Ofori-Nimako v. The Queen, 2003 TCC 321 (Informal Procedure)

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Appeal heard on May 6, 2003 at Toronto, Ontario

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JUDGMENT

          The appeal from the assessment made under the Income Tax Act for the 1999 taxation year is dismissed, without costs, in accordance with the attached Reasons for Judgment.

Signed at Toronto, Ontario, this 8th day of May 2003

J.T.C.C.

REASONS FOR JUDGMENT

Little, J.

A. FACTS

[1]      The Appellant was married in Ghana on the 11th day of August 1974. The Appellant and his wife were the parents of two daughters. Both of the daughters were born in Ghana.

[2]      The Appellant moved to Canada without his wife and children in 1987.

[3]      On the 11th day of June 1994 the Circuit Court of Ghana confirmed that the marriage of the Appellant was dissolved on the 15th day of September 1992 after the payment of the amount of $8,000.00 as alimony yearly by the Appellant to his ex-spouse Elizabeth Ofori for the maintenance of the children and herself (Exhibit A-1).

[4]      The Appellant testified that he sent the sum of $8,000.00 (Cdn. $) to his ex-wife, Elizabeth, in the 1995, 1996, 1997 and 1998 taxation years. The Appellant said that when he filed his Canadian income tax returns for the 1995 - 1998 taxation years he claimed and was allowed to deduct spousal support payments in the amount of $8,000.00 in each of these taxation years.

[5]      The Appellant stated that in 1999 he sent $8,000.00 (Cdn. $) in cash to his daughter, Sophia Mensah Nimako, in Ghana to enable her to pay her living expenses and her college tuition fee. The Appellant filed a Statutory Declaration signed by his daughter, Sophia, in which she acknowledged receipt of the sum of $8,000.00 (Cdn. $) (Exhibit A-2).

[6]      When the Appellant filed his Canadian income tax return for the 1999 taxation year he deducted the sum of $8,000.00 as a spousal support payment.

[7]      By Notice of Reassessment issued for the 1999 taxation year and dated the 18th day of February 2002, the Minister of National Revenue denied the deduction of $8,000.00.

B. ISSUE

[8]      Is the Appellant allowed to deduct the amount of $8,000.00 that he paid to his daughter, Sophia, as a Support Amount in determining his income for the 1999 taxation year?

C. ANALYSIS

[9]      The phrase "support amount" is defined in subsection 56.1(4) of the Income Tax Act (the "Act")as follows:

...

"support amount" means an amount payable or receivable as an allowance on a periodic basis for the maintenance of the recipient, children of the recipient or both the recipient and children of the recipient, if the recipient has discretion as to the use of the amount, and

(a)         the recipient is the spouse or former spouse of the payer, the recipient and payer are living separate and apart because of the breakdown of their marriage and the amount is receivable under an order of a competent tribunal or under a written agreement;

[10]     The Appellant paid the sum of $8,000.00 to his daughter rather than to his spouse or former spouse. In addition the definition of "support amount" states that the recipient (i.e. the ex-spouse) must have discretion as to the use of the amount paid. The evidence is that the ex-spouse did not receive the money and did not have any discretion as to the use of the money. In this situation the sum of $8,000.00 does not qualify as a "support amount" within the definition of "support amount" in the Act. The Appellant is therefore not allowed to deduct the amount of $8,000.00 in determining his income for the 1999 taxation year.

[11]     The appeal is dismissed without costs.

Signed at Toronto, Ontario, this 8th day of May 2003.

J.T.C.C.