Tabios v. Human Resources, 2005 TCC 465

Docket: 2004-4738(OAS)

BETWEEN:

ROLANDO C. TABIOS,

Appellant,

And

THE MINISTER OF HUMAN RESOURCES DEVELOPMENT CANADA,

Respondent.

____________________________________________________________________

Appeal heard on common evidence with the appeal of Rufina Tabios (2004-4739(OAS)) on July 21, 2005 at Winnipeg, Manitoba

Before: The Honourable Justice L.M. Little
Appearances:
For the Appellant:	The Appellant himself
Counsel for the Respondent:	Ainslie Schroeder

____________________________________________________________________

JUDGMENT

          The appeal made under subsection 56(1) of the Income Tax Act and sections 11 and 12 of the Old Age Security Act for the 2003 taxation year is dismissed, without costs, and the decision of the Minister is confirmed.

Signed at Vancouver, British Columbia, this 28th day of July 2005.

"L.M. Little"

Little J.

Docket: 2004-4739(OAS)

BETWEEN:

RUFINA TABIOS,

Appellant,

And

THE MINISTER OF HUMAN RESOURCES DEVELOPMENT CANADA,

Respondent.

____________________________________________________________________

Appeal heard on common evidence with the appeal of Rolando C. Tabios (2004-4738(OAS)) on July 21, 2005 at Winnipeg, Manitoba

Before:    The Honourable Justice L.M. Little
Appearances:
Agent for the Appellant:	Rolando C. Tabios
Counsel for the Respondent:	Ainslie Schroeder

____________________________________________________________________

JUDGMENT

          The appeal made under subsection 56(1) of the Income Tax Act and sections 11 and 12 of the Old Age Security Act for the 2003 taxation year is dismissed, without costs, and the decision of the Minister is confirmed.

Signed at Vancouver, British Columbia, this 28th day of July 2005.

"L.M. Little"

Little J.

Citation: 2005TCC465

Date:20050728

Dockets: 2004-4738(OAS) 2004-4739(OAS)

BETWEEN:

ROLANDO C. TABIOS, RUFINA TABIOS,

Appellants,

And

THE MINISTER OF HUMAN RESOURCES DEVELOPMENT CANADA,

Respondent.

REASONS FOR JUDGMENT

Little, J.

A.       FACTS:

[1]      The Appellants were born in the Philippines.

[2]      At all material times the Appellant, Rolando, has been married to the Appellant, Rufina.

[3]      The Appellants became landed immigrants in Canada on April 21, 1987. The Appellants became Canadian citizens on August 31, 1993.

[4]      The Appellant, Rolando, has been receiving a partial Old Age Security Pension (11/40) and a Guaranteed Income Supplement (GIS) since September 1998.

[5]      The Appellant, Rufina, has been receiving a partial Old Age Security Pension (12/40) and a GIS since December 1999.

[6]      The Appellants received the following income in the 2003 taxation year:

                                                                   2003 Taxation Year

           Rolando                                                           $14,705.00

           Rufina                                                              $10,315.00

                                                                                 $25,020.00

[7]      Included in the Appellants' income for the 2003 taxation year were amounts that they withdrew from their Registered Retirement Income Fund (RRIF). The Appellants withdrew the following amounts from their RRIF:

                                                          Amounts withdrawn from RRIF

           Rolando                                                           $10,371.00

           Rufina                                                              $10,000.00

B.       ISSUE:

[8]      The issue is whether the Minister of National Revenue (the "Minister") correctly determined pursuant to the Old Age Security Act (the "OAS") that the income of the Appellant, Rolando in 2003 was $14,705.00 and that the income of the Appellant, Rufina in 2003 was $10,315.00 and that the joint income for the Appellants in 2003 was $25,020.00.

C.       CONCLUSION:

[9]      Subsection 56(1) of the Income Tax Act (the "Act") provides that a taxpayer shall include in computing income for a taxation year any amount in respect of a RRIF that is required by section 146.3 of the Act to be included in computing income.

[10]     Section 146.3 of the Act provides that a withdrawal by a taxpayer from a RRIF must be included in computing income.

[11]     I have concluded that the Minister correctly determined that the amounts withdrawn by the Appellants from their RRIF were properly included in income.

[12]     The appeals are dismissed, without cost.

[13]     Rolando Tabios argued on behalf of his wife and himself that they are only entitled to a partial benefit under the OAS even though they have lived in Canada since 1987. The Appellant, Rolando, maintained that the formula that is used by the Minister in determining benefits under the OAS should take into account the length of time that a person has lived in Canada and not simply the number of years that a person has lived in Canada at the time that they commenced to receive benefits under the OAS.

[14]     I do not have the authority to amend the relevant legislation. My function as a Judge of the Tax Court is simply to interpret the legislation. If the Appellants wish to have the formula used to determine benefits under the OAS amended they should discuss this question with their Member of Parliament

Signed at Vancouver, British Columbia, this 28th day of July 2005.

"L.M. Little"

Little J.

CITATION:

2005TCC465

COURT FILES NO.:

2004-4738(OAS) 2004-4739(OAS)

STYLE OF CAUSE:

Rolando C. Tabios, Rufina Tabios and The Minister of Human Resources Development Canada

PLACE OF HEARING:

Vancouver, British Columbia

DATE OF HEARING:

July 21, 2005

REASONS FOR JUDGMENT BY:

The Honourable Justice L.M. Little

DATE OF JUDGMENT:

July 28, 2005

APPEARANCES:

Agent for the Appellants:

Rolando C. Tabios

Counsel for the Respondent:

Ainslie Schroeder

COUNSEL OF RECORD:

For the Appellant:

Name:

Firm:

For the Respondent:

John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Canada