Osei v. The Queen, docket 97-3303(IT)I (Informal Procedure)

97-3303(IT)I

BETWEEN:

EVELYN FOSUAH OSEI,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeal heard together with the appeal of Kwabena Osei (97-3737(IT)I) on November 24, 1998 at Toronto, Ontario, by

the Honourable Judge J.A. Brulé

Appearances

Agent for the Appellant:                       R. Frampong

For the Respondent:                            P. Thorning (articling student)

JUDGMENT

                   The appeal from the assessments made under the Income Tax Act for the 1993, 1994 and 1995 taxation years is allowed and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.

Signed at Ottawa, Canada, this 21st day of January 1999.

"J.A. Brulé"

J.T.C.C.

97-3737(IT)I

BETWEEN:

KWABENA OSEI,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeal heard together with the appeal of Evelyn Fosuah Osei (97-3303(IT)I) on November 24, 1998 at Toronto, Ontario, by

the Honourable Judge J.A. Brulé

Appearances

Agent for the Appellant:                       R. Frampong

For the Respondent:                            P. Thorning (articling student)

JUDGMENT

                   The appeal from the assessments made under the Income Tax Act for the 1993 and 1994 taxation years is allowed and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.

Signed at Ottawa, Canada, this 21st day of January 1999.

"J.A. Brulé"

J.T.C.C.

Date: 19990121

Docket: 97-3303(IT)I

BETWEEN:

EVELYN FOSUAH OSEI,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent,

AND

97-3737(IT)I

KWABENA OSEI,

Appellant,

and

HER MAJESTY THE QUEEN

Respondent.

REASONS FOR JUDGMENT

Brulé, J.T.C.C.

[1]      The two appellants appeal their assessments as follows:

-         Evelyn F. Osei (E.O.) for the 1993, 1994 and 1995 taxation years. The case was heard in Toronto, Ontario, on November 24, 1998.

-         Kwabena Osei (K.O.) for the 1993 and 1994 taxation years.

Each is claiming the equivalent to spouse credit for the taxation years involved.

Facts

[2]      During the trial, which was held concurrently for both appellants, a translator of the Akan language was present and assisted the Court when necessary.

[3]      The appellants were apparently married for the years in question, but they claimed to have been living separate and apart. Each maintained a residence and on the advice of a third party they attempted a reconciliation on more than one occasion. Each time this occurred such lasted only about two days. At no time did K.O. pay any money towards the support of his spouse.

[4]      The appellant K.O. also appealed the denial of Ontario Tax Credits. The respondent submitted that the Tax Court did not have jurisdiction to consider this point and so the matter was not pursued.

Issue

[5]      The main issue is whether or not the appellants were living together during the periods in question.

Analysis

[6]      During argument, counsel for the respondent told the Court that if the appellants were not living together during the periods in question then the appeals should be allowed. Naturally, counsel took the opposite view that the appellants were indeed living together during the years in question.

[7]      The Court took the opposite view. The evidence given by both appellants, which was not rebutted, showed that the brief trial reconciliations did not constitute a couple living together. Their eligibility for their respective appeal depended on their living apart which in the Court's opinion they were.

[8]      This coupled with the parole argument by counsel for the respondent is then sufficient for the Court to come to the conclusion that the appellants were living apart during the years in question.

[9]      Accordingly, the appeals are allowed other than the Ontario Tax Credit and the matters are hereby to be returned to the Minister of National Revenue for reconsideration and reassessment.

Signed at Ottawa, Canada, this 21st day of January 1999.

"J.A. Brulé"

J.T.C.C.

COURT FILE NO.:                             97-3303(IT)I

STYLE OF CAUSE:                           Evelyn F. Osei and H.M.Q.

PLACE OF HEARING:                      Toronto, Ontario

DATE OF HEARING:                        November 24, 1998

REASONS FOR JUDGMENT BY:     The Honourable Judge J.A. Brulé

DATE OF JUDGMENT:                     January 21, 1999

APPEARANCES:

For the Appellant:                      R. Frampong (Agent)

For the Respondent:                  P. Thorning (articling student)

COUNSEL OF RECORD:

For the Appellant:

Name:                

Firm:                 

For the Respondent:                  Morris Rosenberg

                                                Deputy Attorney General of Canada

                                                          Ottawa, Canada

COURT FILE NO.:                             97-3737(IT)I

STYLE OF CAUSE:                           Kwabena Osei and H.M.Q.

PLACE OF HEARING:                      Toronto, Ontario

DATE OF HEARING:                        November 24, 1998

REASONS FOR JUDGMENT BY:     The Honourable Judge J.A. Brulé

DATE OF JUDGMENT:                     January 21, 1999

APPEARANCES:

For the Appellant:                      R. Frampong (Agent)

For the Respondent:                  P. Thorning (articling student)

COUNSEL OF RECORD:

For the Appellant:

Name:                

Firm:                 

For the Respondent:                  Morris Rosenberg

                                                Deputy Attorney General of Canada

                                                          Ottawa, Canada