[OFFICIAL ENGLISH TRANSLATION]
1999-4357(IT)I
BETWEEN:
MARCEL DESROSIERS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on September 11, 2000, at Sept-Îles, Quebec, by
the Honourable Deputy Judge J. F. Somers
Appearances
Counsel for the Appellant: Charles-Henri Desrosiers
Counsel for the Respondent: Stéphanie Côté
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 1997 taxation year is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 27th day of September 2000.
|
"J. F. Somers" |
D.J.T.C.C.
Translation certified true
on this 17th day of September 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 20000927
Docket: 1999-4357(IT)I
BETWEEN:
MARCEL DESROSIERS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Somers, D.J.T.C.C.
[1] This appeal was heard under the informal procedure, in Sept-Îles, Quebec, on September 11, 2000.
[2] In a July 2, 1999, notice of reassessment for the 1997 taxation year, the Minister of National Revenue ("the Minister") increased the appellant's net income by $9,600 and disallowed the deduction requested by the appellant for support or other periodic payment.
[3] In making and defending the reassessment at issue, the Minister made the following assumptions in particular, which were admitted by counsel for the appellant:
(a) on his initial income tax return for the 1997 taxation year, the appellant had deducted $9,600 from his income as support or other periodic payment;
(b) concerning the deduction for support or other periodic payment, the Minister had assessed the appellant's initial return as filed;
(c) under an August 10, 1990, Consent to Judgment by the Superior Court, the appellant agreed to pay Colette Mansour, his former spouse, $200 per week when the two children would return to live with her;
(d) the appellant's children are Isabelle Desrosiers, born March 23, 1973, and Valérie Desrosiers, born December 20, 1974;
(e) during the taxation year at issue, Valérie and Isabelle were of legal age and no longer lived with their mother;
(f) during the taxation year at issue, the appellant issued 12 cheques for $400 to Isabelle and 12 cheques for $400 to Valérie;
(g) the cheques made out to Isabelle and Valérie were cashed by them;
(h) the Minister therefore refused to allow the $9,600 deduction requested by the appellant for support or other periodic payment for the taxation year at issue.
[5] The issue is whether, for the appellant, the amount of $9,600 at issue for the 1997 taxation year was an allowable deduction for support or other periodic payment.
[6] Following an agreement signed between the appellant and his former spouse, the appellant agreed to pay his former spouse $200 per week, indexed starting on May 2, 1988, when the two children would return to live with her.
[7] Two conditions of that agreement between the parties no longer exist. Firstly, the children are of legal age and, secondly, the children no longer live with the appellant's former spouse.
[8] Section 60 of the Income Tax Act reads in part as follows:
SECTION 60: Other deductions.
There may be deducted in computing a taxpayer's income for a taxation year such of the following amounts as are applicable:
...
(b) Support - the total of all amounts each of which is an amount determined by the formula
A - (B+C)
where
A ...
B is the total of all amounts each of which is a child support amount that became payable by the taxpayer to the particular person under an agreement or order on or after its commencement day and before the end of the year in respect of a period that began on or after its commencement day, and
C ...
[9] In Curzi v. Canada (Minister of National Revenue - M.N.R.) (F.C.T.D.), [1994] F.C.J. No. 154, February 8, 1994, Noël J.A. of the Federal Court of Appeal wrote as follows at paragraph 19:
However, the right of custody is not perpetual and a custody order could not be set up against an emancipated adult child who voluntarily chooses to withdraw from parental authority. The fact that a child may, in such circumstances, still be a child of the marriage because, having left the parental home, he or she cannot provide for his or her own needs does not mean that the child remains in the custody of the parent whom he or she has chosen to leave. It is a prerequisite to the concept of custody that there be parental authority, which cannot be exercised over an emancipated adult child who chooses to withdraw from that authority. The trial judge could therefore not conclude that Stéphane was still in the custody of his mother solely on the ground that he was in need after leaving his mother's home or that the custody order made in 1977 had not, at the time in question, formally been revoked.
[10] In Wade v. Canada, [1995] T.C.J. No. 1334, October 16, 1995, Taylor J of our Court wrote as follows at paragraph 5:
... The main position of the Respondent was that since the amounts (whatever they represent) were paid directly to the three children, they do not come under the provisions for deductibility - paragraph 60(b) and subsection 60.1 of the Act. I am not aware that there is any jurisprudence which would overcome that fact, and provide for the deduction, since such direct payment were not provided for in the original agreement for alimony, as opposed to all payments thereunder being paid to the ex-spouse. That aspect of it appears to be another classic case of a Father attempting to provide a benefit directly to his children, outside the terms of an agreement with the ex-spouse, which, while undoubtedly noble and perhaps more satisfying to the Father, nevertheless negates a claim for deduction. This is aside from the fact that the children are no longer minors nor do they even reside with his ex-spouse. I am unable to find any basis upon which the claim may be favourably received.
[11] The facts in the case at bar are similar to the facts in the two cases mentioned above. The facts in this case do not meet the requirements of sections 60(b) and 60.1 of the Income Tax Act. The conditions of the agreement between the parties no longer exist. The children are of legal age and no longer live with the appellant's former spouse. If the appellant wanted to make payments directly to the children, he was free to do so.
[12] The two above-mentioned decisions run counter to an interpretation of similar legislation provided in an interpretation bulletin of Quebec's Ministère du revenu. According to that interpretation, deductibility is allowed if payments are made to the beneficiary and if the person pays an amount under an agreement to a child, whether or not of legal age.
[13] The Court prefers to rely on the above-mentioned decisions rather than on that interpretation of Quebec's Taxation Act.
[14] For the appellant, the amount of $9,600 at issue for the 1997 taxation year was not an allowable deduction for support or other periodic payment.
[14] The appeal is therefore dismissed.
Signed at Ottawa, Canada, this 27th day of September 2000.
|
"J. F. Somers" |
D.J.T.C.C.
Translation certified true
on this 17th day of September 2003.
Sophie Debbané, Revisor