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Docket: 2003-1832(IT)I |
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BETWEEN: |
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KAREN KEHLER, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
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Appeals heard on October 22, 2003 at Winnipeg, Manitoba
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Before: The Honourable Justice L.M. Little |
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Appearances: |
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For the Appellant: |
The Appellant herself |
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Agent for the Respondent: |
Julien Bedard (Student-at-law) |
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JUDGMENT
The appeals from the assessments made under the Income Tax Act for the 2000 and 2001 base taxation years are dismissed, without costs, in accordance with the attached Reasons for Judgment.
Signed at Vancouver, British Columbia, this 4th day of May 2004.
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Little J.
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Citation: 2004TCC337 |
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Date: 20040504 |
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Docket: 2003-1832(IT)I |
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BETWEEN: |
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KAREN KEHLER, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent.
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REASONS FOR JUDGMENT
Little J.
A. FACTS:
[1] The Appellant and her husband, Leroy Kehler, were married in 1981.
[2] Two children were born of the marriage:
Daughter - 1985
Son - 1989
(The children are collectively referred to as the "Children".)
[3] The Appellant and her husband separated in September 2001. Following the separation the Children lived with their father at the family home in the City of Winnipeg, Manitoba.
[4] The Appellant maintains that all child tax benefits paid with respect to the Children were deposited in an account at the Cambrian Credit Union. The Appellant said that this account was a Joint Account and that she and her husband had signing authority on the bank account (the bank account is hereinafter referred to as the "Joint Account").
[5] The Appellant said that when she filed her income tax return for the 2001 taxation year she became entitled to a tax refund of approximately $1,500.00.
[6] The Appellant also stated that the tax refund which was issued by the Canada Customs and Revenue Agency ("CCRA") was deposited in the Joint Account.
[7] The Appellant maintains that the only access that she made to the Joint Account after the separation in September 2001 was made by her to remove approximately $1,000.00 of the $1,500.00 tax refund that had been deposited by the CCRA.
[8] The Appellant contends that all of the child tax benefits that have been paid since the separation were deposited in the Joint Account. The Appellant said that she has never had access or attempted to have access to any of the moneys in the Joint Account other than the one time, as noted above, when she removed a portion ($1,000.00 out of $1,500.00) of the tax refund.
[9] The Minister of National Revenue (the "Minister"), by Notice dated October 18, 2002, advised the Appellant that she was in receipt of Canada Child Tax Benefit ("CCTB") overpayments in the amount of $1,161.54 for the 2000 base period and $824.40 for the 2001 base taxation year.
B. ISSUE:
[10] Is the Appellant required to include in her income any portion of the Child Tax Benefits that were deposited in the Joint Account after the separation.
C. ANALYSIS:
[11] The relevant legislation in the Income Tax Act (the "Act") reads as follows:
122.6 "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, . . .
[12] Subsection 122.62(4):
(4) Person ceasing to be an eligible individual. Where during a particular month a person ceases to be an eligible individual in respect of a particular qualified dependant (otherwise than because of the qualified dependant attaining the age of 18 years), the person shall notify the Minister of that fact before the end of the first month following the particular month.
[13] During the hearing before the Court the Appellant made the following statements:
(a) Around July 5, 2002 she called the CCRA to ask them not to direct deposit any money in the Joint Account that she shares with her spouse. Thereafter she received the child tax benefits through the mail; (Transcript, page 29)
(b) When asked by counsel for the Respondent if she notified the Minister of her position the Appellant said:
As far as the child tax benefit credits go, no, I did not. I didn't notify anybody of anything. (Transcript, p. 28)
(c) The Appellant did not notify the CCRA that she no longer had the care of her children because she was not aware of that obligation; (Transcript, page 31);
(d) Until October 22, 2003 (the date of the hearing) the Appellant had not notified the CCRA that she was no longer living with her children; (Transcript, page 33)
(e) The CCRA is aware of the Appellant's change of address. (Transcript, page 33)
[14] Subsection 122.62(4) of the Act requires a taxpayer to notify the Minister if she ceases to be an "eligible individual". An "eligible individual" is an individual who resides with the qualified dependants pursuant to section 122.6 of the Act. In July 2002 the Appellant did notify the Minister of her change of address and asked them to no longer deposit the child tax credit benefits in the Joint Account. The Appellant did not notify the CCRA that she no longer lived with her qualified dependants. Given that an individual can move residences, ask for a change in mode of payment and still reside with the qualified dependants, the Appellant's notification of July 2002 does not satisfy the notification requirements of subsection 122.62(4) of the Act. In addition, the Appellant clearly admitted on page 28 of the transcript that she did not notify the CCRA with respect to the child tax credit benefits.
[15] Given the Appellant's failure to notify the Minister that she ceased to be an "eligible individual" pursuant to subsection 122.62(4) of the Act, the Appellant's appeal should be dismissed, without costs.
Signed at Vancouver, British Columbia, this 4th day of May 2004.
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Little J.
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CITATION: |
2004TCC337 |
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COURT FILE NO.: |
2003-1832(IT)I |
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STYLE OF CAUSE: |
Karen Kehler and Her Majesty the Queen |
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PLACE OF HEARING: |
Winnipeg, Manitoba |
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DATE OF HEARING: |
October 22, 2003 |
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REASONS FOR JUDGMENT BY: |
The Honourable Justice L.M. Little |
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DATE OF JUDGMENT: |
May 4, 2004 |
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APPEARANCES: |
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For the Appellant: |
The Appellant herself |
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Agent for the Respondent: |
Julien Bedard (Student-at-law) |
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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: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |