Agyeman v. The Queen, docket 97-3198(IT)I (Informal Procedure)

97-3198(IT)I

BETWEEN:

BOACHIE AGYEMAN,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeal heard on October 9, 1998 at Toronto, Ontario by

the Honourable Judge C.H. McArthur

Appearances

Agent for the Appellant:                       R. Frempong

Counsel for the Respondent:                C. Mohr

JUDGMENT

          The appeal from the assessments made under the Income Tax Act for the 1993, 1994 and 1995 taxation years is dismissed in accordance with the attached Reasons for Judgment.

Signed at Ottawa, Canada, this 14th day of October 1998.

"C.H. McArthur"

J.T.C.C.

Date: 19981014

Docket: 97-3198(IT)I

BETWEEN:

BOACHIE AGYEMAN,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR JUDGMENT

McArthur, J.T.C.C.

[1]      The Minister of National Revenue (the "Minister") disallowed the Appellant's claim for non-refundable tax credits in respect of a married amount of $5,380 for the taxation years 1993, 1994 and 1995.

[2]      The Minister submits that the Appellant was not a married person who supported his spouse and that he was not entitled to benefits contained in paragraph 118(1)(a) of the Income Tax Act (the "Act").

[3]      The Appellant came to the Toronto area from Ghana, where he works as a punch press operator. In 1992, he was married in Etobicoke to Delia an American citizen.

[4]      During the relevant years, Delia resided most of the time in the state of Georgia with her parents. She spent the summer months with the Appellant in the Toronto area. While with her parents she paid no rent and was supported by her parents. She does not have residency status in Canada. She does volunteer work while in Georgia. The Appellant purports to support his wife in Georgia mailing her money by way of cheques and cash. He had no cancelled cheques or other documentation.

[5]      While it is not an issue in this appeal, the Appellant stated he sent money to Ghana for the support of two children he has in that country.

Position of the Appellant as stated by his agent

[6]      The Appellant stated under oath that he supports his wife while she is in Canada during the summer months and sends her money to Georgia where she lives with her parents most of the year.

[7]      Some of Revenue Canada's documents mailed to the Appellant at his last given address were returned to the sender. The Appellant explained that he is often away in Montreal and not able to pick up his mail. He confirmed that he has had a full-time job in the Toronto area during the three years in question.

The Respondent's position

[8]      The Respondent submitted that Delia lived in Georgia with her parents, rent free, most of the year and did not have residency status in Canada and that the Appellant was not a married person who supported his spouse. Counsel submitted the question is one of credibility.

Legislation

[9]      Paragraph 118(1)(a) of the Act reads as follows:

"(a)       Married status - in the case of an individual who at any time in the year is a married person who supports his spouse, an amount equal to the aggregate of

            (i) $6,000 and

            (ii) an amount determined by the formula

$5,000 - (C- $500)

where

C          is the greater of $500 and the income of the individual's spouse for the year or, where the individual and the individual's spouse are living separate and apart at the end of the year by reason of a breakdown of their marriage, the spouse's income for the year while married and not so separated;

..."

[10]     The Appellant had the burden of proving that he was a married person in 1993, 1994 and 1995 who supported his spouse and is entitled to a non-refundable tax credit as provided in paragraph 118(1)(a) of the Act. Considering the evidence and the lack of evidence, I accept the Respondent's position. There are too many inconsistencies in the Appellant's evidence. He admits Delia lives for the most part in Georgia with her parents and that she pays no rent. He had no cancelled cheques or money order receipts indicating he sent her support. His explanation of why mail has been returned to sender lacks credibility. His testimony is not corroborated in any way.

[11]     The appeal is dismissed.

Signed at Ottawa, Canada, this 14th day of October 1998.

"C.H. McArthur"

J.T.C.C.

COURT FILE NO.:                             97-3198(IT)I

STYLE OF CAUSE:                           Boachie Agyeman and H.M.Q.

PLACE OF HEARING:                      Toronto, Ontario

DATE OF HEARING:                        October 9, 1998

REASONS FOR JUDGMENT BY:     The Honourable Judge C.H. McArthur

DATE OF JUDGMENT:                     October 14, 1998

APPEARANCES:

For the Appellant:                      R. Frempong (Agent)

Counsel for the Respondent:      C. Mohr

COUNSEL OF RECORD:

For the Appellant:

Name:                

Firm:                 

For the Respondent:                  Morris Rosenberg

                                                Deputy Attorney General of Canada

                                                          Ottawa, Canada