[OFFICIAL ENGLISH TRANSLATION]
97-590(IT)I
BETWEEN:
ÉLIZABETH PELLETIER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on January 7, 1998, at Québec, Quebec, by
the Honourable Judge G. Tremblay
Appearances
Counsel for the Appellant: The Appellant herself
Counsel for the Respondent: Alain Gareau
JUDGMENT
The appeal from the assessment made under the Income Tax Act with respect to the 1993 and 1994 taxation years is dismissed in accordance with the attached Reasons for Judgment.
Signed at Québec, Canada, this 26th day of January 1998.
|
"Guy Tremblay" |
J.T.C.C.
Translation certified true
on this 3rd day of June 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 19980126
Docket: 97-590(IT)I
BETWEEN:
ÉLIZABETH PELLETIER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
G. Tremblay, J.T.C.C.
Point at issue
[1] According to the Notice of Appeal and the Reply to the Notice of Appeal, the issue is whether, during the 1993 and 1994 taxation years, the appellant had, as the respondent submits, a common-law spouse by the name of Éric Porlier. If so, did the respondent correctly compute Mr. Porlier's income in calculating the child tax benefit for 1993 and 1994 as $2,796.40 and as $3,794.05 respectively?
[2] According to the appellant, Mr. Porlier was just a fellow tenant. If he was the appellant's common-law spouse, was the Minister right to disallow the goods and services tax (GST) credit for 1993 and revise to nil the appellant's equivalent-to-married credit in the amount of $356.50 for her son Maxime? According to the appellant, Éric Porlier was never her common-law spouse but a co-tenant.
Burden of proof
[3] The appellant has the burden of showing that the respondent's assessments are incorrect. This burden of proof results from a number of judicial decisions, including a decision of the Supreme Court of Canada in Johnston v. Minister of National Revenue.[1]
[4] In Johnston, the Court held that the facts assumed by the respondent in support of his decision are presumed to be true until proven otherwise. In the case at bar, the facts assumed by the respondent are set out in subparagraphs (a) to (l) of Paragraph 7 of the Reply to the Notice of Appeal. This paragraph reads as follows:
[TRANSLATION]
7. In making the notices of determination for child tax benefits for the 1993 and 1994 base taxation years, the reassessments for the appellant for the 1993 taxation year, and the assessment for the 1994 taxation year, the Minister relied, inter alia, on the following facts:
(a) on her tax return for the 1992 taxation year, the appellant indicated the following address: 526 Route des Prêtres, St-Pierre, Ile d'Orléans, Quebec; [admitted]
(b) on his tax return for the 1992 taxation year, Éric Porlier (hereinafter the "common-law spouse") indicated the following address: 526 Route des Prêtres, St-Pierre, Ile d'Orléans, Quebec; [no knowledge]
(c) on her tax return for the 1993 taxation year, the appellant indicated the following address: 526 Route des Prêtres, St-Pierre, Ile d'Orléans, Quebec; [admitted]
(d) on a T4 form issued in Mr. Porlier's name by "Election Activities" for the 1993 taxation year, the address indicated was 526 Route des Prêtres, St-Pierre, Ile d'Orléans, Quebec; [no knowledge]
(e) on her tax return for the 1994 taxation year, the appellant indicated the following address: 897 Gabrielle-D'Anneville, Beauport, Quebec; [admitted]
(f) on his tax return for the 1994 taxation year, the common-law spouse indicated the following address: 897 Gabrielle-D'Anneville, Beauport, Québec; [no knowledge]
(g) Ms. Porlier, the mother of the common-law spouse, stated that Éric Porlier had lived with the appellant since 1992; [no knowledge]
(h) the appellant admitted that she had lived with the common-law spouse since 1992 but that he never gave her any money; [admitted]
(i) the appellant separated from her common-law spouse in October 1995; [admitted]
(j) consequently, the Minister revised the appellant's non-refundable equivalent-to-married tax credits for her son Maxime to nil for the 1993 and 1994 taxation years; [admitted]
(k) the Minister also took the common-law spouse's income into account in revising the appellant's child tax benefits for the 1993 and 1994 base taxation years to $2,796.40, for the 1993 base taxation year, and to $3,794.05 for the 1994 base taxation year; [no knowledge]
(l) in addition, the Minister also took the common-law spouse's income into account in revising the appellant's goods and services tax credit to nil and determined an excess amount of $356.50 for the 1993 taxation year. [admitted]
Proof of the facts
[5] Following the above admissions, the evidence was completed by the testimony of the appellant and Muguette Nadeau, an appeals officer of the respondent, and by the filing of Exhibits I-1 to I-8.
[6] As a result of the appellant's testimony and the filing of Exhibits I-1, I-2, I-5 and I-6, that is, the tax returns of the appellant and Mr. Porlier, the evidence showed that, during the 1992 and 1993 taxation years, the appellant and Éric Porlier lived at 526 Route des Prêtres, St-Pierre, Ile d'Orléans, Quebec.
[7] Moreover, according to Exhibits I-3 and I-6 (1994 tax returns) and the appellant's admission, she and Éric Porlier lived at 897 Gabrielle-D'Anneville Street, Beauport, Quebec, in 1994.
[8] In addition, in a telephone call on March 29, 1995, to appeals officer Muguette Nadeau (Exhibit I-4), the appellant admitted that Mr. Porlier had lived with her since 1992 and that she had left him in October 1995 as a result of a court case involving the children.
[9] The appellant met Mr. Porlier while taking courses at the Université Laval's École de théatre. The appellant's spouse had left her in November 1991. Mr. Porlier came to live with her in May 1993. According to the appellant, the dwelling on des Prêtres Street, Ile d'Orléans, had eleven rooms. Mr. Porlier occupied one room. It was the same in Beauport. Mr. Porlier bought his own food, i.e., about $200 per month. He did not give her any money. She testified that she did this to help him out.
[10] According to Ms. Nadeau, in a telephone call to the appellant on January 31, 1995, Ms. Pelletier told her that Mr. Porlier had gone back to his mother's. Ms. Nadeau called Mr. Porlier's mother who told her that her son had been Élizabeth Pelletier's common-law spouse since 1992.
[11] Having regard to the evidence as a whole, the Court finds that the appellant and Mr. Porlier were common-law spouses in 1992, 1993 and 1994. Accordingly, under the provisions of 252(3) and 252(4) of the Act, the appellant and Mr. Porlier are deemed to be spouses of each other during the 1992, 1993 and 1994 taxation years.
[12] No evidence was produced to determine the common-law spouse's income for the 1993 and 1994 base taxation years (para. [4]: 7(k)), the calculations revising the goods and services tax credit to zero and the excess amount of $356.50 (para. [4]: 7(l)).
[13] The assessment issued against the appellant is therefore correct.
Conclusion
[14] The appeal is dismissed.
|
"Guy Tremblay" |
J.T.C.C.
Quebec, Canada
January 26, 1998
Translation certified true
on this 3rd day of June 2003.
Sophie Debbané, Revisor