Date: 20000228
Docket: 1999-463-IT-I
BETWEEN:
ANGELA HOLDER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasonsfor
Judgment
Watson, D.J.T.C.C.
[1]
This appeal was heard in Toronto, Ontario, on February 22, 2000,
under the Informal Procedure.
[2]
In computing taxes payable for the 1994, 1995 and 1996 taxation
years, the Appellant claimed non-refundable tax credits in
respect of equivalent-to-spouse amount in the sum of $5,380.00
for each year. In computing income for the 1994, 1995 and 1996
taxation years, the Appellant deducted the amount of $4,500.00
for each year as child care expenses.
[3]
In reassessing the Appellant for the 1994, 1995 and 1996 taxation
years, the Minister of National Revenue (the
"Minister") disallowed the
equivalent-to-spouse amount and child care expenses
for each year.
[4]
In so reassessing the Appellant, the Minister made the following
assumptions of fact:
"Equivalent-to-Spouse:
a)
in the 1994, 1995 and 1996 taxation years, the Appellant made a
claim for equivalent-to-spouse amounts in respect of her son,
Brandon Holder;
b)
at the end of the 1994, 1995 and 1996 taxation years, the
Appellant was cohabiting with Lawrence Holder in a conjugal
relationship;
c)
during the 1994, 1995 and 1996 taxation years, the Appellant and
the Appellant's spouse had one eligible child, Brandon
Holder, date of birth November 11, 1993;
d)
at all relevant times, the Appellant and the Appellant's
spouse resided at 1810-40 Panorama Court in Etobicoke,
Ontario;
e)
throughout the 1994, 1995 and 1996 taxation years the Appellant
was married to Lawrence Holder;
f)
at all relevant times, the Appellant did not maintain a
self-contained domestic establishment in which she actually
supported a person who was wholly dependent for support on the
Appellant;
Child Care Expenses:
g)
in the 1994, 1995 and 1996 taxation years, the net income of the
Appellant were in the amounts of $33,829, $33,242 and $31,219
respectively, and the net income of the Appellant's spouse
were in the amounts of $8,135, $9,926 and $16,678
respectively;
h)
during the 1994, 1995 and 1996 taxation years was the
Appellant's spouse a person described in any of the
subparagraphs 63(2)(b)(iii) through
63(2)(b)(vi) inclusive of the Income Tax Act (the
"Act")."
[5]
At the hearing, the agent acting on behalf of the Appellant
admitted paragraphs a), c), e) and g) and denied paragraphs b),
d), f) and h).
[6]
The only witnesses at the hearing were the Appellant and her
spouse, Lawrence Holder.
[7]
When they were married on May 22, 1993, the Appellant was
pregnant with Brandon, born on November 11, 1993. The Appellant
claimed that they had family problems from the start because of
Lawrence's immaturity and he moved out of the house that they
had jointly purchased to move in with his mother in August 1993.
Over the period of their marriage, they attempted reconciliation
on many occasions that lasted as long as two months at a time;
further disagreements led Lawrence to move out repeatedly to his
mother's residence. A second son, Jordan, was born to them in
January 1998. In May 1998, the Appellant filed for divorce but a
new reconciliation led to the withdrawal of the petition; they
sold the first house in September 1998 and bought a new house
together on April 30, 1999. During this period, the
Appellant was a secretary and Lawrence a full-time student at
Humber College and part-time waiter at a Toronto restaurant.
[8]
During this whole period, Lawrence had all his mail sent to the
Appellant's address where he would pick it up while visiting
his son Brandon; this address was given for school, work and
income tax returns and he never used any other address. There was
no separation agreement or custody-access dispute between the
couple; Lawrence continued to pay, each month, his share of the
mortgage because, as he stated, he always intended to get back
together with the Appellant.
[9]
During the three years in issue, Brandon was cared for at the
home of an uncle's mother-in-law, Irene Francis; however, the
Appellant did not provide Revenue Canada with the address, social
insurance number or the family relationship. The Appellant
claimed that she always paid in cash without getting any receipt
and that she did not keep track of the amounts paid or the dates
and times services were rendered; the amount of $4,500 claimed in
each of the three years in issue was an approximation. Mrs.
Francis also looked after several other children of her relatives
at her house.
[10] Other
than the testimony of the Appellant and Lawrence, there was no
documentation provided at the hearing to indicate that Lawrence
was in fact living separate and apart from the Appellant;
whatever documentation that was produced, indicated his address
as the same as that of the appellant. The Appellant did not
report Lawrence's income in her income tax returns for the
three years in issue.
[11] The
Appellant had the onus of establishing on a balance of
probabilities that the Minister's reassessment for the three
years was ill-founded in fact and in law.
[12] I find
that the claim that they were living separate and apart during
these years is not consistent with the other evidence before the
Court.
[13] Taking
into consideration all the circumstances of this appeal,
including the testimony of the witnesses, the admissions and the
documentary evidence in the light of the applicable sections of
the Income Tax Act and the well-established case law, I am
satisfied that the Appellant has not succeeded in her onus.
Accordingly, the appeal is dismissed.
Signed at Ottawa, Canada, this 28th day of February 2000.
"D.R. Watson"
D.J.T.C.C.
COURT FILE
NO.:
1999-463(IT)I
STYLE OF
CAUSE:
Angela Holder and H.M.Q.
PLACE OF
HEARING:
Toronto, Ontario
DATE OF
HEARING:
February 22, 2000
REASONS FOR JUDGMENT BY: the
Honourable Deputy Judge D.R. Watson
DATE OF
JUDGMENT:
February 28, 2000
APPEARANCES:
Agent for the
Appellant:
Reuben Morgan
Counsel for the
Respondent:
Scott Simser
COUNSEL OF RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
1999-463(IT)I
BETWEEN:
ANGELA HOLDER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on February 22, 2000 at Toronto,
Ontario, by
the Honourable Deputy Judge D.R. Watson
Appearances
Agent for the
Appellant:
Reuben Morgan
Counsel for the Respondent: Scott
Simser
JUDGMENT
The
appeal from the assessments made under the Income Tax Act
for the 1994, 1995 and 1996 taxation years is dismissed in
accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 28th day of February 2000.
D.J.T.C.C.
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