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Docket: 2003-898(IT)I |
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BETWEEN: |
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LAWRENCE BORYSOWICH, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
____________________________________________________________________
Appeal heard on October 6, 2003 at Toronto, Ontario
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Before: The Honourable Justice Terrence O'Connor |
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Appearances: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent: |
Jenna Clark |
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JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 2001 taxation year is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 29th day of December 2003.
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"T. O'Connor" |
O'Connor, J.
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Citation: 2003TCC920 |
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Date: 20031229 |
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Docket: 2003-898(IT)I |
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BETWEEN: |
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LAWRENCE BORYSOWICH, |
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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
O'Connor, J.
[1] The issue in this appeal is how to determine the amount of Good and Services Tax Credit ("GSTC") to which the Appellant is entitled for the 2001 taxation year.
[2] The Appellant's entitlement to the GSTC for the 2001 taxation year was initially determined by the Minister of National Revenue (the "Minister"), GSTC Notice thereof dated July 5, 2002, in the amount of $538.00, payable in four (4) equal quarterly instalments, on the basis, as reported by the Appellant, that the Appellant's marital status was "married" for the 2001 taxation year, and he lived with his daughter, Laura, born April 1987, at the end of the 2001 taxation year.
[3] The Amended Reply to the Notice of Appeal reads in part as follows:
4. In so determining the Appellant's entitlement to the GSTC for the 2001 taxation year, the Minister made the following assumptions of fact:
(a) at the time the Appellant's initial entitlement to the GSTC for the 2001 taxation year was determined by the Minister, the initital determination was based on the fact that the Appellant lived with his daughter, Laura, born April 1987, and on the information provided by the Appellant that his marital status was "married", as reported by him on his 2001 taxation year income tax return;
(b) the Appellant and his spouse ("Fay Borysowich") lived in the same self-contained domestic establishment throughout the 2001 taxation year;
(c) and (d) deleted
(e) the Appellant and Fay Borysowich are the parents of (4) children, Laura, born April 1987, Brian, born 1984, Nicholas, born 1998 and Alexandra also born 1998;
(f) Fay Borysowich advised the CCRA, by correspondence dated June 4, 2001, that Brian was missing, and she did not specify the actual date that this circumstance had occurred;
(g) Fay Borysowich also advised the CCRA, by way of a completed questionnaire returned to the CCRA in November 2001, that Nicholas and Alexandra had been abducted;
(h) as neither the Appellant nor Fay Borysowich advised the CCRA of the date of the abduction, it was presumed to be within 6 months prior to the date Fay Borysowich notified the CCRA that the children went missing;
(i) Brian, Nicholas and Alexandra did not live with the Appellant and Fay Borysowich at the end of the 2001 taxation year; and
(j) Laura, born April 1987, lived with the Appellant and Fay Borysowich at the end of the 2001 taxation year.
Additional Fact
5. Brian, Nicholas and Alexandra did not return to the Appellant's residence in 2002 or 2003.
B. Issues to be decided
6. The issues are:
(a) whether the Minister has properly determined the Appellant's entitlement to the GSTC in respect of the 2001 taxation year; and
(b) whether the Appellant had 4 (four) "qualified dependants", as defined in subsection 122.5(1) of the Income Tax Act R.S.C. 1985 (5th supp.) c.1, (the "Act") for the 2001 taxation year.
C. Statutory provisions, grounds relied on and relief sought
7. He relies on sections 3, 122.5, 122.6, and subsection 248(1) of the "Act", as amended for the 2001 taxation year.
8. He submits that the Minister has properly determined the Appellant's GSTC, in accordance with subsection 122.5(3) of the Act.
9. He also submits that the Appellant, who was an "eligible individual" as defined in subsection 122.5(1) of the Act, had only one (1) "qualified dependant", Laura, as defined in subsection 122.5(1) of the Act.
[4] As one can see from the Amended Reply to the Notice of Appeal, the Minister has taken the position that the Appellant is only entitled to the GSTC in respect of Laura as she was the only one who resided with the Appellant at the end of the 2001 taxation year.
Analysis
[5] In my opinion the evidence does not contradict the statements and assumptions in the Amended Reply quoted above.
[6] The Appellant states that notwithstanding the abduction of Nicholas and Alexandra, who are twins, they still should be considered as qualifying as residing with the Appellant. The abduction was not the fault of the Appellant nor his wife and no evidence was submitted as to where Nicholas and Alexandra (the abductees) lived but it is clear that they did not live with the Appellant and the Appellant's wife.
[7] As a consequence of the introduction of the Goods and Services Tax, the former refundable federal sales tax credit was replaced by the GST credit. As with the sales tax credit, the GST tax credit is intended to alleviate the burden of the GST on lower income taxpayers. Although the GST did not come into effect until January 1, 1991, the GST credit applies to the 1989 and subsequent taxation years. Credits in respect of the 1989 taxation year were payable in December 1990 and April 1991. Credits in respect of 1990 and subsequent taxation years are payable in July and October of the immediately following year and in January and April of the second immediately following year.
[8] The GST credit is novel in its form of payment. The credit is calculated on the basis of tax payable for a year and then paid in quarterly instalments over the succeeding year commencing in July. For example, if a taxpayer has a GST credit calculated in respect of the 2001 income tax return, the taxpayer cannot use the credit to reduce 2001 taxes, but rather must accept payment of one-fourth of the credit in July and October 2002 and January and April 2003. That is the way the Minister acted in this case.
[9] Although the most relevant provisions of the Act, namely sections 122.5 and 122.6 have changed from time to time, what remains constant is that the person entitled to the GSTC is referred to as the "eligible individual" and the person in respect of whom the credit can be claimed is defined as the "qualified dependant". Both definitions specify that the qualified dependant, usually a child, must reside with the eligible individual in Canada.
[10] In the present appeal the only qualified dependant that resided with the Appellant was Laura and consequently the determination of the Minister was correct.
[11] Consequently the appeal is dismissed.
Signed at Ottawa, Ontario, this 29th day of December 2003.
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"T. O'Connor" |
O'Connor, J.
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CITATION: |
2003TCC920 |
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COURT FILE NO.: |
2003-898(IT)I |
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STYLE OF CAUSE: |
Lawrence Borysowich and Her Majesty the Queen |
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PLACE OF HEARING: |
Toronto, Ontario |
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DATE OF HEARING: |
October 6, 2003 |
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REASONS FOR JUDGMENT BY: |
The Honourable Justice T. O'Connor |
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DATE OF JUDGMENT: |
December 29, 2003 |
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APPEARANCES: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent: |
Jenna Clark |
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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 |