Docket: 2011-3330(IT)I
BETWEEN:
VICKI ANNE WELCH,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard
on September 28, 2012, at Hamilton, Ontario
Before: The Honourable
Justice Wyman W. Webb
Appearances:
|
For the Appellant:
|
The
Appellant Herself
|
|
Counsel for the Respondent:
|
Christopher M. Bartlett
|
____________________________________________________________________
JUDGMENT
The Appellant’s appeal is allowed,
without costs, to reflect that the total amount that she received in 2009 as a
support amount was $11,200 and not $12,000 and the matter is referred back to
the Minister of National Revenue for reconsideration and reassessment on the
basis that the total amount that the Appellant received as a support amount in
2009 was $11,200.
Signed at Ottawa, Canada, this 5th day
of October, 2012.
“Wyman W. Webb”
Citation: 2012TCC350
Date: 20121005
Docket: 2011-3330(IT)I
BETWEEN:
VICKI ANNE WELCH,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Webb J.
[1]
The issue in this
appeal is whether the Appellant was required to include in her income as
determined for the purposes of the Income Tax Act (the “Act”) for
2009 amounts that she received as spousal support even if her former spouse did
not claim a deduction for such payments and the Appellant and her former spouse
had agreed that they would request an Order of the Ontario Superior Court of
Justice confirming that the Appellant was not obligated to include such
payments in her income for the purposes of the Act. The Appellant was
reassessed to include in her income the amount of $12,000 as the spousal
support amount that she had received in 2009. The Appellant testified that she
had reviewed her bank records and the total amount that she had received in
2009 was $11,200. Counsel for the Respondent agreed that the correct amount for
spousal support for 2009 should be $11,200 and not $12,000.
[2]
When the Appellant and
her former spouse separated the spousal support amount was based on his
earnings at that time. Unfortunately he lost his job and then fell into
arrears. The Appellant and her former spouse agreed that he would not deduct
the amount that he paid as spousal support in 2009 and that she would not
include this amount in her income for 2009 for the purposes of the Act. This
agreement was to have been reflected in an Order of the Ontario Superior Court
of Justice by the end of March 2010. However, the lawyer who was working on
this matter did not submit the Order for signature until sometime later. It
seems to me that the timing of the signing of the Order is immaterial. An Order
of the Ontario Superior Court of Justice cannot change the requirements of the Act
regardless of whether the Order would have been signed in March 2010 or
sometime later. Nor can the parties themselves agree to change what is
otherwise required to be included in the Appellant’s income under the Act.
[3]
Paragraph 56(1)(b)
of the Act provides as follows:
(b)
the total of all amounts each of which is an amount determined by the formula
A – (B + C)
where
A is the total of all amounts each of which is a support amount
received after 1996 and before the end of the year by the taxpayer from a
particular person where the taxpayer and the particular person were living
separate and apart at the time the amount was received,
B is the total of all amounts each of which is a child support
amount that became receivable by the taxpayer from the particular person under
an agreement or order on or after its commencement day and before the end of
the year in respect of a period that began on or after its commencement day,
and
C is the total of all amounts each of which is a support amount
received after 1996 by the taxpayer from the particular person and included in
the taxpayer's income for a preceding taxation year;
[4]
“Support amount” is
defined in subsection 56.1(4) of the Act as follows:
“support
amount” means an amount payable or receivable as an allowance on a periodic
basis for the maintenance of the recipient, children of the recipient or both
the recipient and children of the recipient, if the recipient has discretion as
to the use of the amount, and
(a)
the recipient is the spouse or common-law partner or former spouse or common-law
partner of the payer, the recipient and payer are living separate and apart
because of the breakdown of their marriage or common‑law partnership and
the amount is receivable under an order of a competent tribunal or under a
written agreement; or
(b)
the payer is a legal parent of a child of the recipient and the amount is
receivable under an order made by a competent tribunal in accordance with the
laws of a province.
[5]
Clearly the Appellant
was receiving an allowance payable on a periodic basis for her maintenance and
the Appellant had discretion as to the use of such an amount. The definition of
“support amount” and the requirements to include the support amount received in
income do not provide an option for individuals to choose whether such amounts
will be included in income or not. If an amount that the Appellant has received
is a support amount (and not a child support amount) as defined in subsection
56.1(4) of the Act, the Appellant is required to include that amount in
her income. Individuals cannot agree to exclude such amounts from income any
more than they can agree to exclude other amounts that would be required to be
included in income under the Act. The requirement to include support
amounts in income can only be changed by Parliament – it cannot be changed by
an agreement between the Appellant and her former spouse or by an Order of the Ontario
Superior Court of Justice (regardless of when such Order was signed).
[6]
As a result the
Appellant’s appeal is allowed, without costs, to reflect that the total amount
that she received in 2009 as a support amount was $11,200 and not $12,000 and
the matter is referred back to the Minister of National Revenue for
reconsideration and reassessment on the basis that the total amount that the
Appellant received as a support amount in 2009 was $11,200.
Signed at Ottawa, Canada, this 5th day of October,
2012.
“Wyman W. Webb”
CITATION: 2012TCC350
COURT FILE NO.: 2011-3330(IT)I
STYLE OF CAUSE: VICKI ANNE WELCH AND HER MAJESTY THE QUEEN
PLACE OF HEARING: Hamilton, Ontario
DATE OF HEARING: September 28, 2012
REASONS FOR JUDGMENT BY: The
Honourable Justice Wyman W. Webb
DATE OF JUDGMENT: October 5, 2012
APPEARANCES:
|
For the
Appellant:
|
The Appellant Herself
|
|
Counsel for the
Respondent:
|
Christopher M. Bartlett
|
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the
Respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa,
Canada
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