Marwaha v. The Queen, 2004 TCC 784 (Informal Procedure)

Appeals heard on August 6, 2004 at Toronto, Ontario

JUDGMENT

          The appeals from the reassessments made under the Income Tax Act for the 1998, 1999 and 2000 taxation years are allowed and the reassessments are referred to the Minister of National Revenue for reconsideration and reassessment in accordance with and to the extent set forth in the attached Reasons for Judgment.

Signed at Ottawa, Canada, this 9th day of December, 2004.

O'Connor, J.

REASONS FOR JUDGMENT

O'Connor, J.

[1]      These appeals for the 1998, 1999 and 2000 taxation years raise many issues. After the hearing, as requested by the Court, counsel for the Respondent filed with the Court written submissions dated October 7, 2004 and the Appellant by letter to the Court dated October 20, 2004 filed submissions. Both submissions related to this appeal of Yash Marwaha, file number 2003-4125(IT)I and to the appeals of Sushma Marwaha, file number 2003-3037(IT)I and to Premwati Marwaha, file number 2003-3613(IT)I. Moreover by letter to the Court dated November 25, 2004, counsel for the Respondent made further submissions related to the issue of nil assessments. I have determined that that issue does not have a bearing on the outcome of these appeals.

[2]      The following is intended to summarize the issues in the appeals of Yash Marwaha and their resolution:

1.        In each of the years 1998, 1999 and 2000 the Appellant claimed Ontario Property Tax Credits in respect of certain rents paid in those years. At first these Credits were allowed but subsequently were disallowed by a reassessment dated February 1, 2002. In my opinion there is absolutely no doubt in the matter. It is clear that this Court has no jurisdiction to adjudicate with respect to Ontario Tax Credits and that any appeal in this regard must be made to the Ontario Superior Court of Justice. This conclusion is not affected by the fact that the claims were at first allowed by the Minister of National Revenue. By a reassessment dated February 1, 2002 they were properly disallowed.

2.        In each of the years 1998, 1999 and 2000 there was a question as to how a support amount of $8,400.00 in each year was to be treated. Counsel for the Respondent has, by the written submissions dated October 7, 2004, agreed with the consent of the Appellant and his wife, that although the Appellant, Yash Marwaha was living in the same residence with his wife, Sushma Marwaha, they were nevertheless to be considered as living separate and apart and pursuant to a written agreement, with the result that the said amount of $8,400.00 in each of said three years is to be included in the income of Yash Marwaha and deducted from the income of Sushma Marwaha as contemplated in Sections 56 and 60 of the Income Tax Act.

3.        As agreed between the Appellant, Yash Marwaha and his wife Sushma Marwaha at the hearing and accepted by counsel for the Respondent in the written submissions dated October 7, 2004, the said Sushma Marwaha and not the Appellant, Yash Marwaha, is entitled to deduct child support expenses of $2,987.50 in the 1998 taxation year, $3,100.00 in the 1999 taxation year and $3,900.00 in the 2000 taxation year, the whole in accordance with Section 63 of the Income Tax Act.

Signed at Ottawa, Canada, this 9th day of December, 2004.

O'Connor, J.