Rowe
D.J.T.C.C.
(orally):—The
difficulty
I
have
is
that
the
jurisdiction
I
have
and
the
jurisdiction
that
governs
the
proceedings
is
to
make
a
determination
as
to
whether
or
not
in
a
particular
instance
the
assessment
appealed
from
is
an
assessment
which
has
been
undertaken
by
the
Minister
of
National
Revenue
in
accordance
with
the
law.
I
do
not
have
the
ability
to
amend
the
Income
Tax
Act,
R.S.C.
1985
(5th
Supp.),
c.
1
(the
’’Act”);
I
don’t
have
the
ability
to
read
into
a
specific
provision
of
the
Income
Tax
Act
something
which
is
not
supportable
in
the
course
of
that
particular
process
and,
unfortunately,
the
jurisdiction
does
not
extend
to
doing
that
which
ought
to
have
been
done;
or
issuing
orders
which
retroactively
are
capable
of
fitting
people
into
categories;
or
purporting
to
make
decisions
to
do
the
right
thing
if
that
is
not
capable
of
being
supported
by
the
wording
of
the
Income
Tax
Act
itself.
There
is
no
question
but
that
the
intent
of
the
particular
legislation
in
this
area
is
that
one
or
other
of
the
parents
of
the
child
be
entitled
to
deduct
from
income
amounts
paid
for
an
eligible
child
for
child-care
expenses.
The
difficulty
that
was
encountered
by
Mr.
Matsi
in
the
1991
taxation
year
is
that
because
he
was
starting
a
new
business
and
was
working
hard
at
it
and
child-care
expenses
were
expended,
the
income
against
which
he
attempted
to
deduct
the
child-care
expenses
was
income
that
came
from
a
Registered
Retirement
Savings
Plan
withdrawal
in
the
amount
of
$17,138.
In
the
1991
taxation
year
the
income
of
the
appellant’s
wife
exceeded
that
of
the
appellant
in
that
she
earned
from
employment
the
sum
of
$41,866.
Naturally,
following
the
wording
of
the
legislation
and
the
bulletins
and
forms
that
came
their
way
from
Revenue
Canada,
when
Mr.
Matsi
filled
out
his
income
tax
return
he
was
the
one
who
claimed
the
eligible
childcare
expenses
because
he
had
the
lower
income
of
the
two
parents
defined
as
the
’’supporting
persons"
under
paragraph
63(3)(d)
of
the
Act.
It
then
came
as
a
surprise
to
him
to
discover
that
the
RRSP
income,
although
it
was
"income"
for
the
purposes
of
the
Income
Tax
Act
upon
which
he
paid
tax,
was
not
in
fact
"earned
income"
as
defined
by
paragraph
63(3)(b)
of
the
Income
Tax
Act
to
qualify
him
to
deduct
the
child-care
expenses
that
he
had
paid.
At
that
particular
point
in
time,
whether
or
not
something
could
have
been
done
by
Mrs.
Matsi
attempting
to
claim
the
child-care
expenses
is
something
that
we
can
only
speculate
upon
but
certainly
the
intent
of
the
Act
is
very,
very
clear
that
where
the
expenses
have
legitimately
been
expended
one
or
other
of
these
supporting
persons
should
therefore
be
entitled
to
claim
the
deduction.
The
difficulty
that
I
have
in
this
particular
instance
on
the
appeal
of
Mr.
Paul
Matsi
for
his
1991
taxation
year
is
that
the
legislation
cannot,
in
my
view,
be
read
in
such
a
manner
so
as
to
include
RRSP
withdrawal
income
into
the
category
of
earned
income
under
paragraph
63(3)(b)
of
the
Income
Tax
Act.
Is
there
an
inequity
visited
upon
Mr.
Matsi
and,
indirectly,
upon
his
wife?
The
answer
to
that,
in
my
view,
is
yes.
Was
the
intent
of
the
Act
frustrated
by
the
specific
wording
utilized
in
the
Act,
perhaps
unintentionally,
by
Parliament?
Again,
the
answer
to
that,
in
my
view,
is
in
the
affirmative.
Can
I,
at
this
point,
do
anything
about
it?
And
the
answer
to
that
is
in
the
negative.
The
Minister,
in
my
view,
strictly
in
accordance
with
the
Income
Tax
Act
correctly
undertook
the
appropriate
assessment
in
this
case;
that
constitutes
my
jurisdiction.
And
as
a
consequence,
therefore,
I
have
no
alternative
other
than
to
find
that
the
assessment
was
done
in
accordance
with
the
Income
Tax
Act
and
that
it
must
stand
and,
therefore,
the
appeal
is
dismissed.
Appeal
dismissed.
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