Date: 20050928
Docket: A-147-04
Citation: 2005 FCA 315
CORAM: NADON J.A.
SEXTON J.A.
MALONE J.A.
BETWEEN:
KEITH ANSTEAD
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Regina, Saskatchewan, on September 28, 2005.
Judgment delivered from the Bench at Regina, Saskatchewan, on September 28, 2005.
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
Date: 20050928
Docket: A-147-04
Citation: 2005 FCA 315
CORAM: NADON J.A.
SEXTON J.A.
MALONE J.A.
BETWEEN:
KEITH ANSTEAD
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Regina, Saskatchewan, on September 28, 2005)
SEXTON J.A.
[1] The appellant and his wife were divorced and judgment granted on April 30, 1997. At that time, the Court order required the appellant to pay spousal support commencing on May 1, 1997 for a period of 24 months. The payments were to be included in the wife's income and deductable from the appellant's income.
[2] By later agreement the appellant agreed to continue the spousal payments for a further 15 months. However, an order requiring such payments was not obtained until June 2002.
[3] The respondent denied the appellant's claim for deductions of the spousal payments for the extended period of 15 months.
[4] The Tax Court Judge held that such payments were not deductable because they were not payable under a Court order or written agreement.
[5] The Tax Court Judge held that subsection 60.1(3) of the Income Tax Act only permitted deduction of payments if they were made in the year of or the year preceding the June 2002 order, which was not the case here.
[6] Before us the appellant argued:
a. that the respondent had waived its right to rely on section 60 of the Income Tax Act;
b. that the respondent had double taxed the spousal support;
c. that the Income Tax Act deems the 2002 order to have had effect in 1997.
[7] The appellant argued that because the respondent asked for documentation that would support the appellant's claim for a deduction, the respondent had waived the requirements of subsection 60.1(3). We do not see that such request amounts to a waiver. In any event, the respondent cannot waive the right to enforce the Income Tax Act (Ludmer v. Canada, [1994] FCJ No. 2007).
[8] Secondly, we do not agree that the principle prohibiting double taxation contained in subsection 248(28) is applicable to the facts in the present case.
[9] We agree with the Tax Court Judge that the subsection cannot be used to allow a taxpayer to take advantage of a deduction for which he does not otherwise qualify. At best, it might be used by the wife to claim that the payments should be removed from her taxable income.
[10] In any event, it appears to us that the words "such income" used in subsection 248(28) refer to the "taxpayer income" previously identified in that paragraph. A particular amount cannot be taxed in a taxpayer's hands if it has already been taxed in that taxpayer's hands.
[11] As to the third argument, the appellant admits it was not raised before the Tax Court Judge. In any event, we do not agree that subsection 60.1(3) can be construed as argued by the appellant. That subsection clearly means that with reference to the 2002 order, deductions can only be claimed in the year or the preceding taxation year from the date of the 2002 order.
[12] We can find no error of law or palpable and overriding error in the factual findings of the Tax Court Judge.
[13] The appeal will therefore be dismissed with costs.
"J. Edgar Sexton"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-147-04
STYLE OF CAUSE: KEITH ANSTEAD v. HER MAJESTY THE QUEEN
PLACE OF HEARING: REGINA, SASKATCHEWAN
DATE OF HEARING: SEPTEMBER 28, 2005
REASONS FOR JUDGMENT
OF THE COURT: NADON J.A.
SEXTON J.A.
MALONE J.A.
DELIVERED FROM THE
BENCH BY: SEXTON, J.A.
APPEARANCES:
Mr. David R. Barth FOR THE APPELLANT
Mr. Rob Gosman FOR THE RESPONDENT
SOLICITORS OF RECORD:
McKay & Associates FOR THE APPELLANT
Regina, SK
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Winnipeg, MB
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