Date: 20011116
Docket: 2001-2745-IT-I
BETWEEN:
ROBERT BIGGS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasonsfor
Judgment
Beaubier, J.T.C.C.
[1]
This appeal pursuant to the Informal Procedure was heard at
Victoria, British Columbia, on November 9, 2001. The Appellant
was the only witness.
[2]
Paragraphs 2 to 5 inclusive of the Reply to the Notice of Appeal
read:
2.
In computing taxes payable for the 1999 taxation years the
Appellant claimed the Equivalent to Spouse Tax Credit of
$5,718.00 (the "Credit").
3.
The Minister of National Revenue (the "Minister")
reassessed the Appellant to disallow the Credit.
4.
In so reassessing the Appellant for the 1999 taxation year, the
Minister relied on the following assumptions of fact:
a)
the Appellant and Gisele Marie Brideau (the
"Ex-Spouse") were divorced effective May,
1994;
b)
in accordance with an Order of the Supreme Court of B.C. dated
April 26, 1994 (the "Order"), the Appellant and the
Ex-Spouse were given joint custody and guardianship of the three
children of the marriage (the "Children"), Matthew
Biggs ("Matthew"), Julian Biggs ("Julian")
and Michael Biggs ("Michael"), with the primary
residence for the Children being with the Ex-Spouse;
c)
the Order also required that the Appellant pay to the
Ex-Spouse the sum of $250.00 per month per child for the
support of Matthew and Julian effective April 1, 1994 and on
the first of each and every month thereafter so long as they
remain children of the marriage or until further Order of the
Court;
d)
the Order further provided that the Appellant pay to the
Ex-Spouse $100.00 per month for the support of Michael
effective April 1, 1994 and continuing thereafter for so long as
Michael resides with the Ex-Spouse on a full time basis or
until further Order of the Court;
e)
on or about June 24, 1997, Matthew began to live with the
Appellant;
f)
as of June, 1997, the Appellant no longer made payments to the
Ex-Spouse for the support of Matthew;
g)
there has been no Court Order subsequent to the Order; and
h)
the Appellant and the Ex-Spouse have not entered into any written
agreement which would supercede the Order.
B.
ISSUES TO BE DECIDED
5.
The issue is whether the Appellant is entitled to the Credit in
the 1999 taxation year.
[3]
Assumptions 4 a) to g) inclusive were not refuted.
[4]
Respecting assumption 4 h), the Appellant filed Exhibit A-1, an
Agreement which he and his ex-spouse signed in 2001. It
reads:
AGREEMENT
This Agreement is dated for reference the 30th day
of June, 1997 (the "Reference Date")
BETWEEN:
ROBERT JOHN BIGGS
AND:
GISELE MARIE BRIDEAU
WHEREAS the above named parties wish to enter into this
agreement to supersede the Order of the Supreme Court of B.C.
dated April 26, 1994 (the "Order"):
The Order is superseded to reflect that effective from
July 1, 1997, there will be no requirement for child support
payments from
ROBERT JOHN BIGGS to GISELE MARIE BRIDEAU in respect of
MATTHEW ROBERT BIGGS, born July 14, 1983.
IN WITNESS WHEREOF the parties hereto have executed this
Agreement as of the Reference Date.
SIGNED, SEALED AND
DELIVERED
)
in the presence
of
)
)
_____"signature"____________________
)
Name
)
)
"Rob Lervold"______________________
)
Address
)
)"signature"
"1295 Kingfisher
Rd"___________________)Robert John Biggs
)
____"Banker"_________________________)
Occupation
)
"stamp"
SIGNED, SEALED AND
DELIVERED
)
in the presence
of
)
)
_____"signature"____________________
)
Name
)
)
"Rob Lervold"______________________
)
Address
)
)"signature"
"1295 Kingfisher
Rd"___________________)Gisele Marie Brideau
)
____"Banker"_________________________)
Occupation
)
"stamp"
"Tax Court of Canada stamp"
[5]
The Appellant and his former spouse agreed orally to the matters
described in assumptions 4 e) to g) inclusive because, like most
people in their situations, they could no longer afford lawyers
to document their post-marital arrangements. The divorce and its
legal manifestations left them without funds. However, upon this
reassessment they learned that a written agreement was necessary
under the Income Tax Act to evidence their rearrangements
and they signed it in 2001, retroactively.
[6]
In 1999 the Appellant was not married, was supporting Michael,
his child under 18 who resided with, and was wholly dependant for
support on the Appellant. The Appellant and his ex-wife had
orally agreed that the Court Order for support of Michael would
not apply and that the Appellant would have custody and support
Michael in his home and the Appellant did this.
[7]
In subsection 56.1(4) "support amount" is described as
an amount "receivable under an order of a competent tribunal
or under a written agreement". Subsection 56.1(4) does not
state that a written agreement cannot be retroactive respecting
what happened in this case. Indeed, in this case
Exhibit A-1, the agreement, is not retroactive; rather
it is written evidence of what the parties in fact agreed to and
did on a timely basis for the period in question. More important,
in assumption 4 d), the Respondent pleaded that the Order
respecting support for Michael only continued in effect "so
long as Michael resides with the Ex-Spouse on a full time basis
...". Thus, the obligation to pay support pursuant to the
Order only existed as long as Michael resided with the
Appellant's ex-spouse. Exhibit A-1 confirms the fact that
after July 1, 1997, Michael resided with the Appellant and that
support payments for Michael ceased at that time. Therefore the
obligation to pay support pursuant to the Order ceased on July 1,
1997. During the 1999 taxation year no support amount was
payable and all of the other requirements under s. 118 were met.
Therefore the Appellant was entitled to the equivalent-to-spouse
credit.
[8]
The appeal is allowed and this matter is referred to the Minister
of National Revenue for reconsideration and reassessment
accordingly.
[9]
The Appellant is awarded costs of $100.00 to reimburse him for
disbursements incurred in carrying out this appeal.
Signed at Ottawa, Canada, this 16th day of
November, 2001.
"D. W. Beaubier"
J.T.C.C.
COURT FILE
NO.:
2001-2745(IT)I
STYLE OF
CAUSE:
Robert Biggs v. The Queen
PLACE OF
HEARING:
Victoria, British Columbia
DATE OF
HEARING:
November 9, 2001
REASONS FOR JUDGMENT
BY:
The Honourable Judge D. W. Beaubier
DATE OF
JUDGMENT:
November 16, 2001
APPEARANCES:
Agent for the
Appellant:
Ron Hampton
Counsel for the
Respondent:
Michael Taylor
COUNSEL OF RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-2745(IT)I
BETWEEN:
ROBERT BIGGS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on November 9, 2001 at Victoria,
British Columbia by
the Honourable Judge D. W. Beaubier
Appearances
Agent for the
Appellant:
Ron Hampton
Counsel for the
Respondent:
Michael Taylor
JUDGMENT
The
appeal from the reassessment made under the Income Tax Act
for the 1999 taxation year is allowed, and the matter is
referred back to the Minister of National Revenue for
reconsideration and reassessment in accordance with the attached
Reasons for Judgment.
The
Appellant is awarded costs fixed in the amount of $100.00 to
reimburse him for disbursements.
Signed
at Ottawa, Canada, this 16th day of November,
2001.
J.T.C.C.
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