96-4636(IT)I
BETWEEN:
BEVERLEY RECOSKIE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on July 13, 1998, at Pembroke, Ontario, by
the Honourable Deputy Judge J.F. Somers
Appearances
For the Appellant: The Appellant herself
Counsel for the Respondent: S. Tataryn
JUDGMENT
The appeal from the assessments made under the Income Tax Act for the 1992, 1993 and 1994 taxation years is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 5th day of August 1998.
|
"J.F. Somers" |
D.J.T.C.C.
Date: 19980805
Docket: 96-4636(IT)I
BETWEEN:
BEVERLEY RECOSKIE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Somers, D.J.T.C.C.
[1] This appeal was heard in Pembroke, Ontario, on July 13, 1998, pursuant to the Informal Procedure of this Court concerning the Appellant's 1992, 1993 and 1994 taxation years.
[2] The issues are whether:
(a) the Appellant was entitled to receive child tax benefit (CTB) in respect of more than one "qualified dependant" for the months of February 1993 to June 1993 of the 1992/1993 benefit years and for the months of July 1993 to December 1993 of the 1993/1994 benefit years; and
(b) the Appellant was overpaid CTB in the amount of $425.00 and $510.00 for the months of February 1993 to June 1993 of the 1992/1993 benefit years and for the months of July 1993 to December 1993 of the 1993/1994 benefit years respectively.
[3] The Respondent relies on sections 122.6, 122.61 and 122.62 and subsections 164(2), 165(3.1), 225.1(2), 248(1) and 252(4) of the Income Tax Act (the "Act") as amended for the 1991 and 1992 "base taxation years" which relate to the 1992/1993 and 1993/1994 benefit years respectively.
[4] The Respondent submits that the Appellant was not entitled to receive CTB calculated pursuant to section 122.61 of the Act, for the months of February to June 1993 of the 1992/1993 benefit years and for the months of July to December 1993 of the 1993/1994 benefit years, for more than one "qualified dependant", as the Appellant was not the "eligible individual", within the meaning of section 122.6 of the Act, of Richard Recoskie, as she was not the parent who primarily fulfilled the responsibility for the care and upbringing of Richard Recoskie for the said periods.
[5] In computing the Appellant's CTB for the 1992/1993 and 1993/1994 benefit years, the Minister made the following assumptions of fact which were admitted, denied or ignored by the Appellant:
"(a) the Appellant and her ex-spouse, namely Andrew Recoskie, separated on or about September 1, 1990 and were divorced in October 1992; (admitted)
(b) at all relevant times, the spouse and her ex-spouse were the parents of two "qualified dependants" within the meaning of section 122.6 of the Act, namely Richard and Adam Recoskie; (admitted)
(c) starting February 1993, the Appellant's ex-spouse was the parent responsible for the support, care and upbringing of one of the two "qualified dependants" described in subparagraph 14(b) above, namely Richard Recoskie; (admitted)
(d) the Appellant was not the "eligible individual" within the meaning of section 122.6 of the Act, in respect of Richard Recoskie, starting February 1993 for purposes of calculating CTB pursuant to section 122.61 of the Act; (admitted)
(e) with respect to the 1992/1993 benefit years, the Appellant was entitled to receive CTB for the month of January 1993 in respect of two "qualified dependants" and only for one "qualified dependant" for the months of February 1993 to June 1993; (ignored)
(f) with respect to the 1993/1994 benefit years, the Appellant was entitled to receive CTB for only one "qualified dependant"; (admitted)
(g) with respect to the 1992/1993 benefit years, the Appellant received CTB in the amount of $170.00 for the months of January to June 1993, for a total of $1,020.00; (admitted)
(h) with respect to the 1992/1993 benefit years, the Appellant was entitled to receive CTB in the amount of $170.00 for the month of January 1993 and $85.00 for the months of February to June 1993, for a total of $595.00; (ignored)
(i) with respect to the 1992/1993 benefit years, CTB in the amount of $425.00 was overpaid to the Appellant for the months of February to June 1993; (denied)
(j) with respect to the 1993/1994 benefit years, the Appellant received CTB in the amount of $170.00 for the months of July 1993 to December 1993, for a total of $1,020.00; (admitted)
(k) with respect to the 1993/1994 benefit years, the Appellant was entitled to receive CTB in the amount of $85.00 for the months of July 1993 to December 1993, for a total of $510.00; (admitted) and
(l) with respect to the 1993/1994 benefit years, CTB in the amount of $510.00 was overpaid to the Appellant for the months of July 1993 to December 1993." (denied)
[6] The Appellant and her ex-spouse were married in 1972; two children were born from that union, namely Richard born on September 25, 1977 and Adam born on May 29, 1979. The Appellant and her ex-spouse were divorced in 1992 and bound by an amended separation agreement as of February 1, 1994.
[7] The Appellant thought that she was entitled to the CTB pertaining to Richard as she had joint custody of him. In fact Richard moved in with his father in February 1993. The Appellant admitted that she was not the "eligible individual" within the meaning of section 122.6 of the Act in respect of Richard as of February 1993.
[8] The definition of "eligible individual" in section 122.6 of the Act reads as follows:
"eligible individual" - "eligible individual" in respect of a qualified dependant at any time means a person who at that time
(a) resides with the qualified dependant,
(b) is the parent of the qualified dependant who primarily fulfils the responsibility for the care and upbringing of the qualified dependant,..."
[9] Evidence has shown that Richard moved in with his father in February 1993. The Respondent rightly concluded that the Appellant was not the "eligible individual" within the meaning of section 122.6 of the Act as she was not the parent who primarily fulfilled the responsibility for the care and upbringing of Richard for the said periods.
[10] The appeal is dismissed.
Signed at Ottawa, Canada, this 5th day of August 1998.
|
"J.F. Somers" |
D.J.T.C.C.
COURT FILE NO.: 96-4636(IT)I
STYLE OF CAUSE: Beverley Recoskie and H.M.Q.
PLACE OF HEARING: Pembroke, Ontario
DATE OF HEARING: July 13, 1998
REASONS FOR JUDGMENT BY: the Honourable Deputy Judge J.F. Somers
DATE OF JUDGMENT: August 5, 1998
APPEARANCES:
For the Appellant: The Appellant herself
Counsel for the Respondent: S. Tataryn
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada