Date: 19981016
Docket: 97-3369(IT)I
BETWEEN:
AGYEMANG BOACHIE-YIADOM,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
McArthur, J.T.C.C.
[1] The Minister of
National Revenue (the "Minister") disallowed the
Appellant's claim for the 1994 and 1995 taxation years for a
deduction of $8,000 and $7,200 as alimony or maintenance and
child support with respect to his estranged spouse Barbara
Boachie-Yiadom and the sum of $5,380 for the same years in
respect of his child Christel born from another union.
[2] Dealing firstly
with claim number 1:
-
The Appellant and Barbara were married in March 1987 and have
been living separate and apart since November 1992. They are the
biological parents of the following children: Stephanie
Boachie-Yiadom born August 13, 1991 and Stacey Boachie-Yiadom
born October 25, 1992.
[3] After the
Minister's reassessment they had a separation agreement
prepared reflecting the following:
-
The husband shall pay to the wife the sum of $300.00 per month
per child (total $600.00 per month) for the support of the
children Stephanie and Stacey Boachie-Yiadom.
-
The support payments shall commence on December 1, 1993 and
thereafter payments shall be due on the first day of every
month.
-
The husband and wife acknowledge that they have both read this
Separation Agreement and fully understand the terms therein.
-
The husband and wife acknowledge that this Agreement is prepared
by the solicitor for the wife and the said solicitor is
witnessing the signature of the wife alone.
[4] The Appellant had
Barbara execute a single receipt for the total payments of $7,200
in 1994 and $7,200 in 1995. The Appellant claims to have
purchased $800 in clothing in 1994 or 1995, making the payment
for one of those years $8000.
[5] The
Appellant's 1994 income tax return filed by the Respondent
does not reflect a deduction of $8,000. It is surmised that this
claim by the Appellant was made at a later date. On page 1 of his
1994 return the Appellant indicates, in answer to the box that
applies to your marital status, on December 31, 1994,
"Married" in 1995 his form indicates
"Separated".
Position of the Respondent
[6] The amount
deducted by the Appellant in the 1994 and 1995 taxation years on
account of alimony were not paid by the Appellant, or if paid,
were not paid for the maintenance of the recipient, children of
the marriage or both the recipient and the children of the
marriage.
[7] The Appellant
claimed he did not live with Barbara since November 1992, yet he
then admits he did live with her for a period in 1994 and a third
child was conceived during that period. His claim for an
additional amount in 1994 was without foundation. There is no
evidence that he lived separate from Barbara. In effect, the
Respondent does not believe the Appellant.
Position of the Appellant
[8] The Appellant
submits he was separated from his wife Barbara and he supported
her and their two children: $8,000 in 1994 and $7,200 in
1995.
Analysis
[9] The Appellant did
not claim a deduction for alimony or maintenance in his 1994
return. This claim was apparently made at a later date. The
evidence was unclear in this regard. The Appellant did claim a
deduction for alimony or maintenance in his 1995 T1 return.
[10] The separation
agreement and receipt were prepared after Revenue Canada
commenced their audit. A child was born to Barbara and the
Appellant in 1995, although the separation agreement states that
"(c) they have been living separate and apart since November
14, 1992 and there is no reasonable prospect of
reconciliation".
[11] The Appellant stated
that there was an attempt made at reconciliation in 1994 when
their last child was conceived.
[12] There were no
cancelled cheques or evidence of payment of the monthly amount
other than a single receipt for the two years purportedly signed
by his wife Barbara. She did not testify.
[13] The Appellant had the
burden of proof. To establish his position, the Appellant
requires more than his oral evidence alone. Obviously, with the
inconsistencies referred to, the evidence is suspect. The
Appellant did not indicate in his 1994 return that he was
separated nor did he indicate that he made alimony or maintenance
payments of $600 per month. The Appellant admitted that he lived
in an apartment in 1994 and 1995 with a roommate who shared the
$600 a month rent. The Appellant and his wife had a child born
early in 1995. There were no cancelled cheques or money order
receipts or individual cash payment receipts. The Appellant's
wife did not testify. There was insufficient evidence to support
the Appellant's claim.
[14] With respect to the
second issue, I arrive at the same conclusion. The Appellant
submitted that he supported his child Christel, who now lives in
Ghana. He states that he supported Christel by sending his sister
money from time to time, in Ghana, for his child's support.
He stated further that Christel came to live with him for seven
months during 1994 and he was her sole guardian and supporter.
She was five years old. During this period, he was living with a
roommate and working full time. He stated in cross-examination
that while he was working, a friend, Sam, looked after Christel
without compensation. The Appellant stated that she did not go to
school during the seven-month period because she was not a legal
resident of Canada. The Appellant had no receipts for payment of
his rent during 1994 and 1995. He stated he had no lease because
it was a sublet and he paid rent in cash. To be successful the
Appellant must satisfy the provision of paragraph
118(1)(b) of the Income Tax Act which reads:
"SECTION 118:
(1) For the purpose of computing the
tax payable under this Part by an individual for a taxation year,
there may be deducted an amount determined by the formula
A x B
...
(b) Wholly dependent
person - in the case of an individual not entitled to a
deduction by reason of paragraph (a) who, at any time
in the year,
(i) is an
unmarried person or a married person who neither supported nor
lived with his spouse and is not supported by his spouse, and
(ii) whether by himself
or jointly with one or more other persons, maintains a
self-contained domestic establishment (in which the individual
lives) and actually supports therein a person who, at that time,
is
(A)
except in the case of a child of the individual, resident in
Canada,
(B)
wholly dependent for support on the individual, or the individual
and such other person or persons, as the case may be,
(C)
related to the individual, and
..."
[15] There is insufficient
evidence to support the Appellant's claim. The Appellant is
not entitled to claim in the 1994 and 1995 taxation years
non-refundable tax credits for an equivalent-to-married
amount in respect of his child residing in Ghana. The Appellant
did not maintain a self-contained domestic establishment and
actually support in that establishment the child within the
meaning of paragraph 118(1)(b) of the Income Tax
Act, and therefore, was properly reassessed to disallow
the credits he claimed for those years in respect of the
child.
[16] The appeal is
dismissed.
Signed at Ottawa, Canada, this 16th day of
October 1998.
J.T.C.C.
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