Osei v. R., [1999] 2 CTC 2135

Brulé 7.C.J.:

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

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

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.

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

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

Analysis

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.

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.

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.

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.

Appeals allowed.