Date: 980909
Docket: 97-3016-IT-I
BETWEEN:
M. ELENA RAMOS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasonsfor
Judgment
Christie, A.C.J.T.C.
[1]
This appeal is governed by the Informal Procedure prescribed
under section 18 and following sections of the Tax Court
of Canada Act. The year under review is 1995.
[2]
The Notice of Appeal reads:
"THE RELEVANT FACTS AND REASONS FOR APPEALING:
- ‘TAG' (2610 West Rd., 247-2220), the accounting
firm that serviced me in filing my 1995 Tax, as the knowledgeable
party (I paid for their service and for their knowledge in filing
Tax reports), suggested I claim for supporting my wholly
dependent son;
- Juan Carlos is not able to support himself financially since
he does not work, he goes to school, full time; he is presently
doing a Chemistry B.A. program at University of Toronto, this is
his final year;
- I relied on the accounting company's knowledge and
practice - that I have the right to claim for supporting my son
and further more, I relied on the Taxation authorities, that I
was to be assigned what is rightfully owed to me. I am a working
single mother who is also working towards a Bachelors in Social
Work at York University, night school and I also do community
work, I work the distress line (Telecare Etobicoke)."
[3]
The opening paragraph and paragraphs numbered 1 to 8 of the Reply
to the Notice of Appeal read:
"In reply to the Notice of Appeal for the 1995 taxation
year, the Deputy Attorney General of Canada says:
A.
STATEMENT OF FACTS
1.
He admits that the Appellant had her income tax return for the
1995 taxation year prepared by TAG Accounting Associates.
2.
He further admits that during the 1995 taxation year, the
Appellant's son was in full time attendance at the
University of Toronto.
3.
He denies all other allegations of fact contained in the
Appellant's Notice of Appeal.
4.
In computing income for the 1995 taxation year, the Appellant
claimed an amount of $5,380.00 as an equivalent to married amount
in the calculation of non-refundable tax credits.
5.
The Minister assessed the Appellant for the 1995 taxation year,
Notice of Assessment thereof mailed on May 2, 1996.
6.
In reassessing the Appellant for the 1995 taxation year, Notice
of Reassessment thereof mailed on September 3, 1996, the Minister
disallowed the claim for the equivalent to married amount in the
calculation of the non-refundable tax credits.
7.
In so reassessing the Appellant, the Minister made the following
assumptions of fact:
(a)
the Appellant is an unmarried person or a married person who
neither supported nor lived with her spouse and is not supported
by her spouse;
(b)
in filing her income tax return for the 1995 taxation year, the
Appellant sought to claim the equivalent to spouse amount for her
son Juan Carlos Vallejo, who was 21 years of age in 1995;
(c)
at all material times, Juan Carlos Vallejo was not dependent for
support on the Appellant by reason of mental or physical
infirmity;
(d)
the Appellant did not maintain a self-contained domestic
establishment and support in that establishment a child wholly
dependant for support on the Appellant either under 18 years of
age or so dependant by reason of mental or physical
infirmity.
B.
ISSUES TO BE DECIDED
8.
The issue is whether the Appellant is entitled to deduct the
equivalent to married amount in the 1995 taxation
year."
[4]
The onus is on the appellant to show that the reassessment is in
error. This can be established on a balance of probabilities.
Where the onus lies has been settled by numerous authorities
binding on this Court. It is sufficient to refer to two judgments
of the Supreme Court of Canada in this regard: Anderson
Logging Co. v. The King, [1925] S.C.R. 45 and Johnston v.
M.N.R., [1948] S.C.R. 486.
[5]
No documentary evidence was submitted at the hearing. The only
evidence before the Court is the oral testimony of the appellant.
That evidence simply does not challenge the validity of what is
set out in paragraph 7 of the Reply to the Notice of Appeal.
Indeed the appeal would have been dismissed from the Bench except
for what follows.
[6]
The statutory provisions applicable to this appeal are contained
in paragraph 118(1)(b) of the Income Tax Act. It
provides:
"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
where
A is the appropriate percentage for the year, and
B is the total of
...
(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 the married person's spouse and is
not supported by the spouse, and
(ii) whether alone or jointly with one or more other persons,
maintains a self-contained domestic establishment (in which the
individual lives ) and actually supports in that establishment 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 the other person or persons, as the case may
be,
(C) related to the individual, and
(D) except in the case of a parent or grandparent of the
individual, either under 18 years of age or so dependent by
reason of mental or physical infirmity;
an amount equal to the total of
(iii) $6,000, and
(iv) an amount determined by the formula
$5,000 - (D - $500)
where
D is the greater of $500 and the income for the year of the
dependent person."
[7]
During the course of argument counsel for the respondent informed
the Court that there was an appeal from a decision of this Court
pending before the Federal Court - Trial Division that could be
relevant to the disposition of the appeal at hand. The case
referred to is Mercier v. M.N.R., 92 D.T.C. 1681. It was
held in that case that clause 118(1)(b)(ii)(D) violated
section 15 of the Canadian Charter of Rights and Freedoms
and that the violation was not justifiable under section 1 of the
Charter. Consequently clause D was to be considered to be
of no effect and subparagraph 118(1)(b)(ii) must be read
as if clause D had not been enacted. After this appeal had been
adjourned it was soon discovered that the Crown's appeal to
the Federal Court - Trial Division had been allowed: 97 DTC 5081.
A further appeal to the Federal Court of Appeal was not
instituted.
[8]
The appeal is dismissed.
Signed at Ottawa, Canada, this 9th day of September 1998.
"Christie"
A.C.J.T.C.C.
COURT FILE
NO.:
97-3016(IT)I
STYLE OF
CAUSE:
M. Elena Ramos and
Her Majesty the Queen
PLACE OF
HEARING:
Toronto, Ontario
DATE OF
HEARING:
August 31, 1998
REASONS FOR JUDGMENT BY: Christie,
A.C.J.T.C.C.
DATE OF
JUDGMENT:
September 9, 1998
APPEARANCES:
For the
Appellant:
The appellant herself
Counsel for the
Respondent:
Annette Evans
COUNSEL OF RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
97-3016(IT)I
BETWEEN:
M. ELENA RAMOS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on August 31, 1998, at Toronto,
Ontario, by
Christie, A.C.J.T.C.
Appearances
For the
Appellant:
The appellant herself
Counsel for the Respondent: Annette
Evans
JUDGMENT
The
appeal from the reassessment made under the Income Tax Act
for the 1995 taxation year is dismissed.
Signed at Ottawa, Canada, this 9th day of September 1998.
A.C.J.T.C.C.
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