[OFFICIAL ENGLISH TRANSLATION]
Date: 19980513
Docket: 96-4187(IT)I
BETWEEN:
LYSANNE BOUSQUET,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Guy Tremblay, J.T.C.C.
Issue
[1] According to the Notice of Appeal
and the Reply to the Notice of Appeal, the issue herein is
whether the child tax benefit to which the appellant is entitled
was rightly revised down to $185.50 for the months from July 1994
to June 1995, and whether the appellant is entitled to the goods
and services tax (GST) credit for the 1993 taxation year.
[2] The respondent took into account
the income of the appellant's spouse, who became her former
spouse in March 1995. As a result of numerous debts, the
appellant's spouse was obliged to declare bankruptcy, leaving
the appellant to bear the consequences. The spouse declared
amount of $3,754 in 1993; the respondent revised that amount to
$42,512, thus affecting the appellant's child tax benefit and
GST credit.
[3] The respondent is claiming from
the appellant overpayments of $2,281.32 in child tax benefits and
$608 in GST credits.
Burden of proof
[4] The burden of proof is on the
appellant, who must establish that the assessment made by the
respondent is unfounded. This burden of proof flows from a
number of court decisions, including the Supreme Court of
Canada's judgment in Johnston v. Minister of National
Revenue.[1]
[5] In that judgment, the Supreme
Court ruled that the facts assumed by the respondent in support
of assessments or reassessments are presumed to be true until
proven otherwise. In the present case, the respondent's
assumptions of fact are set out in subparagraphs 3(a) to (f) and
paragraphs 4 and 5 of the Reply to the Notice of Appeal.
They read as follows:
[translation]
3. In drawing
up the July 20, 1995 Notice of Child Tax Benefit, the Minister of
National Revenue (''the Minister'') assumed in
particular the following facts:
(a) the children for
whom the appellant received the child tax benefit for the months
from July 1994 to June 1995 were Marylee and Kelly;
[admitted]
(b) for the 1993
taxation year, the Minister revised the net income of Guy Plante,
the appellant's spouse, from $3,754 to $42,512;
[admitted]
(c) for the 1993
taxation year, the appellant's net income was $25,671;
[admitted]
(d) for the months
from July 1994 to June 1995, with 1993 as the base year, the
appellant received a total of $2,491.58 in child tax benefits for
her children Marylee and Kelly, paid monthly as follows:
1994/1995
July
1994
$ 203.19
August
203.01
September
203.01
October
264.05
November
217.38
December
217.38
January
1995
217.38
February
217.38
March
217.38
April
217.38
May
217.38
June
96.66
Total
$2,491.58 [admitted]
(e) the Minister
adjusted the child tax benefit for the 1993 base year, as in his
view the appellant was entitled to $185.50 for the months from
July 1994 to June 1995 (approximately $15.15 per month);
[admitted]
(f) the
balance owing to the Minister on July 20, 1995 was therefore as
follows:
Amount
received
$2,491.58
Less:
Revised amount of child tax benefit
(base year
1993)
185.50
Subtotal
2,306,08
Less :
Amount transferred from
1994 child tax
benefit
24.76
Balance owing, July 20,
1995
$2,281.32
[admitted]
4. On July 14,
1995, a Notice of Redetermination was issued to the appellant
with respect to the GST credit for the 1993 taxation year.
5. In drawing
up the July 14, 1995 Notice of Redetermination of the GST credit,
the Minister assumed in particular the following facts:
(a) for the 1993
taxation year, the appellant received a total of $608 in GST
credits ($152 in each of July 1994, October 1994, January 1995,
and April 1995); [admitted]
(b) for the 1993
taxation year, the appellant's net income was $25,671;
[admitted]
(c) for the 1993
taxation year, the Minister revised the net income of Guy Plante,
the appellant's spouse, from $3,754 to $42,512;
[admitted]
(d) because the net
family income exceeded $38,080, the Minister therefore revised
the GST credits for the 1993 taxation year to zero;
[admitted]
(e) the balance
owing to the Minister on July 14, 1995 was accordingly as
follows:
1994/1995
Amount
received
$608.00
Less:
Revised
amount
0
Balance owing to the
Minister
$608.00
[admitted]
[6] In her testimony, the appellant
maintained that, during a telephone conversation with one Ms.
Lacroix, Ms. Lacroix explained to her that the respondent
had tried unsuccessfully to contact her former spouse in order to
determine whether he could demonstrate that the net income of
$42,512 was excessive. To this end, three letters were sent
to him, on November 18, 1994, December 20, 1994, and April 25,
1995. These elicited no response and no meeting took place.
The assessment was therefore made on the basis of the evidence
the respondent had available.
[7] The appellant also stated that
Ms. Lacroix had advised her to appeal to this Court; if the
judge rendered a decision reducing the income of the
appellant's former spouse, the assessment might be
amended.
[8] No evidence was produced before
this Court that would allow it to reduce the amount of the
appellant's former spouse's income. Nor does any
provision of the Income Tax Act authorize the Court to
decide arbitrarily to reduce an amount set by a party, without
additional evidence to support such a decision. Despite the
Court's sympathy for the appellant, the assessment must be
maintained.
Conclusion
[9] The appeal is dismissed.
Signed at Québec, Quebec, this 13th day of May
1998.
J.T.C.C.
Translation certified true
on this 27th day of June 2003.
Erich Klein, Revisor
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