Docket: 2008-685(IT)I
BETWEEN:
MARIE-JOSÉE MILLIARD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
____________________________________________________________________
Appeal heard on January 13, 2009, at Québec,
Quebec
Before: The Honourable
Justice Paul Bédard
Appearances:
|
Counsel for the Appellant:
|
François Drouin
|
|
Counsel for the Respondent:
|
Christina Ham
|
____________________________________________________________________
JUDGMENT
The appeal from the reassessment made under
the Income Tax Act for the 2004 taxation year is dismissed in accordance
with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 23rd day of February 2009.
"Paul Bédard"
Translation certified true
On this 6th day of April 2009
Monica Chamberlain, Reviser
Citation: 2009 TCC 41
Date: 20090223
Docket: 2008-685(IT)I
BETWEEN:
MARIE-JOSÉE MILLIARD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Bédard J.
[1]
This is an appeal from
a notice of child tax benefit (CTB) redetermination for the 2004 base year.
Background
[2]
The Appellant and Yves
Lévesque were common-law partners for several years. They had two children
during that time: Jennifer Lévesque and Véronique Lévesque.
[3]
The Appellant separated
from her partner in February 2006 and left the family residence on
February 12, 2006. Following the separation, the father had custody
of the couple's children.
[4]
The Appellant had been
receiving CTB payments since October 2000, and continued to receive them
even after leaving the family residence located in Québec. In this regard, the
evidence disclosed that the benefit payments were directly deposited by the
Minister of National Revenue (the Minister) into a bank account (the joint
account) that she held jointly with Mr. Lévesque. The evidence also
disclosed that the payments had been deposited into the joint account further
to a direct deposit request that the Appellant filed with the Minister.
[5]
In August 2006, Mr. Lévesque
filed a CTB claim which stated that his two children Jennifer and Véronique had
been residing with him since February 2006. Since the Appellant never
sent the Minister a notice, as required by subsection 122.62(4) of the Income Tax Act
(the Act), that she had ceased to be an eligible individual, the Minister,
without conducting an audit, and in accordance with regular procedure, made the
adjustment on August 18, 2006, determining that the Appellant was not
the eligible individual in respect of the children Jennifer and Véronique for
the period from March 2006 to June 2006 exclusively for the 2004 base
year.
[6]
The issue in the
instant matter is whether the Minister correctly revised the Child Tax Benefit
amount when he determined that the overpayments amounted to $1,772.11 for the
period from March 2006 to June 2006, inclusive, for the 2004 base year.
[7]
The Appellant testified
that, as of February 12, 2006, she no longer withdrew any money or
otherwise benefitted from the joint account. She explained that she was unable
to withdraw funds from the joint account because she had lost her ATM card,
which had enabled her to withdraw cash amounts from the joint account. She added
that she never made any attempts to obtain a new ATM card. It should be noted
that the Appellant's testimony was silent with respect to the cheques that she
might have been able to cash using the joint account, or the pre‑authorized
withdrawals that she might have been able to make from that account. It should
also be noted that the Appellant provided no documentary evidence that she
received no benefit from the joint account starting in February 2006.
The Appellant's position
[8]
In his oral argument,
counsel for the Appellant essentially restated the arguments made in the Notice
of Appeal, which read as follows:
[translation]
24. This decision of
December 3, 2007, is unfounded in fact and in law.
25. The Canada Revenue Agency never ruled on the administrative error described
above.
26. The Appellant was no longer the eligible
individual as defined by section 122.6 of the Income Tax Act for
the period in respect of which the claim was made.
27. Yves Lévesque was the eligible individual.
28. In fact, he asked that the tax benefit be
paid to him personally.
29. Once this change was made, the Canada
Revenue Agency had a duty to cancel the child benefit payments to the
Appellant.
30. Yves Lévesque illegally received double
child tax benefits.
31. The Canada Revenue Agency is unlawfully claiming child tax benefit overpayments
from the Appellant following its own administrative error.
32. Only Yves Lévesque is responsible for
paying back the overpaid tax benefits.
33. The Appellant asks that this Honourable
Court cancel the Canada Revenue Agency's claim from her.
34. The Appellant asks that this Honourable
Court order the Canada Revenue Agency to pay back all amounts collected from
her in partial payment of that claim.
35. All of which is respectfully submitted.
Analysis and determination
[9]
Essentially, the
Appellant is arguing that the CTB was paid to Mr. Lévesque, not to her, because
all payments as of February 12, 2006 were deposited into the joint account
to which she no longer had access from that date onward, and thus, he was the
only person who benefitted from the payments.
[10]
In the case at bar, the
Appellant does not dispute the fact that she was not the eligible individual
within the meaning of section 122.6 of the Act, nor does she dispute the
fact that she did not send the Minister a notice that she had ceased to be
eligible, which was required by subsection 122.62(4) of the Act. I should
also note that the evidence disclosed that all the benefits were paid into the
joint account further to a direct deposit request that the Appellant sent to
the Minister. The Appellant must understand that a direct deposit request
is a kind of direction to pay funds, and that the benefits deposited
directly into the joint account by the Minister were payments to the Appellant.
In my opinion, Mr. Lévesque's supposed appropriation of the CTB money does
not cause the money thereby deposited to be characterized as payments to
Mr. Lévesque. This means that the Appellant received benefit payments when
she was not entitled to them, because she was not the eligible individual
within the meaning of section 122.6 of the Act. Thus, the Appellant
unjustly enriched herself. Consequently, she must reimburse the Minister for
the amounts that she received without entitlement starting in
February 2006.
[11]
For these reasons, the
appeal is dismissed.
Signed at Ottawa, Canada, this
23rd day of February 2009.
"Paul Bédard"
Translation certified true
On this 6th day of April 2009
Monica Chamberlain, Reviser
Email this Content