Citation: 2008TCC602
Date: 20081105
Docket: 2008-647(IT)I
BETWEEN:
TAMMIE E. DAIGNEAULT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
(Delivered orally from the Bench on October 30, 2008)
Woods J.
[1] Let the record
show that these are reasons delivered orally in the matter of Tammie Daigneault
and Her Majesty the Queen.
[2] Mrs. Daigneault appeals in respect of a reassessment
made under the Income Tax Act for the 2005 taxation year.
[3] What is under dispute is the inclusion by the Minister
in Mrs. Daigneault’s income of an amount of $5,600 which the Minister
determined was received by Mrs. Daigneault in 2005 as child support payments.
[4] The notice of appeal raises two issues.
[5] The first is whether an understanding between Mrs.
Daigneault and her former husband that the payments would not be taken into
account for tax purposes, either as an inclusion or deduction, should be
respected for purposes of determining the income tax liability.
[6] It is not necessary for me to go into any of the
testimony on this point because spouses cannot agree to alter a tax liability
which is imposed by Parliament.
[7] Whether child support payments are taxable or not
depends on the specific provisions of the Income Tax Act. The Act
does contain procedures for former spouses to make an election for a different
tax treatment, but these election procedures were not followed in this case. In
these circumstances, any child support payments received by Mrs. Daigneault in
2005 must be included in her income.
[8] The second issue concerns how much was actually
received in 2005. Mrs. Daigneault’s former husband claims to have paid to
her $5,600 but Mrs. Daigneault submitted that she thinks he paid only
$4,400.
[9] Both spouses were assessed on the basis of the former
husband’s position, namely that what was received was $5,600. The Canada
Revenue Agency based the assessments on a letter written by the former husband
and signed by Mrs. Daigneault in which she acknowledges that she received
cheques totaling $5,600.
[10] Mrs. Daigneault suggests that this document is not the
end of the story because she signed it without verifying its accuracy. She
testified that her former husband came to her place of work to have the
document signed and she felt pressured to sign the document on the spot so as
to avoid a confrontation in the workplace.
[11] The Crown introduced the former husband as a witness
to try to establish that Mrs. Daigneault’s explanation should not be accepted.
[12] It is not necessary for me to go into the details of
the signing of the letter. I accept Mrs. Daigneault’s evidence that she signed
the letter without verifying its accuracy because she wished to avoid a
confrontation in her workplace.
[13] Individuals generally have good reasons to avoid any
personal meetings at their workplace, and this is especially true with respect
to meeting with a former spouse.
[14] It is necessary, then, to look at all the evidence
which was introduced to try to determine how much Mrs. Daigneault likely
received.
[15] Mrs. Daigneault testified that her former husband did
not have a general history of defaulting on support obligations but she stated
that she thought that payments were not made for October, November and December
in 2005 because her son was not at home during that period.
[16] I will consider the October, November and December
situation separately.
[17] First November. It appears there is no disagreement
about the November payment. The former husband did not claim to make a payment
during that month.
That leaves October and
December.
[18] Mrs. Daigneault introduced in support of her position
a copy of her bank deposits and also a copy of her boyfriend’s bank account
because she said that she also received assistance from him.
[19] I have reviewed these statements, and I have also
reviewed the former husband’s summary of cheques in his letter.
[20] Unfortunately for Mrs. Daigneault, my conclusion from
the evidence is that her former husband likely did pay her for October and
December.
[21] In October, Mrs. Daigneault’s bank account shows a
deposit of $468.99 on October 17. This is generally consistent with the former
husband’s claim that a cheque in the amount of $400 was posted by his bank on
October 17. Accordingly I conclude that Mrs. Daigneault received $400 from her
former husband in October.
[22] As for December, the former husband claims that a
cheque in the amount of $400 was posted to his bank on December 5. Mrs.
Daigneault’s bank account shows a deposit on November 30 of $700. This deposit
likely takes into account a payment from the boyfriend of $300 and a payment from
the former husband of $400. The dates of the transactions are off by a few days
but I think there could be explanations for this.
[23] I would conclude from all the evidence that it is more
likely than not that the former husband did pay $5,600 to Mrs. Daigneault in
the 2005 taxation year and the appeal will be dismissed on this basis.
[24] Before concluding, I wish to comment that although I
was not able to give Mrs. Daigneault the relief that she is seeking, I truly do
compliment her for bringing this appeal to the Court and I wish her every
success in the future.
Signed at Toronto, Ontario this 5th
day of November 2008.
“J. Woods”
CITATION: 2008TCC602
COURT FILE NO.: 2008-647(IT)I
STYLE OF CAUSE: TAMMIE E. DAIGNEAULT AND HER MAJESTY THE QUEEN
PLACE OF HEARING: London, Ontario
DATE OF HEARING: October 22, 2008
REASONS FOR JUDGMENT BY: The
Honourable Justice J. Woods
DATE OF JUDGMENT: November 5, 2008
APPEARANCES:
|
For the
Appellant:
|
The Appellant herself
|
|
Counsel for the
Respondent:
|
Suzanie Chua
|
COUNSEL OF RECORD:
For the Appellant:
Name: n/a
Firm:
For the
Respondent: John H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa,
Canada
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