[OFFICIAL ENGLISH TRANSLATION]
Date: 19980126
Docket: 97-590(IT)I
BETWEEN:
ÉLIZABETH PELLETIER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
G. Tremblay, J.T.C.C.
Point at issue
[1] According to the Notice of Appeal
and the Reply to the Notice of Appeal, the issue is whether,
during the 1993 and 1994 taxation years, the appellant had, as
the respondent submits, a common-law spouse by the name of
Éric Porlier. If so, did the respondent correctly compute
Mr. Porlier's income in calculating the child tax benefit for
1993 and 1994 as $2,796.40 and as $3,794.05 respectively?
[2] According to the appellant, Mr.
Porlier was just a fellow tenant. If he was the appellant's
common-law spouse, was the Minister right to disallow the goods
and services tax (GST) credit for 1993 and revise to nil the
appellant's equivalent-to-married credit in the amount of $356.50
for her son Maxime? According to the appellant, Éric
Porlier was never her common-law spouse but a co-tenant.
Burden of proof
[3] The appellant has the burden of
showing that the respondent's assessments are incorrect. This
burden of proof results from a number of judicial decisions,
including a decision of the Supreme Court of Canada in
Johnston v. Minister of National Revenue.[1]
[4] In Johnston, the Court held
that the facts assumed by the respondent in support of his
decision are presumed to be true until proven otherwise. In the
case at bar, the facts assumed by the respondent are set out in
subparagraphs (a) to (l) of Paragraph 7 of the Reply to the
Notice of Appeal. This paragraph reads as follows:
[TRANSLATION]
7. In making
the notices of determination for child tax benefits for the 1993
and 1994 base taxation years, the reassessments for the appellant
for the 1993 taxation year, and the assessment for the 1994
taxation year, the Minister relied, inter alia, on the
following facts:
(a) on her tax
return for the 1992 taxation year, the appellant indicated the
following address: 526 Route des Prêtres, St-Pierre, Ile
d'Orléans, Quebec; [admitted]
(b) on his tax
return for the 1992 taxation year, Éric Porlier
(hereinafter the "common-law spouse") indicated the following
address: 526 Route des Prêtres, St-Pierre, Ile
d'Orléans, Quebec; [no knowledge]
(c) on her tax
return for the 1993 taxation year, the appellant indicated the
following address: 526 Route des Prêtres, St-Pierre, Ile
d'Orléans, Quebec; [admitted]
(d) on a T4 form
issued in Mr. Porlier's name by "Election Activities" for the
1993 taxation year, the address indicated was 526 Route des
Prêtres, St-Pierre, Ile d'Orléans, Quebec; [no
knowledge]
(e) on her tax
return for the 1994 taxation year, the appellant indicated the
following address: 897 Gabrielle-D'Anneville, Beauport, Quebec;
[admitted]
(f) on his tax
return for the 1994 taxation year, the common-law spouse
indicated the following address: 897 Gabrielle-D'Anneville,
Beauport, Québec; [no knowledge]
(g) Ms. Porlier, the
mother of the common-law spouse, stated that Éric Porlier
had lived with the appellant since 1992; [no
knowledge]
(h) the appellant
admitted that she had lived with the common-law spouse since 1992
but that he never gave her any money; [admitted]
(i) the
appellant separated from her common-law spouse in October 1995;
[admitted]
(j)
consequently, the Minister revised the appellant's non-refundable
equivalent-to-married tax credits for her son Maxime to nil for
the 1993 and 1994 taxation years; [admitted]
(k) the Minister
also took the common-law spouse's income into account in revising
the appellant's child tax benefits for the 1993 and 1994 base
taxation years to $2,796.40, for the 1993 base taxation year, and
to $3,794.05 for the 1994 base taxation year; [no
knowledge]
(l) in
addition, the Minister also took the common-law spouse's income
into account in revising the appellant's goods and services tax
credit to nil and determined an excess amount of $356.50 for the
1993 taxation year. [admitted]
Proof of the facts
[5] Following the above admissions,
the evidence was completed by the testimony of the appellant and
Muguette Nadeau, an appeals officer of the respondent, and by the
filing of Exhibits I-1 to I-8.
[6] As a result of the appellant's
testimony and the filing of Exhibits I-1, I-2, I-5 and I-6, that
is, the tax returns of the appellant and Mr. Porlier, the
evidence showed that, during the 1992 and 1993 taxation years,
the appellant and Éric Porlier lived at 526 Route des
Prêtres, St-Pierre, Ile d'Orléans, Quebec.
[7] Moreover, according to Exhibits
I-3 and I-6 (1994 tax returns) and the appellant's admission, she
and Éric Porlier lived at 897 Gabrielle-D'Anneville
Street, Beauport, Quebec, in 1994.
[8] In addition, in a telephone call
on March 29, 1995, to appeals officer Muguette Nadeau (Exhibit
I-4), the appellant admitted that Mr. Porlier had lived with her
since 1992 and that she had left him in October 1995 as a result
of a court case involving the children.
[9] The appellant met Mr. Porlier
while taking courses at the Université Laval's
École de théatre. The appellant's spouse had left
her in November 1991. Mr. Porlier came to live with her in
May 1993. According to the appellant, the dwelling on des
Prêtres Street, Ile d'Orléans, had eleven rooms. Mr.
Porlier occupied one room. It was the same in Beauport. Mr.
Porlier bought his own food, i.e., about $200 per month. He did
not give her any money. She testified that she did this to help
him out.
[10] According to Ms. Nadeau, in a telephone
call to the appellant on January 31, 1995, Ms. Pelletier told her
that Mr. Porlier had gone back to his mother's. Ms. Nadeau called
Mr. Porlier's mother who told her that her son had been
Élizabeth Pelletier's common-law spouse since 1992.
[11] Having regard to the evidence as a
whole, the Court finds that the appellant and Mr. Porlier were
common-law spouses in 1992, 1993 and 1994. Accordingly, under the
provisions of 252(3) and 252(4) of the Act, the appellant
and Mr. Porlier are deemed to be spouses of each other during the
1992, 1993 and 1994 taxation years.
[12] No evidence was produced to determine
the common-law spouse's income for the 1993 and 1994 base
taxation years (para. [4]: 7(k)), the calculations revising the
goods and services tax credit to zero and the excess amount of
$356.50 (para. [4]: 7(l)).
[13] The assessment issued against the
appellant is therefore correct.
Conclusion
[14] The appeal is dismissed.
J.T.C.C.
Quebec, Canada
January 26, 1998
Translation certified true
on this 3rd day of June 2003.
Sophie Debbané, Revisor
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