($152 in each of July 1994, October 1994, January 1995, and April 1995); [admitted]
(b) for the 1993 taxation year, the appellant's net income was $25,671; [admitted]
(c) for the 1993 taxation year, the Minister revised the net income of Guy Plante, the appellant's spouse, from $3,754 to $42,512; [admitted]
(d) because the net family income exceeded $38,080, the Minister therefore revised the GST credits for the 1993 taxation year to zero; [admitted]
(e) the balance owing to the Minister on July 14, 1995 was accordingly as follows:
1994/1995
Amount received $608.00
Less:
Revised amount 0
Balance owing to the Minister $608.00
[admitted]
[6] In her testimony, the appellant maintained that, during a telephone conversation with one Ms. Lacroix, Ms. Lacroix explained to her that the respondent had tried unsuccessfully to contact her former spouse in order to determine whether he could demonstrate that the net income of $42,512 was excessive. To this end, three letters were sent to him, on November 18, 1994, December 20, 1994, and April 25, 1995. These elicited no response and no meeting took place. The assessment was therefore made on the basis of the evidence the respondent had available.
[7] The appellant also stated that Ms. Lacroix had advised her to appeal to this Court; if the judge rendered a decision reducing the income of the appellant's former spouse, the assessment might be amended.
[8] No evidence was produced before this Court that would allow it to reduce the amount of the appellant's former spouse's income. Nor does any provision of the Income Tax Act authorize the Court to decide arbitrarily to reduce an amount set by a party, without additional evidence to support such a decision. Despite the Court's sympathy for the appellant, the assessment must be maintained.
Conclusion
[9] The appeal is dismissed.
Signed at Québec, Quebec, this 13th day of May 1998.
|
"Guy Tremblay" |
J.T.C.C.
Translation certified true
on this 27th day of June 2003.
Erich Klein, Revisor