Date: 19980608
Docket: 97-2051(IT)I
97-2488(IT)I
BETWEEN:
KINGSLEY AWUAH,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
AND
97-2055(IT)I
97-2489(IT)I
BETWEEN:
DORIS AWUAH,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
REASONS FOR JUDGMENT
O'Connor, J.T.C.C.
[1] These four appeals were heard on
common evidence at Toronto, Ontario on May 21, 1998.
Issues
[2] The issues are:
1. Whether in the years
1992 through 1994 Doris Awuah was entitled to tax credits for
equivalent to spouse amounts in respect of her child, Yaa Awuah,
born in 1992.
2. Whether Doris Awuah in
the 1993 and 1994 years was entitled to tax credits for
additional personal amounts of $1,583 in each of those years in
respect of her mother.
3. Whether Doris Awuah in
the 1995 year was entitled to a deduction of $6,000 as child care
expenses.
4. Whether Kingsley Awuah
in the years 1992 through 1995 was entitled to tax credits for
equivalent to spouse amounts in respect of his brother Kofi
Awuah, aged about 12 in 1992.
5. Whether Kingsley Awuah
in the 1993 year was entitled to a tax credit of $2,992 for
tuition fees and education amount transferred from a child in
respect of his brother, Otchere B.K. Awuah aged about 24 in
1992.
6. Whether Kingsley Awuah
in the 1992 and 1993 years was entitled to deductions of $2,000
and $2,105 as child care expenses in respect of his brother Kofi
Awuah.
[3] The basic facts are as follows.
The Appellants married in the seventies. They are the parents of
one child born in 1992 and another in 1994. They also cared for
Kingsley Awuah's brother Kofi. Prior to 1992 they lived
together in rented premises. In 1992 they purchased 58 McCallum
Court, Brampton and continued to live together in that home. They
signed a Separation Agreement on January 12, 1993 which states
they had lived separated and apart continuously since October 15,
1992. They assert they were separated but stayed together for the
children and to try and save the marriage.
[4] The following are taken from the
Replies to the Notices of Appeal:
97-2055(IT)I: Re: Doris Awuah
6. In so
assessing and reassessing the Appellant, the Minister made the
following assumptions of fact:
Equivalent-to-spouse Amount:
(i) in the
1992, 1993 and 1994 taxation years, the Appellant made a claim
for equivalent-to-spouse amounts in respect of her child, Yaa
Awuah;
(ii) in the 1992,
1993 and 1994 taxation years, the Appellant was a married
person;
(iii) in the 1992, 1993
and 1994 taxation years, the Appellant lived with [her]
spouse;
(iv) the Appellant's
spouse was not living separate and apart from the Appellant at
the end of the 1992, 1993 and 1994 taxation years.
Additional Personal Amount:
(v) in the 1993 and
1994 taxation years, the Appellant made a claim for additional
personal amounts in respect of her mother, Ama Amawkwah;
(vi) at no time in the
1993 and 1994 taxation year was the Appellant's mother
dependent on the Appellant for support because of mental or
physical infirmity.
97-2489(IT)I: Re: Doris Awuah - 1995
6. In so
reassessing the Appellant, the Minister made the following
assumptions of fact:
(a) the appellant
has not proven the payments as or on account of child care
expenses by filing with the Minister one or more receipts each of
which was issued by the payee and contains, where the payee is an
individual, that individual's Social Insurance Number;
(b) for the 1995
taxation year, the appellant reported income in the amount of
$26,853 and her spouse reported income in the amount of $20,175;
and
(c) the Appellant
was not living separate and apart from her spouse at the end of
the 1995 taxation year.
97-2051(IT)I:Re Kingsley Awuah
8. In so
assessing and reassessing the Appellant, the Minister made the
following assumptions of fact:
Equivalent-to-spouse Amount:
(a) in the 1992,
1993 and 1994 taxation years, the Appellant made a claim for
equivalent-to-spouse amounts in respect of his brother, Kofi
Awuah;
(b) in the 1992, 1993 and
1994 taxation years, the Appellant was a married person;
(c) in the 1992,
1993 and 1994 taxation years, the Appellant lived with his
spouse;
(d) the
Appellant's spouse was not living separate and apart from the
Appellant at the end of the 1992, 1993 and 1994 taxation
years;
Tuition Fees & Education Amount Transferred from a
Child:
(e) in the 1993
taxation year, the Appellant made a claim for tuition fees and
education amount transferred from a child in respect of his
brother, Ochere B.K. Awuah in the amount of $2,992.00;
(f) in the
1993 taxation year, the Appellant was not the parent or
grandparent of Otchere B.K. Awuah;
Child Care Expenses:
(g) in the 1992 and
1993 taxation years, the Appellant made a claim for child care
expenses in respect of his brother, Kofi Awuah;
(h) at all relevant
times, the Appellant did not incur child care expenses for the
purposes of providing child care services for an eligible child
of the Appellant; and
(i) the
appellant has not proven the purported child care expenses by
filing with the Minister one or more receipts each of which was
issued by the payee and containing the payee's social
insurance number.
97-2488(IT)I - Re Kinglsey Awuah - 1995
5. In so
reassessing the Appellant, the Minister made the following
assumptions of fact:
Equivalent-to-spouse Amount:
(a) in the 1995
taxation year, the Appellant made a claim for
equivalent-to-spouse amounts in respect of his brother, Kofi
Awuah;
(b) in the 1995
taxation year, the Appellant was a married person;
(c) in the 1995
taxation year, the Appellant lived with his spouse;
(d) the
Appellant's spouse was not living separate and apart form the
Appellant at the end of the 1995 taxation year.
Analysis
[5] All references below are to
provisions of the Income Tax Act.
[6] Paragraph 118(1)(b) provides a
credit for an "equivalent-to-married" amount. To be
entitled a married individual must meet various conditions, one
of which is that the married individual can neither have
supported nor lived with his or her spouse nor can the individual
have been supported by his or her spouse
(118(1)(b)(i)).
[7] Paragraph 118(1)(d)
provides for a credit for an individual in respect of certain
dependants over age 18, such as a mother. One condition is that
the dependant must be dependant on the individual by reason of
mental or physical infirmity.
[8] Section 63 provides for the
deduction of child care expenses for services in respect of an
eligible child of the taxpayer incurred in order to permit the
taxpayer to pursue employment, etc. In the case of two supporting
taxpayers, the deduction must generally be taken by the taxpayer
with the lower income. One condition is that the payment for the
services must be proven by filing with the Minister of National
Revenue receipts and when the payee is an individual, that
individual's Social Insurance Number.
[9] Section 118.5 provides a credit
for tuition fees and section 118.9 provides for the transfer of
that credit to the student's parent or grandparent.
Subsection 252(1) expands the meaning of "child"
and inferentially the meaning of "parent". For example,
a child can be any person, such as a brother, who is wholly
dependant on the taxpayer for support and of whom the taxpayer
has custody and control.
Decision
[10] It remains to apply the above
provisions to the facts in these appeals.
[11] With respect to the equivalent to
spouse tax credit, the Appellants are not entitled to it in any
year in which it was denied by the Minister because at all
relevant times they were married and were not living separate and
apart. The Separation Agreement was not followed. If anything
clearly demonstrates they were not separate and apart, it was the
birth of their second child in 1994.
[12] As to the child care expenses, none are
allowed because the Appellants did not provide receipts or the
social insurance numbers of the care-givers.
[13] As to the additional amounts in 1993
and 1994 for Doris Awuah, since her mother was not dependant upon
Doris Awuah because of mental or physical infirmity, the
additional amounts were properly disallowed.
[14] As to tuition fees and education amount
of Kingsley Awuah in 1993, as Kingsley Awuah was not the parent
of his brother, even considering the extended meaning of
"child" in subsection 252(1) (the taxpayer did not have
custody and control), the claim was properly disallowed.
[15] Consequently the appeals are
dismissed.
Signed at Ottawa, Canada this 8th day of June 1998.
J.T.C.C.
Email this Content