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Docket: 2002-3171(IT)I
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BETWEEN:
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JUDITH SCHWANZ,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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____________________________________________________________________
Appeals heard on May 5, 2003 at Toronto,
Ontario
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Before: The Honourable Judge L.M. Little
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Appearances:
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For the Appellant:
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The Appellant herself
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Counsel for the Respondent:
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Joel Oliphant
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____________________________________________________________________
JUDGMENT
The
appeals from the assessments made under the Income Tax Act
for the 1997 and 1998 taxation years are dismissed, without
costs, in accordance with the attached Reasons for Judgment.
Signed at Toronto, Ontario, this 7th day of May 2003.
J.T.C.C.
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Citation: 2003TCC316
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Date: 20030507
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Docket: 2002-3171(IT)I
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BETWEEN:
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JUDITH SCHWANZ,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
Little, J.
A. FACTS
[1] The Appellant was the mother of
three children:
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Born
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Holly M. Kirkwood
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December 18, 1982
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Sarah A. Kirkwood
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July 05, 1987
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Roy A. Kirkwood
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September 25, 1990
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(The above children are hereinafter referred to as the
"Children").
[2] Andrew Kirkwood was the father of
the Children.
[3] The taxation years in question
are:
1997
Base Taxation Year - (for the period July 1998 to June
1999).
1998
Base Taxation Year - (for the period July 1999 to June
2000).
[4] The Minister of National Revenue
(the "Minister") determined that the Children were
residing with the Appellant at all relevant times in the 1997 and
1998 base taxation years. The Minister therefore concluded that
the Appellant was entitled to receive the Canada Child Tax
Benefit ("CCTB") in respect of the Children.
[5] The Minister paid the Appellant
the CCTB in respect of the Children during the 1997 and 1998 base
taxation years. The following CCTB payments were paid by the
Minister to the Appellant in respect of the Children:
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1997
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$4,102.08
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1998
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$4,179.18
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[6] The Appellant stated that she did
not advise the Minister that the Children had ceased to reside
with her in the 1997 and 1998 base taxation years.
[7] The Appellant maintains that she
paid the CCTBs of $4,102.08 and $4,179.18 in cash to Andrew
Kirkwood.
[8] The Minister concluded that since
the Children were not residing with the Appellant in the 1997 and
1998 base taxation years the Appellant was not entitled to
receive the CCTB in respect of the Children for the 1997 and 1998
base taxation years. The Minister has therefore demanded that the
Appellant repay the amounts of $4,102.08 and $4,179.18.
B. ISSUE
[9] The issue is whether the Appellant
is required to repay the CCTB payments of $4,102.08 and $4,179.18
that she received in respect of the Children in the 1997 and 1998
base taxation years respectively.
C. ANALYSIS
[10] Section 122.61 of the Income Tax
Act (the "Act") provides for payment of the
CCTB to an "eligible individual". In order to qualify
as an "eligible individual" a person must reside with
the child (see definition of "eligible individual" in
section 122.6 of the Act). In this situation the evidence
is clear that the Appellant did not reside with the Children
during the 1997 and 1998 base taxation years. The Appellant was
therefore not an eligible individual within the meaning of the
definition contained in the Act in the 1997 and 1998 base
taxation years.
[11] Before concluding my comments, I wish
to note that I have some sympathy for the Appellant since she
maintains that she gave all of the CCTB payments that she
received to the children's father, Andrew Kirkwood. It seems
to me that the Appellant's dispute is not with the Minister
but with Andrew Kirkwood. In this connection it should be noted
that in a memorandum dated November 18, 2001 (Exhibit A-1) Andrew
Kirkwood said as follows:
I Andrew Kirkwood, declare that I received $6,000.00 through
Canada Customs and Revenue Agency. I received all child credits
from Judith Anne Shwanz regarding our children, Holly, Sarah and
Roy. I take all responsibilities hereafter.
Based on the statements made by Mr. Kirkwood in this
memorandum, it would appear that the Appellant should obtain the
payments made to satisfy the Minister's claim from Andrew
Kirkwood.
[12] The appeals are dismissed, without
costs.
Signed at Toronto, Ontario, this 7th day of May 2003.
J.T.C.C.
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