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Citation: 2005TCC221 Date: 20050426 Docket: 2003-3849(IT)I |
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BETWEEN: |
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MICHAEL JAMES DOCKERY, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
REASONS FOR JUDGMENT
(delivered orally from the Bench at
Calgary, Alberta, on June 16, 2004)
[1] This appeal pursuant to the Informal Procedure was heard at Calgary, Alberta on June 16, 2004. The Appellant was the only witness.
[2] Paragraphs 4 to 11 inclusive of the Reply to the Notice of Appeal set out the matters in issue. They read:
4. In computing income for the 2000 and 2001 Taxation Years, the Appellant claimed in the computation of his non-refundable tax credits and tax payable, the amounts of $6,140 and $6,293 respectively for a wholly dependant person in respect of his son, Brendan.
5. By means of Notices of Reassessment dated December 2, 2002, the Minister of National Revenue (the "Minister") disallowed the Appellant's claim for the wholly dependent person in the 2000 and 2001 Taxation Years as the Appellant was required to make support payments in respect of Brendan in the 2000 and 2001 Taxation Year and is prohibited by subsection 118(5) of the Income Tax Act (the "Act") from the claim for the wholly dependent person amount under paragraph 118(1)(b) of the Act.
6. The Appellant filed a Notice of Objection received March 3, 2003.
7. The Minister confirmed the reassessments by means of a Notification of Confirmation dated July 16, 2003.
8. By way of Order dated December 16, 2003 the time period in which to appeal was extended to the date of the order and the Notice of Appeal was deemed to be valid.
9. In reassessing the Appellant for the 2000 and 2001 Taxation Years, and in confirming those reassessments, the Minister assumed the same facts as follows:
(a) the Appellant is divorced from Donna Marlene Dockery (the "Former Spouse");
(b) the Appellant and his Former Spouse have two children (the "Children") as follows:
Name Date of Birth
Evan Dockery ("Evan") December 26, 1996
Brendan Dockery ("Brendan") September 10, 1995
(c) pursuant to Matrimonial Settlement Agreement amendments dated January 31, 2000 (the "Matrimonial Amendments"), the Appellant and the Former Spouse have shared custody of the Children with approximately 50% to each the Former Spouse and the Appellant;
(d) the Matrimonial Amendments requires that the Appellant pay to the Former Spouse $506.76 on the first day of each month for the support of the Children;
(e) pursuant to a Divorce Judgment and Corollary Relief Order dated February 8, 2000 (the "Divorce Judgment"), the Appellant and the Former Spouse have entered shared custody of the Children, 60% to the Former Spouse and 40% to the Appellant;
(f) the Divorce Judgment orders the Appellant to pay the Former Spouse %505.76 per month for the support of the Children payable on the 1st day of each and every month, commencing February 1, 1999; and
(g) the Appellant was required to pay support amounts to the Former Spouse in respect of the Children pursuant to the Divorce Judgment in the 2000 and 2001 Taxation Years.
B. ISSUES TO BE DECIDED
10. The issue is whether the Appellant is entitled to claim the wholly dependent person amount in respect of Brendan in the computation of his non-refundable tax credits and tax payable for the 2000 and 2001 Taxation Years.
C. STATUTORY PROVISIONS, GROUNDS RELIED ON ANDRELIEF SOUGHT
11. He relies on sections 56.1 and 60.1, subsections 118(5) and 248(1) and paragraph 118(1)(b) of the Act as amended for the 2000 and 2001 Taxation Years.
[3] The assumptions except for 9 (e), were not refuted. Custody was amended by percentage to be 50-50 by an agreement filed as Exhibit A-1, to be "shared custody".
[4] Subsection 118(5) of the Income Tax Act (the "Act") specifically provides that non amount may be deducted by a taxpayer under subsection 118(1) where the individual is required to pay a support amount within subsection 56.1(4) in respect of the person, namely the children.
[5] Unfortunately, the Appellant is required to pay the support amount respecting both children and therefore he is not entitled to the claims before the Court.
[6] The Appellant is actually travelling hundreds of kilometres from his workplace to Calgary to exercise custody of his children. He has not the funds to pay Revenue Canada its assessment due to his attempt to be a good father and due to the support requirements pursuant to the Court Orders.
[7] In these circumstances and because of his unusually exemplary behaviour, it is recommended that he be allowed to pay the taxes in question in reasonably
monthly instalments and without any interest charges being levied.
Signed at Calgary, Alberta, this 26th day of April 2005.
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"D.W. Beaubier" |
Beaubier, J.
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CITATION: |
2005TCC221 |
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COURT FILE NO.: |
2003-3849(IT)I |
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STYLE OF CAUSE: |
Michael James Dockery v. The Queen |
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PLACE OF HEARING: |
Calgary, Alberta |
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DATE OF HEARING: |
June 16, 2004 |
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ORAL REASONS FOR JUDGMENT BY: |
The Honourable Justice Beaubier |
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DATE OF ORAL REASONS: |
April 26, 2005 |
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APPEARANCES: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent: |
John-Paul Hargrove |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
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Firm: |
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For the Respondent: |
John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Canada |