Docket: 2008-719(IT)I
BETWEEN:
ABBEY KATEREGGA SIRIVAR,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeals
heard on October 24, 2008, at Toronto, Ontario
By: The Honourable Justice
Campbell J. Miller
Appearances:
|
For the Appellant:
|
The
Appellant himself
|
|
Counsel for the Respondent:
|
Hong Ky
(Eric) Luu
|
____________________________________________________________________
JUDGMENT
The
appeals from the reassessments made under the Income Tax Act for the
2003 and 2004 taxation years are allowed, and the reassessments are referred
back to the Minister of National Revenue for reconsideration and reassessment
on the basis that in computing income, the Appellant is entitled to deduct child support amounts of $4,800
in each of 2003 and 2004. Interest and penalties are to be readjusted
accordingly.
The
purported appeal from the assessment made under the Income Tax Act for
the 2005 taxation year is quashed.
The $100
filing fee is to be refunded to the Appellant.
Signed at Ottawa, Canada, this 13th
day of February 2009.
“Campbell J. Miller”
Citation: 2009 TCC 100
Date: 20090213
Docket: 2008-719(IT)I
BETWEEN:
ABBEY KATEREGGA SIRIVAR,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Miller J.
[1]
Mr. Abbey Sirivar
appeals, by way of the Informal Procedure, the reassessments of the
Minister of National Revenue of his 2003, 2004 and 2005 taxation years. Mr. Sirivar
raised several issues in his appeals though dropped one at trial and raised
others. I will attempt to identify what I believe are the issues left before
me:
(i) Whether 2005 is properly before the
Court?
(ii)
The deductibility of
child support amounts in 2003 and 2004 of $6,640 and $4,800.
(iii)
With respect to the
2003 taxation year, whether the Minister failed to credit Mr. Sirivar for withholdings
he claims were deducted for Canada Pension Plan (“CPP”) and income tax and
remitted by Alterna Savings.
(iv)
Interest and penalties
with respect to 2003, 2004 and 2005.
(i) Is the 2005 taxation year properly before
the Court?
[2]
No, it is not. There is
no evidence that a Notice of Objection was ever filed pursuant to subsection
165(1) of the Income Tax Act. Certainly no such document was produced.
Mr. Sirivar did produce a letter dated September 28, 2006 from the Canada
Revenue Agency which referred to an objection to the 2005 taxation year, but
this can only be a mistake because Mr. Sirivar did not file his 2005 tax return
until January 2007. On balance, I conclude Mr. Sirivar failed to file a Notice
of Objection for 2005 on a timely basis precluding him from now raising the
2005 taxation year in this appeal.
(ii) Is Mr. Sirivar
entitled to a deduction for child support amounts of $6,640 (at trial Mr.
Sirivar increased that amount to $9,761) in 2003 and $4,800 in 2004?
[3]
Mr. Sirivar testified
that he was required by Court Order to pay $400 per month in child
support. Before dealing with additional payments in 2003, Mr. Sirivar must
satisfy me that indeed any payments he made for child support were made
pursuant to an Order of a Court made prior to May 1997. This is a requirement
pursuant to subsections 60(b) and 56.1(4) of the Act. At trial,
Mr. Sirivar provided a copy of a Court Order from the Ontario Superior
Court of Justice dated July 27, 2007 which ordered that Mr. Sirivar’s
obligation to pay $400 per month be terminated effective May 31, 2007.
Unfortunately this Order did not identify the Order which gave rise to the
obligation to pay the $400. Mr. Sirivar did provide support for a finding
that there was a child support Order dated June 3, 1986 ordering payments of
$300 per month. He testified this Order was varied shortly thereafter to
increase the amount to $400. At the time of trial, he produced no evidence
of that subsequent Order. I therefore allowed him several weeks to locate the
Order which ordered payment of $400 per month. In that time, Mr. Sirivar was
able to provide a copy of an Order of Judge Thompson dated April 23, 1987
which did in fact order payment of $400 per month commencing February 1, 1987
for child support. I accept Mr. Sirivar’s testimony that the $400 per
month was paid (albeit by way of garnishment) pursuant to this Order, and
therefore, pursuant to subsections 60(b) and 56.1(4) of the Act,
he is entitled to a deduction of $4,800 in both 2003 and 2004.
[4]
Mr. Sirivar attempted
to prove that there were additional garnishments in 2003, but the
computer-generated printouts that he relied upon in support of that position
(Exhibit A-3) appear to relate to earlier years. They do not prove payment of
anything over and above the $400 per month in the 2003 taxation year.
(iii) With respect to
the 2003 taxation year, did the Minister fail to credit Mr. Sirivar with
overpayments of CPP and income tax he claims may have been remitted by Alterna
Savings (formerly CS Co-op), the organization which handled Mr. Sirivar’s
self-funded leave account?
[5]
The facts of the matter
were confusing, but I need not try to straighten them out as there are a few
fundamental facts which, unfortunately for Mr. Sirivar, result in the dismissal
of this part of his appeal.
[6]
Firstly, I will deal
with the CPP overpayments to which Mr. Sirivar believes he is entitled to a
refund. Mr. Sirivar brought no request for a ruling on this issue as required
by section 26.1 of the Canada Pension Plan. Only if such a
ruling is requested and the taxpayer disagrees with the ruling can the taxpayer
then appeal to the Minister, and it is only from that decision of the Minister
that the taxpayer may appeal to this Court. I find there is no valid appeal
with respect to CPP before this Court. Further, subsection 26.1(4) of the Canada
Pension Plan states:
26.1(4) Unless a ruling has been requested with
respect to a person in pensionable employment,
(a) an amount deducted
from the remuneration of the person or paid by an employer as a contribution
for the person is deemed to have been deducted or paid in accordance with this Act;
or
(b) an amount that has
not been so deducted or paid is deemed not to have been required to be deducted
or paid in accordance with this Act.
[7]
With respect to the income
tax withholdings, I find Mr. Sirivar is not appealing the assessment of tax in
connection with the self-funded leave plan, but is disputing how much has been
collected and remitted. This does not go to the assessment of tax, which is the
subject over which this Court has jurisdiction: the Court does not have
jurisdiction regarding the collection of tax. Indeed, it is not clear whether
Mr. Sirivar’s concern lies as much with Canada Revenue Agency as it does with
Alterna Savings, for, as he asked in his additional written representations:
c) What amounts were actually deducted at
source and withheld by the Self‑Funded Leave Plan administrator as
Taxes…?
d) Were the amounts deducted at source and
withheld by the Self-Funded Leave Plan administrator remitted to the
respondent?
e) If not, who has the legal right and
obligation to recover these amounts from the Self-Funded Leave Plan administrator,
given that, they were so deducted and withheld “IN-TRUST FOR HER MAJESTY, THE
QUEEN, IN RIGHT OF CANADA”?
[8]
These are not questions
that go to the correctness of Mr. Sirivar’s tax assessment. They go to the
payment of such taxes, and, as I have indicated, that is a subject not within
the Court’s statutory mandate. Mr. Sirivar may have recourse to other Courts,
but the relief he seeks (“an Order directing the Respondent to acknowledge and
recognize the full amount of taxes paid in the amount of $4,477.01”) is not an
Order this Court can provide.
[9]
In summary, the appeal
is allowed and referred back to the Minister for reconsideration and
reassessment on the basis that Mr. Sirivar is entitled to deduct child support
amounts of $4,800 in 2003 and $4,800 in 2004, with interest and penalties to be
readjusted accordingly.
Signed at Ottawa, Canada, this 13th day of February 2009.
“Campbell J. Miller”
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