Date:20021009
Docket:2001-1329-IT-I
BETWEEN:
GIUSEPPE
MALERBA,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Reasons
for judgment
GARON,
C.J.T.C.C.
[1]
This is an appeal from a Determination dated July 21, 2000 in
respect of the 1999 taxation year. By this Determination, the
Minister of National Revenue informed the Appellant that he was
not eligible to the Goods and Services Tax Credit with respect to
the 1999 taxation year as he was not a resident of Canada during
this particular taxation year.
[2]
The Appellant resides in Italy and because of his serious medical
condition certified by a medical practitioner he could not travel
to Canada for the hearing of this appeal.
[3]
By an Order dated November 29, 2001, issued by me, it was
ordered, having regard to all circumstances, that this appeal be
heard on its merits by way of conference call. Accordingly, the
hearing of this appeal was conducted by means of a telephone
conference.
[4]
In paragraph 9 of the Reply to the Notice of Appeal, the
Respondent made the following assumptions:
9.
In so issuing the Notice of Determination referred to in
paragraph 8 herein, the Minister made the following assumptions
of fact:
a) the
months specified for the 1999 taxation year with respect to the
Credit are July and October 2000 and January and April 2001
within the meaning of subsection 122.5(4) of the Income Tax
Act (the "Act");
b) the
Appellant was a resident of Italy and a non-resident of Canada at
the end of the 1999 taxation year; and
c) the
Appellant was not an "eligible individual" within the
meaning of subsection 122.5(1) of the Act as he was
not resident in Canada on December 31, 1999.
[5]
The Appellant deposed in the course of this telephone conference.
The Appellant is a Canadian citizen. The Appellant, a bachelor,
testified that he lived in Canada with his sister for 27 years.
He left Canada in November 1981 for health reasons. Prior to
leaving Canada, he disposed of all his properties in Canada,
including his bank accounts. He has been residing in Italy with
the same sister ever since. The Appellant is receiving from the
Canadian Government as a non-resident his old age pension and
benefits under the Canada Pension Plan. He made no visits in
Canada since 1995.
[6]
The T1 General 1999 income tax form signed by the Appellant was
filed by the Respondent as Exhibit R-1.
[7]
The issue in this appeal is whether the Appellant was entitled to
the Goods and Services Tax Credit in respect of the 1999 taxation
year.
[8]
The entitlement to the Goods and Services Tax Credit is governed
by section 122.5 of the Income Tax Act. Subsection
122.5(3) determines the amount that is deemed to have been paid
by the individual on account of his tax under Part I of the
Income Tax Act for the year during each of the months
specified for that year under subsection 122.5(4) of the
Act.
[9]
As mentioned in subsection 122.5(3) of the Act, the
taxpayer must be an eligible individual, which expression is
defined in subsection 122.5(1). This subsection reads as
follows:
"eligible individual" for a taxation year means an
individual (other than a trust) who, at the end of December 31 of
that year, is resident in Canada and is
(a)
married,
(b)
a parent of a child, or
(c)
19 years of age or over.
[10] As appears
from this definition, one of the requirements to be met is that
the taxpayer must be resident in Canada at the end of December 31
of the year in respect of which the Goods and Services Tax Credit
is claimed.
[11] The
Appellant was clearly not resident of Canada at any time in 1999
and in particular was not resident in Canada at the end of
December 31, 1999. He severed all his ties with Canada many years
ago. The Appellant himself did not dispute that he was a
non-resident of Canada in 1999. In this respect, it is worth
noting the decision of the Supreme Court of Canada in the case of
Thomson v. Minister of National Revenue, [1946] S.C.R. 209
and the decision of Judge McArthur of this Court in Smith
v. The Queen, [2000] T.C.J. No. 668. The Appellant's
Canadian citizenship is not a factor to be taken into account in
light of section 122.5 of the Income Tax Act, and more
particularly the definition of "eligible individual" in
subsection 1 of the latter section.
[12] The
Appellant is therefore not entitled to the Goods and Services Tax
Credit.
[13] For these
reasons, the appeal is dismissed.
Signed at
Ottawa, Canada, this 9th day of October 2002.
C.J.T.C.C.
COURT FILE
NO.:
2001-1329(IT)I
STYLE OF
CAUSE:
Giuseppe Malerba and
Her Majesty The Queen
PLACE OF
HEARING:
Ottawa, Ontario (Conference call)
DATE OF
HEARING:
October 8, 2002
REASONS FOR
JUDGMENT BY: The Honourable Alban
Garon
Chief Judge
DATE OF
JUDGMENT:
October 9, 2002
APPEARANCES:
Agent for
the
Appellant:
Emilia Malerba
Counsel
for the
Respondent:
Rosemary Fincham
COUNSEL OF
RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-1329(IT)I
BETWEEN:
GIUSEPPE
MALERBA,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Appeal heard
on October 8, 2002 by
way of
conference call in Ottawa, Ontario, by
the
Honourable Alban Garon
Chief
Judge
Appearances
Agent for
the
Appellant:
Emilia Malerba
Counsel
for the
Respondent:
Rosemary Fincham
JUDGMENT
The appeal from a Determination dated July 21, 2000 made under
the Income Tax Act for the 1999 taxation year is
dismissed.
Signed at
Ottawa, Canada, this 9th day of October 2002.
C.J.T.C.C.
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