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Citation: 2003TCC748
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Date: 20031202
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Docket: 2002-3556(IT)I
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BETWEEN:
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RENÉ RIVARD,
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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
Bédard J.
[1] This
is an appeal under the Informal Procedure from an assessment by which the
Minister of National Revenue (the Minister) disallowed in the computation of
the Appellant’s income, a deduction of a $21,161.59 as a support amount or
other allowance payable on a periodic basis for the 2001 taxation year.
[2] The
Appellant married Johanne Dussault on December 6, 1975.
[3] The
Appellant’s and Ms. Dussault’s union produced two daughters:
i) Mélysa, born August 25, 1978;
ii) Andrée-Anne, born January 6, 1984.
[4] The
Appellant and Ms. Dussault stopped living together around January 26, 2000.
[5] The
Appellant’s claim for support payments for the 2001 taxation year can be broken
down as follows:
i) arrears (2000 taxation year) $5,171.59
ii) support payments (year at issue) $15,990.00
$21,161.59
[6] In
filing her income tax return for the 2001 taxation year, Ms. Dussault did not
include any amount of income from support payments.
[7] In
his April 26, 2000 judgment, submitted as Exhibit A-1, the Honourable Justice
Yvan St-Julian, J.S.C., drew the following conclusions, among others:
i) Ms. Dussault would have custody
of Andrée-Anne,
ii) the Appellant would continue to
pay Ms. Dussault, for her benefit and for Andrée-Anne’s, three hundred
dollars per week.
[8] The
Appellant also submitted as Exhibit A-2 the divorce judgment from the Superior
Court of Quebec dated January 18, 2002, and rendered by the Honourable Justice
Suzanne Hardy-Lemieux, J.S.C., in which the judge confirmed made
enforceable a corollary relief agreement made between the parties on January
15, 2002. Paragraphs 8, 10 and 11 of the agreement contain the following
provisions:
[TRANSLATION]
8) the (Appellant) will pay to (Ms.
Dussault), as an annual support amount, for herself, the amount of $16,000
payable pursuant to the provisions of the Act to facilitate the payment of
support, beginning January 15, 2002,
10) the (Appellant) acknowledges
owing (Ms. Dussault) for herself, for her own support, certain arrears
deductible for the Appellant and taxable for Ms. Dussault that the parties have
agreed amounts to $3,000, payable no later than 10 days following the signature
of these presents,
11) the (Appellant) will pay to (Ms.
Dussault), as an annual support amount for Andrée-Anne, of whom she will have
custody, the amount of $8,600 payable pursuant to the provisions of the Act
to facilitate support payments, starting January 15, 2002.
[9] Relying
on subsection 56.1(4) and paragraph 60(b) of the Income Tax Act
(the Act), the Minster maintains that the amount of $21,161.59 paid by the
Appellant to Ms. Dussault during the 2001 taxation year was not deductible as a
support amount or other allowance payable on a periodic basis as it arose from
a judgment handed down after April 30, 1997, and the aforementioned amount is
considered a child support amount pursuant to subsection 56.1(4) and paragraph
60(b) of the Act.
Analysis
[10] The definition of "child support amount" in subsection
56.1(4) of the Act is as follows:
"child support amount"
means any support amount that is not identified in the agreement or order under
which it is receivable as being solely for the support of a recipient who is a
spouse or common-law partner or former spouse or common-law partner of the
payer or who is a parent of a child of whom the payer is a legal parent.
[11] Paragraph 60(b) of the Act reads as follows:
Support
(b) the total
of all amounts each of which is an amount determined by the formula
A - (B + C)
where
A is the total of all
amounts each of which is a support amount paid after 1996 and before the end of
the year by the taxpayer to a particular person, where the taxpayer and the
particular person were living separate and apart at the time the amount was
paid,
B is the total of all
amounts each of which is a child support amount that became payable by the
taxpayer to the particular person under an agreement or order on or after its
commencement day and before the end of the year in respect of a period that
began on or after its commencement day, and
C is the total of all
amounts each of which is a support amount paid by the taxpayer to the
particular person after 1996 and deductible in computing the taxpayer’s income
for a preceding taxation year;
[12] I am of the opinion that the Appellant’s support claim in the amount
of $21,161.59 for the 2001 taxation year arose from the judgment dated April
26, 2000, and that the weekly sum of $300 payable to Ms. Dussault pursuant to
this judgment is included in the definition of child support amount because, as
per the court order, it is not intended as being solely for the support of Ms.
Dussault. The order does not provide for any division of the weekly payment of
$300 between Ms. Dussault and her daughter, Andrée‑Anne.
[13] Consequently, the provisions of paragraph 60(b) of the Act actually
prevent the Appellant from deducting the amount of $21,161.59 in the
computation of his income for the 2001 taxation year.
[14] The Appellant alleges, as a last resort, that the amount of $3,000
paid by the Appellant as per the terms of the agreement on corollary relief
dated January 15, 2002, and confirmed by the Superior Court of Quebec January
18, 2002, is deductible from his income for the 2001 taxation year. Paragraph
10 of the agreement establishes that the Appellant acknowledges owing to Ms.
Dussault for herself, for her own support, certain arrears that were deductible
for the Appellant and taxable for Ms. Dussault that the parties had agreed
amounted to $3,000, payable no later than 10 days following the signing of the
aforementioned agreement.
[15] Although it is not clear that these arrears date back to 2001, a
taxpayer cannot claim a deduction pursuant to paragraph 60(b) of the Act
for a disbursement he did not pay during that taxation year. According to paragraph
10 of the January 15, 2002 agreement, the Appellant still owes arrears of
$3,000 to Ms. Dussault, which proves they were not paid in 2001.
[16] For these reasons, the appeal is dismissed.
Signed at Ottawa, Canada, this 2nd day of December
2003.
Bédard
J.
Translation certified
true
on this 31st day of
March 2009.
Bella Lewkowicz, Translator
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