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Citation: 2003TCC507
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Date: 20030722
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Docket: 2002-4483(IT)I
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BETWEEN:
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WILLIAM MCCARTHY,
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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
Beaubier, J.
[1] This appeal pursuant to the
Informal Procedure was heard at London, Ontario, on July 10,
2003. The Appellant was the only witness.
[2] Paragraphs 6 to 9 of the Reply to
the Notice of Appeal read:
6. The
Minister reassessed the Appellant for the 1999, 2000 and 2001
taxation years to reduce the deduction for support payment
claimed in 1999 to $880 and to disallow the deductions for
support payments claimed in 2000 and 2001. The concurrent Notices
were mailed on April 22, 2001.
7. In so
reassessing the Appellant, the Minister made the following
assumptions of fact:
(a) throughout the
1999, 2000 and 2001 the Appellant was divorced from his former
spouse (the "Spouse");
(b) a Court Order
dated June 20, 1986 (the "First Order"), required the
Appellant to pay child support of $216.66 per month for each of
his three children Francis John McCarthy ("Francis"),
Erin Julia McCarthy ("Erin"), and Olive Kathleen
McCarthy ("Kathleen"), to a total amount of
$649.98;
(c) the Appellant
and the spouse had not signed an election to have the old tax
rules apply to the child support payments made after April 30,
1997;
(d) the Appellant
fell in arrears in respect of child support payable;
(e) a Court Order
dated August 30, 1999 (the "Second Order"), varied the
amounts of the child support payments established by the First
Order, ordered that all arrears accruing prior to January 1,
1999, be rescinded, and required the Appellant to begin paying
arrears in the amount of $1,438.18 that have accrued for the
period from January 1, 1999 to June 30, 1999;
(f) according
to the terms of the Second Order, the Appellant was required,
commencing on December 31, 1998, to stop paying support payments
for Francis and to continue making the same total payments of
child support as before, but applicable to Erin and Olive
alone;
(g) as a result of
the Second Court, the amount payable for each of the two children
Erin and Olive was higher than the amounts payable ordered under
the First Order;
(h) the total child
support payments made by the Appellant during the 2000 and 2001
taxation years, did not exceed the amount of the child support
payable required by the Second Order;
(i) in the
1999, 2000 and 2001 taxation years, the amount deductible by the
Appellant in respect of child support payments made by him in
those years, was $880, $0 and $0, respectively.
B.
ISSUES TO BE DECIDED
8. The issue
is whether the amounts of $7,479 $6,262 and $4,386, claimed by
the Appellant on account of child support payments, were
deductible in computing the Appellant's income for the 1999,
2000 and 2001 taxation years, respectively.
C.
STATUTORY PROVISIONS, GROUNDS RELIED ON AND RELIEF
SOUGHT
9. He relies
on sections 56, 60 and 60.1, subsections 56.1(4) and 60.1(4), and
paragraph 60(b) of the Income Tax Act, R.S.C. 185 (5th
Supp.) c. 1 (the "Act") as amended for the 1999,
2000 and 2001 taxation years.
[3] Respondent's counsel placed
the Orders of the Court in question and an Interim Agreement
executed between the dates of the two Orders in question into
evidence. (Exhibits R-1, R-2 and R-3).
[4] The Appellant's own testimony
described the manner and interpretations of the Orders, Agreement
and actions of the parties over what is now 17 years of bitter
acrimony which include various accusations of withholding or
non-payment of child support, and at least one public
confrontation. They did not refute the interpretation placed on
the results of the Orders and Agreement stated by the assumptions
in the Reply.
[5] The result is that this case is
identical in its effect and result to that described by Bowman,
A.C.J., in Kovarik v. Canada, [2001] T.C.J. No. 181
respecting the Orders in question in this case.
[6] A copy of Kovarik was given
to the Appellant by Respondent's counsel.
[7] In these circumstances this appeal
is dismissed for the reasons described in Kovarik.
Signed at Vancouver, British Columbia, this 22nd day of July
2003.
Beaubier, J.
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