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Citation: 2005TCC221
Date: 20050426
Docket: 2003-3849(IT)I
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BETWEEN:
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MICHAEL JAMES DOCKERY,
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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
Calgary, Alberta, on June 16, 2004)
[1] This appeal pursuant to the
Informal Procedure was heard at Calgary, Alberta on June 16,
2004. The Appellant was the only witness.
[2] Paragraphs 4 to 11 inclusive of
the Reply to the Notice of Appeal set out the matters in issue.
They read:
4. In
computing income for the 2000 and 2001 Taxation Years, the
Appellant claimed in the computation of his non-refundable tax
credits and tax payable, the amounts of $6,140 and $6,293
respectively for a wholly dependant person in respect of his son,
Brendan.
5. By
means of Notices of Reassessment dated December 2, 2002, the
Minister of National Revenue (the "Minister") disallowed the
Appellant's claim for the wholly dependent person in the 2000 and
2001 Taxation Years as the Appellant was required to make support
payments in respect of Brendan in the 2000 and 2001 Taxation Year
and is prohibited by subsection 118(5) of the Income Tax
Act (the "Act") from the claim for the wholly
dependent person amount under paragraph 118(1)(b) of the
Act.
6. The
Appellant filed a Notice of Objection received March 3,
2003.
7. The
Minister confirmed the reassessments by means of a Notification
of Confirmation dated July 16, 2003.
8. By
way of Order dated December 16, 2003 the time period in which to
appeal was extended to the date of the order and the Notice of
Appeal was deemed to be valid.
9. In
reassessing the Appellant for the 2000 and 2001 Taxation Years,
and in confirming those reassessments, the Minister assumed the
same facts as follows:
(a) the
Appellant is divorced from Donna Marlene Dockery (the "Former
Spouse");
(b) the
Appellant and his Former Spouse have two children (the
"Children") as follows:
Name
Date of Birth
Evan Dockery
("Evan")
December 26, 1996
Brendan Dockery ("Brendan") September 10, 1995
(c) pursuant
to Matrimonial Settlement Agreement amendments dated January 31,
2000 (the "Matrimonial Amendments"), the Appellant and the Former
Spouse have shared custody of the Children with approximately 50%
to each the Former Spouse and the Appellant;
(d) the
Matrimonial Amendments requires that the Appellant pay to the
Former Spouse $506.76 on the first day of each month for the
support of the Children;
(e) pursuant
to a Divorce Judgment and Corollary Relief Order dated February
8, 2000 (the "Divorce Judgment"), the Appellant and the Former
Spouse have entered shared custody of the Children, 60% to the
Former Spouse and 40% to the Appellant;
(f) the
Divorce Judgment orders the Appellant to pay the Former Spouse
%505.76 per month for the support of the Children payable on the
1st day of each and every month, commencing February
1, 1999; and
(g) the
Appellant was required to pay support amounts to the Former
Spouse in respect of the Children pursuant to the Divorce
Judgment in the 2000 and 2001 Taxation Years.
B.
ISSUES TO BE DECIDED
10. The issue is
whether the Appellant is entitled to claim the wholly dependent
person amount in respect of Brendan in the computation of his
non-refundable tax credits and tax payable for the 2000 and 2001
Taxation Years.
C.
STATUTORY PROVISIONS, GROUNDS RELIED ON
ANDRELIEF SOUGHT
11. He relies on
sections 56.1 and 60.1, subsections 118(5) and 248(1) and
paragraph 118(1)(b) of the Act as amended for the 2000 and
2001 Taxation Years.
[3] The assumptions except for 9 (e),
were not refuted. Custody was amended by percentage to be 50-50
by an agreement filed as Exhibit A-1, to be "shared custody".
[4] Subsection 118(5) of the Income
Tax Act (the "Act") specifically provides that non
amount may be deducted by a taxpayer under subsection 118(1)
where the individual is required to pay a support amount within
subsection 56.1(4) in respect of the person, namely the
children.
[5] Unfortunately, the Appellant is
required to pay the support amount respecting both children and
therefore he is not entitled to the claims before the Court.
[6] The Appellant is actually
travelling hundreds of kilometres from his workplace to Calgary
to exercise custody of his children. He has not the funds to pay
Revenue Canada its assessment due to his attempt to be a good
father and due to the support requirements pursuant to the Court
Orders.
[7] In these circumstances and because
of his unusually exemplary behaviour, it is recommended that he
be allowed to pay the taxes in question in reasonably
monthly instalments and without any interest charges being
levied.
Signed at Calgary, Alberta, this 26th day of April
2005.
Beaubier, J.
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