Malinowski v. The Queen, 2005 TCC 68 (Informal Procedure)

REASONS FOR JUDGMENT

(delivered orally from the Bench at Vancouver, British Columbia,

on November 18, 2004)

[1]      This appeal pursuant to the Informal Procedure was heard at Vancouver, British Columbia, on November 18, 2004. The Appellant testified. The Respondent called Domenica Cutaia, an employee of Insurance Corporation of British Columbia ("ICBC") to establish the Appellant's change of address with ICBC in 2002.

[2]      Paragraphs 4 to 9 inclusive of the Reply to the Notice of Appeal outline the matters in dispute. They read:

4.          In computing non-refundable tax credits for the 2002 taxation year, the Appellant claimed the maximum amount of $6,482.00 for a wholly dependent person (the "Amount").

5.          By assessment dated December 1, 2003, the Minister of National Revenue (the "Minister") disallowed the Amount for the Appellant's 2002 taxation year.

6.          The Appellant objected to the assessment by serving on the Minister a Notice of Objection on January 13, 2004.

7.          The Minister confirmed the assessment and issued a Notification of Confirmation on April 22, 2004.

8.          In assessing tax for the 2002 taxation year and in confirming that assessment, the Minister assumed the same facts, as follows:

a)          at all material times, the Appellant was married to his wife, Dorota Malinowski ("Dorota");

b)          the Appellant and Dorota have one son, Michael, born on June 13, 1994;

c)          at no material time was the Appellant separated or divorced from Dorota; and

d)          at no material time did the Appellant maintain a self-contained residence separate from Dorota, in which he supported Michael.

B.         ISSUES TO BE DECIDED

9.          The issue is whether the Appellant is entitled to claim the Amount as a non-refundable tax credit for the 2002 taxation year.

[3]      None of the assumptions in paragraph 8 were refuted.

[4]      Various statements by the Appellant respecting his living arrangements in 2002 were put in evidence. However, the following was established:

1.        Canada Revenue Agency ("CRA") asked for proof that he was living in a self-contained domestic establishment separate from his wife by means of rent cheques, lease, hydro or telephone bills. No such proof was provided by the Appellant to CRA or to the Court.

2.        The Appellant admitted that he may have made similar claims to this in other years.

3.        The Appellant testified that his wife asked or told him to move out at the end of 2001 and indicated that his relationship with his wife was at various times chancy or subject to similar outbursts. At best, this would indicate that at times he sojourned outside the matrimonial home. But his wife did not testify.

[5]      As a result, the Appellant did not meet the onus upon him to establish that in 2002 he maintained a self-contained domestic establishment separate from his wife. The Court does not believe his assertions that he did so. In particular, there was no evidence corroborating his statements to that effect even though he had been warned by CRA that such corroboration was necessary.

[6]      For this reason, the appeal is dismissed.

Signed at Calgary, Alberta, this 10^th day of February 2005.

Beaubier, J.