Citation: 2010TCC297
Date: 20100608
Docket: 2009-1583(IT)I
BETWEEN:
KWOK WAI N CHEUNG,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
Docket: 2009-2750(IT)I
BETWEEN:
TONY CHEUNG,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
(Delivered
orally from the bench on April 28, 2010, in Vancouver, British Columbia.)
V.A. Miller, J.
[1]
Kwok Wai N Cheung and
Tony Cheung have appealed the reassessments of their 2007 taxation year. The
issue in each appeal is whether the Appellants are each entitled to claim a
Child Tax Credit (the “Credit”) in accordance with paragraph 118(1)(b.1)
of the Income Tax Act (the “Act”). The appeals were heard on common
evidence.
[2]
The Appellants are
brothers. They reside at 6571
Juniper Drive, Richmond, BC (the “Home”) with their spouses, children, parents
and sister. In total, fourteen individuals live at the Home.
[3]
The Home is a single
family dwelling which has not been converted into apartments. The Appellants
did not have separate living quarters in the Home.
[4]
Kwok Wai N Cheung and
his spouse have three children. Tony Cheung and his spouse have three children.
Their sister, Samantha, has one child.
[5]
Each Appellant and
their sister claimed a Credit for their own children.
[6]
The relevant provisions
of the Act are as follows:
118. (1) Personal Credits -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 × B
where
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is the appropriate percentage for the year, and
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(b.1) child
amount [Child Tax Credit] where
(i) a child of the
individual ordinarily resides throughout the taxation year with the individual
together with another parent of the child, $2,000 for each such child who is
under the age of 18 years at the end of the taxation year,
(4) For the purposes of subsection
118(1), the following rules apply:
(b) not more
than one individual is entitled to a deduction under subsection (1) because of
paragraph (b) or (b.1) of the description of B in that subsection
for a taxation year in respect of the same person or the same domestic
establishment and where two or more individuals otherwise entitled to such a
deduction fail to agree as to the individual by whom the deduction may be made,
no such deduction for the year shall be allowed to either or any of them;
[7]
It is the Appellants’
position that the limitation in subsection 118(4) refers to paragraph 118(1)(b.1)
which is the definition of the Credit. Further, a Credit is claimed on an
individual child basis. They stated that only one claim was made for each child
in the domestic establishment.
[8]
I disagree with the
Appellants’ interpretation. In this particular case, B, in the formula for the
calculation of the personal credits, is the total of the Credits claimed.
Subsection 118(4)(b) limits the deduction under subsection 118(1)(b.1),
in respect of the calculation of B in that subsection, to one individual in
respect of the same domestic establishment for a taxation year.
[9]
The Appellants have
agreed that they resided in the same domestic establishment.
[10]
Unfortunately, only one
individual in the Home is entitled to claim a child tax credit for the 2007 taxation
year. As the Appellants failed to agree which one of them could deduct the
Credit, none of them is allowed to deduct it.
[11]
The appeals are
dismissed.
Signed at Ottawa, Canada, this 8th
day of June, 2010.
“V.A. Miller”
CITATION: 2010TCC297
COURT FILE NO.: 2009-1583(IT)I
STYLE OF CAUSE: KWOK WAI N CHEUNG AND
THE
QUEEN
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: April 28, 2010
REASONS FOR JUDGMENT
BY: The Honourable Justice Valerie Miller
DATE OF JUDGMENT: May 4, 2010
DATE OF WRITTEN
REASONS: June 8, 2010
APPEARANCES:
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For the Appellant:
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The
Appellant himself
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Counsel for the Respondent:
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Matthew Turnell
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COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the
Respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa,
Canada
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