[1] This is an application for judicial review of a Tax Court judgment dated May 15, 2002 dismissing Mr. Milliron's income tax appeal relating to 1998 and 1999: Milliron v. Canada, [2002] T.C.J. No. 252 (QL). The issue before this Court is whether the Tax Court Judge was correct when he concluded that Mr. Milliron is not entitled to deduct child support payments made in those years.

[2] In February of 1997, Mr. Milliron and Ms. Jones, who was then his spouse, entered into a separation agreement under which he was obliged to pay Ms. Jones child support in a stipulated amount for their two children:

... UNTIL THE WIFE is employed in a single, full-time job, or until December, 1997, whichever comes first. AT THAT TIME, these maintenance and support monies will be renegotiated to a lesser amount.

[3] In December of 1997, Mr. Milliron and Ms. Jones executed a second document that reduced the child support payments by one-half. The opening clause of that document reads as follows:

By mutual consent ... Spousal Support and Child Support payments have been altered. Beginning on November 15, 1997 the following changes were mutually agreed upon: ...

There follows a list of changes, including two clauses that reduce the child support payments by one-half.

[4] There is no dispute as to the meaning of the provisions of the Income Tax Act that are relevant to this case. They may be summarized as follows. Until 1997, child support payments made pursuant to a court order or written agreement were deductible by the paying parent, provided certain conditions were met. The Income Tax Act was amended in 1997 so that child support payments are not deductible if they are made pursuant to an agreement or court order made after April 1997, or if they are made pursuant to an agreement or court order made in or before April 1997 that is varied after April 1997 to change the amount of child support.

[5] It was the position of the Crown that the child support payments Mr. Milliron made in 1998 and 1999 were made pursuant to the December 1997 document, and are not deductible because the December 1997 document is either a new agreement or a variation of the February 1997 agreement.

[6] Mr. Milliron argued in the Tax Court, and also in this Court, that the child support payments were made pursuant to the February 1997 agreement, and that the December 1997 document was not a new agreement or a variation of the February 1997 agreement, but a document that merely recognizes or acknowledges a 50% reduction in child support that was agreed to in February 1997, and is implicit in the February 1997 agreement. In that regard, Mr. Milliron relies upon the renegotiation clause referred to above.

[7] The Tax Court Judge rejected Mr. Milliron's argument and accepted the argument of the Crown. We are all of the view that he was correct to do so. The flaw in Mr. Milliron's argument is that the renegotiation clause in the February 1997 agreement does not stipulate any amounts. It is at most an agreement to renegotiate. Even if Mr. Milliron and Ms. Jones intended in February of 1997 that child support would be reduced by one-half in December of 1997, it was not until December of 1997 that the parties made a written agreement giving effect to that intention.

[8] Mr. Milliron also argued that he was induced by Revenue Canada officials to claim the deductions as he did, and that he should be entitled to some relief for "officially induced error". The Tax Court has no jurisdiction to give a remedy for incorrect advice. The jurisdiction of the Tax Court in an income tax appeal is limited to determining whether the assessment under appeal is correct, based on the facts and the relevant law. Therefore, the Tax Court Judge was correct to disregard Mr. Milliron's request for relief on that ground.

[9] For these reasons, this application for judicial review will be dismissed.

(Sgd.) "Karen R. Sharlow"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-401-02

STYLE OF CAUSE: Mark Milliron v. Her Majesty the Queen

PLACE OF HEARING: Vancouver, B.C.

DATE OF HEARING: June 24, 2003

REASONS FOR JUDGMENT: LÉTOURNEAU, SHARLOW, MALONE JJ.A.

RENDERED FROM THE BENCH BY: SHARLOW, J.A.

APPEARANCES:

Mr. Mark Milliron FOR THE APPLICANT

on his own behalf

Mr. Ron Wilhelm & FOR THE RESPONDENT

Ms. T. Nadine Taylor Pickering

SOLICITORS OF RECORD:

Mr. Mark Milliron FOR THE APPLICANT

on his own behalf

Mr. Morris Rosenberg FOR THE RESPONDENT

Deputy Attorney General of Canada

Summaries

Summary Under

Tax Topics - Income Tax Act - Section 60 - Paragraph 60(b)

In February 1997 the taxpayer and his wife entered into a separation agreement in which it was agreed that in December 1997 the maintenance and...

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Milliron v. Canada, 2003 DTC 5490, 2003 FCA 283 (FCA)

Citations2003 DTC 5490, 2003 FCA 283

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Citations
2003 DTC 5490, 2003 FCA 283