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Citation: 2006TCC77
Date: 20060221
Docket: 2005-935(IT)I
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BETWEEN:
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BOB JELINEK,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
(delivered orally from the Bench at
Vancouver, British Columbia, on December 16, 2005)
[1] This appeal pursuant to the Informal Procedure was heard at Vancouver, British Columbia, on December 15, 2005. The Appellant testified and called his former wife Betty Lorraine Coates.
[2] The particulars in dispute are set out in paragraphs 3 to 10 inclusive of the Reply to the Notice of Appeal. They read:
3. By Notice of Reassessment dated October 19, 2004, the Minister of National Revenue (the "Minister") reassessed the Appellant's 2003 taxation year and disallowed the wholly dependent non-refundable tax credit (the "Tax Credit") on account of Kristy Jelinek.
4. The Appellant objected to the 2003 taxation year reassessment by filing with the Minister a Notice of Objection dated October 31, 2004.
5. The Minister confirmed the reassessment for the 2003 taxation year and so notified the Appellant by Notification dated January 19, 2005.
6. In reassessing tax for the 2003 taxation year and in confirming that assessment, the Minister assumed the following facts:
a) the Appellant and Betty Lorraine Jelinek, now Coates, (the "Former Spouse") are the parents of Kristy Michelle Jelinek, born December 14, 1985, (the "Daughter");
b) the Appellant and his Former Spouse lived separate and apart throughout 2003 because of the breakdown of their marriage;
c) the Supreme Court of British Columbia, by Order dated January 7, 1991 (the "Order") ordered the Appellant to pay to the Former Spouse $1000 per month on account of support for the Daughter commencing December 1, 1990;
d) the January 7, 1991 Order has not been varied with respect to the support for the Daughter;
e) the Order further granted the Appellant reasonable access to the Daughter;
f) in 2003, the Appellant did not maintain a self-contained domestic establishment in which he resided in and supported the Daughter therein; and
g) the Former Spouse was a supporting person and claimed the Tax Credit for the Daughter in the 2003 year.
B. ISSUE TO BE DECIDED
7. The issue whether the Appellant is eligible to claim the Tax Credit on account of the Daughter for the 2003 taxation year.
C. STATUTORY PROVISIONS RELED ON
8. He relies on paragraph 118(1)(b) and subsections 56.1(4), 118(4), 118(5) of the Income Tax Act, R.S.C. 1985 (5th Supp.) c. 1 (the "Act") as amended.
D. GROUNDS RELIED ON AND RELIEF SOUGHT
9. He submits that the Appellant has been correctly reassessed to disallow the Tax Credit as the Appellant was required to pay a support amount as defined in subsection 56.1(4) of the Act, for the Daughter to his Former Spouse during the 2003 taxation year and therefore is precluded under subsection 118(5) of the Act from claiming the Tax Credit.
10. In the event that the Appellant was not required to pay a support amount for the Daughter to his Former Spouse in 2003, he submits that the Appellant is not entitled to the Tax Credit because the Former Spouse supported the Daughter in a self-contained domestic establishment and claimed the Tax Credit in the 2003 taxation year. Under subsection 118(4), only one person may claim the Tax Credit for the Daughter in the year.
[3] None of the assumptions were refuted by the evidence.
[4] In particular respecting assumption 6(d), the Appellant testified that an oral order was given in the period 2000-2002 which was not issued which granted him the right to not pay support if Kristy lived with him. Ms. Coates testified that it was an order for joint custody with support to be paid to her if Kristy lived with her.
[5] However that Order was not issued and therefore the Court finds that the only Supreme Court of British Columbia order in this matter is the Order of January 7, 1991.
[6] Ms. Coates claimed the wholly dependent non-refundable tax credit on account of Kristy in 2003 and received it.
[7] Ms. Coates is believed when she testified that Kristy lived at Ms. Coates', the Appellant's and Kristy's boyfriend's home in 2003. Moreover Ms. Coates registered Kristy at school from her residence in 2003.
[8] On that basis, the Court accepts assumption 6(d) and finds that Kristy did not in fact or law reside with the Appellant in a self-contained domestic establishment in 2003.
[9] Therefore the appeal is dismissed.
Signed at Kelowna, British Columbia, this 21st day of February 2006.
Beaubier, J.
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