1999-2064(IT)I
BETWEEN:
RICHARD CONRAD MATHIS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on February 24, 2000, at London,
Ontario, by
the Honourable Judge M.A. Mogan
Appearances
For the
Appellant:
The Appellant himself
Counsel for the Respondent: Michelle
Farrell
JUDGMENT
The
appeal from the assessment of tax made under the Income Tax
Act for the 1997 taxation year is dismissed.
Signed at Ottawa, Canada, this 22nd day of March, 2000.
J.T.C.C.
Date: 20000322
Docket: 1999-2064(IT)I
BETWEEN:
RICHARD CONRAD MATHIS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Mogan J.T.C.C.
[1] During 1997, the Appellant paid
$7,200 at the rate of $600 per month for the maintenance of his
two daughters. When computing his income, the Appellant deducted
as maintenance payments the amount of $7,200 under paragraph
60(b) of the Income Tax Act. When assessing tax for
1997, the Minister of National Revenue disallowed the deduction
of $7,200. The only issue in this appeal is whether the Appellant
was entitled to the deduction of $7,200 when computing his
income. The Appellant has elected the informal procedure.
[2] The Appellant and Andrea Mathis
were married in 1979. There were two children born of the
marriage: Allison born in July 1980 and Amanda born in December
1984. The Appellant and Andrea separated in 1990 when the
Appellant moved out of the family dwelling. In 1991, Andrea's
mother (Eva Lakajos) who was a widow moved into the family
dwelling to stay with Andrea and to help look after Allison and
Amanda.
[3] The Appellant and Andrea signed a
separation agreement dated May 10, 1993 which, inter alia,
provided for payments in the amount of $500 per month from
the Appellant to Andrea for the support of their two daughters
during 1993 and 1994, and $600 per month commencing in 1995. The
Appellant started making those payments in May 1993. Divorce
proceedings had commenced but Andrea Mathis died on August 23,
1993 before the divorce was granted. After Andrea's death,
Eva Lakajos (the grandmother of Alison and Amanda) continued to
reside in the family dwelling caring for her two granddaughters.
Also, the Appellant continued to make the maintenance payments
specified in the separation agreement of May 10, 1993; the only
difference being that after August 1993, the payments were made
to Eva Lakajos who was caring for Allison and Amanda. The
Appellant has not resided in the same dwelling with Allison and
Amanda since he left the family dwelling in 1990 upon his
separation from Andrea.
[4] It is an admitted fact that in
1997, the Appellant paid $7,200 to Eva Lakajos at the rate
of $600 per month, and that those payments were for the purpose
of maintaining his two daughters, Allison and Amanda. In this
case, there are no facts in dispute. The Appellant put his appeal
on the basis of fairness. He was entitled to deduct the amounts
paid under the separation agreement so long as his wife was
alive. Following Andrea' death, he continued the same
payments to his mother-in-law because she was in fact standing in
the place of his deceased wife as the prime caregiver for his two
daughters.
[5] The provision of the Act
which permits the deduction of payments for the support of
children is paragraph 60(b) which states in part:
60 There may be
deducted in computing a taxpayer's income for a taxation year
such of the following amounts as are applicable:
(b) the total of all
amounts each of which is an amount determined by the formula
A - (B + C)
where
A is the total
of all amounts each of which is a support amount
paid after 1996 and before the end of the year by the taxpayer to
a particular person, where the taxpayer and the particular person
were living separate and apart at the time the amount was
paid,
(underline added)
The words "support amount" are defined in subsection
56.1(4) and made applicable to section 60 by subsection
60.1(4):
56.1(4)
The definitions in this subsection apply in this section and
section 56.
"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;
or
(b) the payer
is a natural parent of a child of the recipient and the amount is
receivable under an order made by a competent tribunal in
accordance with the laws of a province.
[6] The amounts paid in 1997 by the
Appellant to Eva Lakajos (the grandmother of Allison and Amanda)
are not "support amounts" within the meaning of
subsection 56.1(4) and paragraph 60(b) because Eva Lakajos
is not and never was the spouse of the Appellant, and the
Appellant never was a natural parent of a child of Eva
Lakajos.
[7] I have tried to see if the
Appellant could be entitled to a tax credit under paragraph
118(1)(b) of the Act but he does not qualify under
that paragraph because Allison and Amanda did not reside in the
same dwelling with the Appellant in 1997. The appeal is
dismissed.
Signed at Ottawa, Canada, this 22nd day of March, 2000.
J.T.C.C.
COURT FILE
NO.:
1999-2064(IT)I
STYLE OF
CAUSE:
Richard Conrad Mathis and
Her Majesty the Queen
PLACE OF
HEARING:
London, Ontario
DATE OF
HEARING:
February 24, 2000
REASONS FOR JUDGMENT BY: The Honourable
Judge M.A. Mogan
DATE OF
JUDGMENT:
March 22, 2000
APPEARANCES:
For the
Appellant:
The Appellant himself
Counsel for the Respondent: Michelle
Farrell
COUNSEL OF RECORD:
For the Appellant:
Name:
N/A
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
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