Brenda a Robichaud v. Minister of National Revenue, [1981] CTC 2173, 81 DTC 185

Guy Tremblay:—This case was heard in Saint John, New Brunswick on July 29, 1980.

1. The Point at Issue

The point is whether the appellant who got married on December 23, 1977, could claim, in filing her income tax return for the year 1977, an exemption for her spouse, she being a married person who supported her spouse. The latter’s income for 1977 while married was less than $250. The respondent disallowed the exemption.

2. Burden of Proof

The burden is on the appellant to show that the respondent’s assessment is incorrect. This burden of proof results particularly from several judicial decisions, including the judgment delivered by the Supreme Court of Canada in Johnston v MNR, [1948] CTC 195; 3 DTC 1182. In the same judgment, the Court says that the facts on which the respondent based the assessment are also deemed to be correct.

3. Facts Assumed by the Respondent

The respondent based his assessment on the following assumed facts detailed in paragraph 6 of the reply to notice of appeal:

(a) during the 1977 taxation year the appellant was employed as a clerk-typist by Transport Canada and resided in the City of Moncton, in the Province of New

Brunswick;

(b) the appellant married Robert Robichaud on December 23, 1977;

(c) in computing her taxable income for the 1977 taxation year, the appellant claimed a married exemption in the amount of $1,990.

(d) in 1977 the appellant was not a married person who supported her spouse.

4. Facts Proven Before the Board

4.01 The appellant was employed in 1977 by the Department of Transport Canada. She earned a gross income of $8,467.30.

4.02 The appellant married Robert R. Robichaud on December 23, 1977. The latter in 1977 earned about $15,000.

4.03 The appellant and her spouse resided together between December 24 and 31, 1977 at 66 Islington Street, Moncton, New Brunswick.

4.04 In filing his 1977 income tax return, the appellant’s spouse claimed in the computation of his taxable income the maximum deduction allowed under paragraph 109(1 )(a). This deduction was allowed by the Minister.

4.05 The appellant also claimed entitlement to the deduction allowed under paragraph 109(1 )(a) on the basis that she was an individual who during 1977 was a married person who supported her spouse and her spouse’s income was less than $250 for 1977 while married.

4.06 According to the appellant, during the last two months of 1977, she spent considerable sums and incurred large debts in purchasing a home and setting up housekeeping. During November and December 1977 over $200 cash was spent on groceries to stock the new household and other cash monies on houseware. However, it is uncertain whose resources these monies come from.

4.07 The appellant jointly with her spouse borrowed $3,000 of which $2,720.30 (November 30, 1977) was used to pay the downpayment on their residence. The appellant jointly signed the mortgage in the amount of $31,279.70 on the personal residence (Exhibit A-1).

4.08 The appellant paid by cheque $129.95 (November 19, 1977) and $33 (December 22, 1977) to purchase and alter clothing for her spouse. The appellant gave $37.10 (December 14, 1977) to her future spouse for personal use. She paid $27.15 (November 29, 1977) for cablevision and $54 (November 30, 1977) towards insurance on their residence (Exhibit A-1).

4.09 The appellant’s spouse during November and December 1977 paid $500 (November 9, 1977) as a downpayment towards the personal residence, $162 (November 3, 1977) for an oven, $400 (November 28, 1977) towards a range top and fridge having a total price of $929 (December 5, 1977) (Exhibit A-2).

5. Law — Precedent Cases — Analysis

5.01 Law

The main section of the Income Tax Act involved in the present case is paragraph 109(1 )(a) which reads as follows:

For the purpose of computing the taxable income of an individual for a taxation year, there may be deducted from his income for the year such of the following amounts as are applicable:

(a) in the case of an individual who, during the year, was a married person who supported his spouse, an amount equal to the aggregate of

(i) $1,600, and

(ii) $1,400 less the amount, if any, by which the spouse’s income for the year while married exceeds $300;

5.02 Precedent Cases

The appellant referred to the following cases:

1. — Percy Walker Thomson v MNR, [1946] CTC 51; 2 DTC 812;

2. — Roderick W S Johnston v MNR, [1948] CTC 195; 3 DTC 1065;

3. — Frank Wesley McKee v MNR, 25 Tax ABC 8; 60 DTC 443;

4. — No 502 v MNR, 19 Tax ABC 40; 58 DTC 164; and,

5. — William Buzsik v MNR, 12 Tax ABC 285; 55 DTC 165.

5.03 Analysis

5.03.1 The requirement of paragraph 109(1 )(a) that the taxpayer must support his spouse during the year is regarded as meaning “in the course of the year” and not as meaning “throughout the year” so that support for any length of time, however small, will qualify for exemption in the case of persons marrying near the end of the calendar year (P W Thomson v MNR, (supra), and L W F H Cooper v MNR, 29 Tax ABC 294; 62 DTC 339). “Spouse” has been strictly construed to mean a spouse by lawful marriage and not by a “common law” assumption of matrimonial relationship ( No 673 v MNR, 23 Tax ABC 240; 60 DTC 21).

5.03.2 Even if the requirement of paragraph 109(1 )(a) is that the individual must support his spouse, there is no requirement that the taxpayer shall have wholly supported his spouse (William Buzsik v MNR, (supra)', Sammy Lee v MNR, 15 Tax ABC 225; 56 DTC 321 and Gus Constantine v MNR, 8 Tax ABC 303; 53 DTC 213). Moreover, one spouse supports the other spouse despite the fact that the latter had an independent income (F W McKee v MNR (supra).

5.03.3 In the present case with the evidence adduced, both spouses helped mutually. All the cheques were written before December 23, 1977, before the marriage. However, as most of the expenses were for commodities which were used after the marriage (suits, food, cablevision, etc), in the Board’s opinion, those expenses must be considered as expenses made to support the appellant’s spouse after the marriage. There is no requirement that the taxpayer shall have wholly supported his spouse. Although they were married only the seven days in the year 1977, the Board is satisfied with the adduced evidence that the requirements of paragraph 109(1 )(a) are met.

6. Conclusion

The appeal is allowed and the matter is referred back to the respondent for reassessment in accordance with the above reasons for judgment.

Appeal allowed.