Kempo
J.T.C.C.
(orally):—This
informal
procedure
appeal
concerns
Mr.
de
Vries'
1991
taxation
year
and
is
from
the
respondent,
acting
through
the
Minister
of
National
Revenue,
disallowing
the
deduction
of
$12,000
alimony
or
maintenance
paid
by
him
to
his
spouse
on
the
basis
that
it
was
not
paid
pursuant
to
a
decree,
order
or
judgment
of
a
competent
tribunal
or
pursuant
to
a
written
agreement
as
required
by
paragraph
60(b)
and
subsection
60.1(3)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act").
60.
There
may
be
deducted
in
computing
a
taxpayer's
income
for
a
taxation
year
such
of
the
following
amounts
as
are
applicable:
(b)
Alimony
payments.—
an
amount
paid
by
the
taxpayer
in
the
year,
pursuant
to
a
decree,
order
or
judgment
of
a
competent
tribunal
or
pursuant
to
a
written
agreement,
as
alimony
or
other
allowance
payable
on
a
periodic
basis
for
the
maintenance
of
the
recipient
thereof,
children
of
the
marriage,
or
both
the
recipient
and
children
of
the
marriage,
if
he
was
living
apart
from,
and
was
separated
pursuant
to
a
divorce,
judicial
separation
or
written
separation
agreement
from,
bis
spouse
or
former
spouse
to
whom
he
was
required
to
make
the
payment
at
the
time
the
payment
was
made
and
throughout
the
remainder
of
the
year.
60.1(3)
Prior
payments.
For
the
purposes
of
this
section
and
section
60,
where
a
decree,
order
or
judgment
of
a
competent
tribunal
or
a
written
agreement
made
at
any
time
in
a
taxation
year
provides
that
an
amount
paid
before
that
time
and
in
the
year
or
the
immediately
preceding
taxation
year
is
to
be
considered
as
having
been
paid
and
received
pursuant
thereto,
the
following
rules
apply:
(a)
the
amount
shall
be
deemed
to
have
been
paid
pursuant
thereto;
and
(b)
the
person
who
made
the
payment
shall
be
deemed
to
have
been
separated
pursuant
to
a
divorce,
judicial
separation
or
written
separation
agreement
from
his
spouse
or
former
spouse
at
the
time
the
payment
was
made
and
throughout
the
remainder
of
the
year.
[Emphasis
added.]
The
situation
was
described
in
a
notice
of
appeal
dated
January
3,
1993
thusly:
I
claimed
maintenance
payments
to
my
wife
which
were
disallowed
because
of
a
lack
of
a
separation
agreement.
I
was
not
supplied
with
receipts
of
payments
by
my
wife
on
advice
of
her
lawyer.
An
agreement
was
not
made
because
we
reconciled
in
the
first
quarter
of
1992.
When
we
went
to
get
our
taxes
done,
our
accountant
told
us
a
separation
agreement
was
not
necessary.
Also
when
Revenue
Canada
questioned
the
lack
of
a
separation
agreement,
I
was
not
told
that
we
could
make
one
out
up
to
a
year
after
as
per
Interpretation
Bulletin
IT-118R3
paragraph
11.
As
well
all
payments
made
by
me
to
my
wife
as
maintenance
payments
were
claimed
as
income
by
my
wife
on
her
income
tax.
As
well
when
first
notified
by
Revenue
Canada
of
a
review
of
my
tax
for
1991
no
mention
was
made
of
a
maintenance
agreement,
only
property
tax
credit.
Paragraphs
1
and
5
of
the
respondent's
reply
to
notice
of
appeal
provide:
1.
He
admits
the
facts
stated
in
the
notice
of
appeal,
that:
—
the
maintenance
payments
claimed
were
disallowed
as
they
were
not
made
pursuant
to
a
separation
agreement;
—
the
payments
made
to
his
spouse
as
maintenance
payments,
were
included
in
the
computation
of
the
spouse's
income
for
the
1991
taxation
year;
but
he
otherwise
has
no
knowledge
of
and
does
not
admit
the
facts
in
the
notice
of
appeal.
5.
In
so
reassessing
the
appellant,
the
Minister
made
the
following
assumptions
of
fact:
(a)
the
facts
herein
admitted;
(b)
the
appellant
is
separated
from
his
spouse,
Valdene
de
Vries;
(c)
in
the
computation
of
income
for
the
1991
taxation
year,
the
appellant
deducted
an
amount
of
$12,000
as
alimony
or
maintenance
payments
made
to
his
spouse;
(d)
the
amount
of
$12,000
was
not
paid
pursuant
to
a
decree,
order
or
judgment
of
a
competent
tribunal
or
pursuant
to
a
written
agreement;
(e)
the
appellant
was
not
living
apart
from,
and
was
not
separated
pursuant
to
a
divorce,
judicial
separation
or
written
separation
agreement,
from
his
spouse.
Mr.
de
Vries
testified
on
his
own
behalf.
The
payment
amounts
made
were
not
in
dispute.
The
central
issue
here
is
whether
Mr.
de
Vries’
situation
has
met
the
statutory
requirement
of
a
written
agreement.
Unfortunately
it
has
not.
If
Parliament
had
intended
to
permit
deductions
to
be
made
on
the
basis
of
oral
agreements,
or
implied
agreements,
or
in
respect
of
voluntary
payments,
it
would
have
said
so.
Having
employed
the
words
“written
agreement"
other
less
informal
arrangements
were
clearly
intended
to
be
excluded;
see
Hodson
v.
The
Queen,
[1987]
1
C.T.C.
219,
87
D.T.C.
5113
(F.C.T.D.)
at
page
220
(D.T.C.
5114).
This
conclusion
has
been
established
and
reestablished
by
a
long
line
of
case
authority,
including
Knapp
v.
M.N.R.,
[1985]
2
C.T.C.
2046,
85
D.T.C.
424
(T.C.C.);
Andrychuk
v.
M.N.R.,
[1986]
2
C.T.C.
2214,
86
D.T.C.
1667
(T.C.C.);
and
more
recently
in
MacLachlan
v.
The
Queen,
[1992]
1
C.T.C.
2089,
92
D.T.C.
1024
(T.C.C.).
In
Burgess
v.
The
Queen,
[1991]
1
C.T.C.
163,
91
D.T.C.
5076
(F.C.T.D.),
at
page
169
(D.T.C.
5081),
Reed
J.
made
the
following
comments
which
are
transposable
to
Mr.
de
Vries’
situation
except
that
the
words
"court
order"
therein
should
be
substituted
by
the
words
"separation
agreement":
The
result
in
this
case
is
an
unfortunate
one.
The
plaintiff
clearly
lost
a
tax
advantage
he
could
have
had,
through
no
fault
of
his
own.
He
acted
in
a
reasonable
way
in
voluntarily
agreeing
to
provide
maintenance
to
his
wife,
without
the
necessity
of
being
compelled
to
do
so
by
court
order.
The
statutory
provisions
in
question,
however,
do
not
admit
of
an
interpretation
favourable
to
him.
For
the
reasons
given,
this
appeal
fails
and
must
be
dismissed.
I
wish
to
add
that
I
accept
the
truthfulness
of
Mr.
de
Vries’
testimony
that
if
they
had
been
made
aware
a
written
agreement
in
accord
with
subsection
60.1(3)
would
have
been
completed
during
the
early
part
of
1992
following
their
reconciliation
as
she
did
include
the
payments
into
her
income
upon
filing
her
1991
returns.
That
she
had
done
so
is
an
error
on
her
part
because
the
companion
provisions
of
the
Act,
namely
paragraph
56(1)(b)
and
subsection
56.1(3),
are
not
applicable
to
her.
Counsel
for
the
Minister
advised
the
Court
that
a
favourable
response
may
be
expected
by
Mrs.
de
Vries
if
she
formally
applies
for
reconsideration
of
her
1991
return
following
the
failure
of
this
appeal.
Mr.
de
Vries
was
warned
by
counsel
that
this
application
should
be
attended
to
without
delay
as
the
Minister
is
bound
by
the
statutory
three
year
limitation
provision
which
begins
to
run
from
the
date
of
Mrs.
deVries'
assessment
of
tax
for
her
1991
taxation
year.
Appeal
dismissed.
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