Medardo a Cardona v. Minister of National Revenue, [1978] CTC 3236, [1978] DTC 1883

Guy Tremblay:—This case was heard at Montreal, Quebec, on November 6, 1978.

1. Point at Issue

The point is whether the appellant is correct in claiming for the 1976 taxation year an additional personal exemption in the amount of $350 for his mother who was hospitalized in the Philippines.

2. Burden of Proof

The burden is on the appellant to show that the respondent’s assessment is incorrect. This burden of proof derives not from one particular section of the Income Tax Act, but from a number of judicial decisions, including the judgment delivered by the Supreme Court of Canada in R W S Johnston v MNR, [1948] CTC 195; 3 DTC 1182.

3. The Facts

Among the facts proven were the following ones, which seem fundamental to the Board.

3.01 The appellant in his testimony said that during the year 1976 he paid $350 for medical expenses for his mother, Mrs Aurea Cardona, who in 1976 was 67 years old and living in the Philippines.

3.02 The appellant’s mother lives with her husband who was 77 years old in 1976. He is a retired teacher who has a superannuation pension. The appellant did not know the amount.

3.03 The appellant is one of six children. Two of them are living in the Philippines, three in Canada and one in the United States. The latter one of his sisters is a doctor and ordinarily she is the one who helped her parents financially. But in this particular case of the medical expenses, the appellant who is a bachelor decided to pay the amount. He added that during the year (at Easter, Christmas, etc) he sent his mother some money as a gift.

3.04 The amount of $350 in International Money Order dated October 28, 1976, was made by the appellant payable to the order of his sister, Mrs Leticia Cardona Acosta. Since his mother was in hospital, his sister paid the bill.

3.05 According to the appellant, old age pension program does not exist in the Philippines but no written confirmation by the Philippine Government was given as evidence.

3.06 As Exhibit A-1 was filed a medical certificate dated August 22, 1977, signed by Dr Lawn of Baccod Health Center and it reads as follows:

To whom it may concern:

This is to certify that Mrs Aurea Cardona was examined by the undersigned and found to be suffering from heart disease. She is being treated. by the undersigned at present and her treatment will continue probably for 4-6 months more for further . . .

3.07 According to the appellant, his mother is mentally alert. Even if she has been sick for many years, she can walk and have a normal every day life.

4. Law—Jurisprudence—Comments

4.1 Law

Paragraph 109(1 )(f) of the new Act is concerned in the present case and it reads as follows:

109. Deductions permitted by individuals.

(1) 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:

(f) Other dependants—an amount expended by the individual during the year for the support of a person who, during the year, was dependent upon the individual for support and was

(i) his parent or grandparent and dependent by reason of mental or physical infirmity,

(ii) his brother or sister

(A) under 21 years of age,

(B) 21 years of age or over and dependent by reason of mental or physical infirmity, or

(C) 21 years of age or over and in full-time attendance at a school or university,

not exceeding an amount equal to,

(iii) if the person has not attained the age of 16 years before the end of the year, $300 less /2 of the amount, if any, by which the income for the year of the person exceeds $1,100, and

(iv) in any other case, $550 less the amount, if any, by which the income for the year of the person exceeds $1,150.

4.2 Jurisprudence

The following jurisprudence was cited by the respondent:

1. Stephen Kopinski v MNR, 41 Tax ABC 41 ; 66 DTC 303;

2. Zoltan Tanto v MNR, 41 Tax ABC 73; 66 DTC 332;

3. Fouad Zaki v MNR, [1978] CTC 2843; 78 DTC 1583;

4. Asit Hazra v MNR, [1978] CTC 2844; 78 DTC 1618.

4.3 Comments

All the conditions required in section 109(1 )(f) quoted above must be met so that the personal deduction can be claimed. One of those conditions is that the appellant’s mother is dependent upon him.

The appellant has not reversed the burden of proof which was on his shoulders. On the contrary, the facts explained in paragraphs 3.02 and 3.03 of the Facts prove that his mother is not dependent upon him.

5. Conclusion

The appeal is dismissed in accordance with the above Reasons for Judgment.

Appeal dismissed.