Date: 19971222
Docket: 97-29-IT-I
BETWEEN:
GEORGES MOURANI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Tardif, J.T.C.C.
[1] This is an appeal from a notice of assessment for the 1995
taxation year; for that year, the appellant claimed a dependant
tax credit in respect of his mother, which the respondent
disallowed.
[2] The appellant admitted all of the facts assumed by the
respondent in support of the assessment. Those facts are as
follows:
(a) Eidi Ghnim is the appellant’s mother;
(b) Eidi Ghnim was born in 1917;
(c) Eidi Ghnim is considered totally dependent on the
appellant by the government pursuant to an immigrant sponsorship
contract;
(d) Eidi Ghnim has no mental or physical infirmities;
(e) for the 1995 taxation year, the appellant is not entitled
to the dependant tax credit for his mother, Eidi Ghnim, because
she has no mental or physical infirmities.
[3] When he testified, the appellant stated that the first
part of subparagraph (c) should have been worded as
follows:
(c) Eidi Ghnim is considered totally dependent. . . .
[4] During his testimony, he clearly stated that he was not
challenging the constitutionality of the Income Tax Act
(“the Act”) or relying on the provisions of
the Canadian Charter of Rights and Freedoms.
[5] He basically testified that his 80-year-old
mother could not fit in because of her language, age and
education.
[6] He said that since he signed a 10-year immigrant
sponsorship contract, his mother was totally dependent on him
pursuant to that contract.
[7] He explained that he neither understood nor accepted the
fact that there was no consistency between his contractual
obligations and his tax liabilities.
[8] He also stated that he had made the Department of Finance
aware of his complaint. He testified that he has great respect
for and is deeply grateful to Canadian society, but said that his
appeal was motivated essentially by considerations of fairness
and justice; the monetary consequences were completely minor and
secondary.
[9] The appellant’s case inspires a great deal of
sympathy, especially since his arguments are logical and
reasonable.
[10] The relevant legal provisions read as follows:
SECTION 118: Personal credits.
(1) For the purpose of computing the tax payable under this
Part by an individual for a taxation year, there may be deducted
an amount determined by the formula
A x B
where
A is the appropriate percentage for the year, and
B is the total of,
. . .
(d) Dependants — for each dependant of the
individual for the year who
(i) attained the age of 18 years before the end of the year,
and
(ii) was dependent on the individual because of mental or
physical infirmity. . . . (Emphasis added)
(6) Definition of “dependant”. For the
purposes of paragraphs (1)(d) and (4)(e),
“dependant” of an individual for a taxation year
means a person who at any time in the year is dependent on the
individual for support and is
. . .
(b) the parent, grandparent, brother, sister, uncle,
aunt, niece or nephew, if resident in Canada at any time in the
year, of the individual or of the individual’s spouse.
[11] The applicable legal provisions are very clear and leave
little room for interpretation. To be entitled to the credit, it
is essential that there be a person who is dependent because of
mental or physical infirmity.
[12] To succeed, the appellant had to prove on a balance of
evidence that his mother had a mental or physical infirmity. The
appellant very honestly stated that his mother, who was not at
the hearing, did not have an infirmity. He simply told the Court
that his mother’s advanced age, ignorance of the language
and inability to read or understand the country’s languages
made her totally dependent on him and his immediate family.
[13] This situation gives rise to a great deal of sympathy,
but unfortunately it is not covered by the Act’s
provisions. While the appellant’s efforts are commendable,
they are not being directed at the proper target; this is a
problem that falls under Parliament’s jurisdiction much
more than the jurisdiction of this Court.
[14] Regretfully, I must dismiss the appeal.
Signed at Ottawa, Canada, this 22nd day of December 1997.
“Alain Tardif”
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 27th day of May
1998.
Mario Lagacé, Revisor
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