[OFFICIAL ENGLISH TRANSLATION]
|
Citation: 2004TCC539
|
|
Date: 20040819
|
|
Docket: 2003-4376(IT)I
|
|
BETWEEN:
|
|
ELISABETH KASINDI,
|
|
Appellant,
|
|
And
|
|
|
|
HER MAJESTY THE QUEEN,
|
|
Respondent.
|
REASONS FOR JUDGMENT
Bédard J.
[1] This is an appeal under the
informal procedure concerning the Canada Child Tax Benefit (CCTB)
for the 2001 base year.
[2] On April 17, 2003, the
Minister of National Revenue (the "Minister") issued a
notice of reassessment in respect of the Appellant concerning the
CCTB for the 2001 base year.
[3] In that notice, the Minister
claimed from the Appellant repayment of a CCTB overpayment
amounting to $949.69 for the 2001 base year.
[4] In making the notice of
reassessment concerning the CCTB for the base year in question,
the Minister relied on the following facts stated in
paragraph 5 of the Reply to the Notice of Appeal:
[TRANSLATION]
(a) The Appellant is
the grandmother of Joseph Kaleba Mutemberi;
(b) The Appellant
had custody of Joseph Kaleba Mutemberi until
October 30, 2002;
(c) From
October 30, 2002, until March 2003, Joseph Kaleba
Mutemberi was under the custody of his aunt
Sidonie Kaleba;
(d) The Minister
determined that the Appellant was not the eligible individual in
respect of her grandson Joseph Kaleba Mutemberi for the
period from November 2002 to March 2003 under section 122.6
of the Income Tax Act (hereinafter the
"Act");
(e) The Minister
therefore determined that the Appellant was not entitled to the
amount of $949.69 for the 2001 base year.
[5] The only issue is whether the
Minister wrongly decided that the Appellant was not an eligible
individual for the period in issue, from November 2002 to March
2003.
[6] The definition of "eligible
individual" in section 122.6 of the Income Tax
Act (the "Act") read at the time as follows:
"eligible individual" - "eligible
individual" in respect of a qualified dependant at any
time means a person who at that time
(a) resides with the qualified dependant,
(b) is the parent of the qualified dependant who
primarily fulfils the responsibility for the care and upbringing
of the qualified dependant,
(c) is resident in Canada or, where the person is
the cohabiting spouse or common-law partner of a person who is
deemed under subsection 250(1) to be resident in Canada
throughout the taxation year that includes that time, was
resident in Canada in any preceding taxation year,
(d) is not described in paragraph
149(1)(a) or 149(1)(b), and
(e) is, or whose cohabiting spouse or common-law
partner is, a Canadian citizen or a person who
(i) is a
permanent resident within the meaning of subsection 2(1) of the
Immigration and Refugee Protection Act,
(ii) is a temporary
resident within the meaning of the Immigration and Refugee
Protection Act, who was resident in Canada throughout the 18
month period preceding that time, or
(iii) is a protected
person within the meaning of the Immigration and Refugee
Protection Act,
(iv) was determined before
that time to be a member of a class defined in the
Humanitarian Designated Classes Regulations made under the
Immigration Act,
and for the purpose of this definition,
(f) where the qualified dependant resides with
the dependant's female parent, the parent who primarily
fulfils the responsibility for the care and upbringing of the
qualified dependant is presumed to be the female parent,
(g) the presumption referred to in paragraph
122.6 eligible individual (f) does not apply in prescribed
circumstances, and
(h) prescribed factors shall be considered in
determining what constitutes care and upbringing.
[7] Here we shall consider only the
conditions established in paragraphs (a) and
(b) of the definition of "eligible individual"
in section 122.6 of the Act.
[8] The questions are thus:
(i) whether the Appellant
resided with her grandson from November 2002 to March 2003;
(ii) whether the Appellant was
the parent who primarily fulfilled the responsibility for the
care and upbringing of the grandson.
Analysis
[9] The Appellant and her daughter,
Sidonie Kaliba, testified.
[10] The evidence revealed that:
(i) the Appellant's grandson
left her residence in November 2002 to go and live at the home of
his aunt, Sidonie Kaliba;
(ii) the grandson lived with his
aunt during the entire period in issue;
(iii) the Appellant transferred the
CCTBs received during the period in issue to her daughter;
(iv) the aunt also requested and
received the CCTBs in respect of the Appellant's grandson for
the same period.
[11] Since the evidence showed that the
Appellant's grandson lived with his aunt during the period in
issue, I find that the Appellant was not the "qualified
individual" during that period because the condition set in
paragraph (a) of the definition of "eligible
individual" in section 122.6 of the Act was not met.
Since it was not met, I see no point in analyzing the question
whether the Appellant was, during the period in issue, the parent
who primarily fulfilled the responsibility for the care and
upbringing of her grandson, particularly since the Appellant
brought no evidence on that point.
[12] Having regard to the above, the appeal
is dismissed.
Signed at Ottawa, Canada, this 19th day of August 2004.
Bédard J.
Certified true translation
Colette Dupuis-Beaulne
Email this Content