Beaubier,
T.C.C.J.:—This
matter
was
heard
in
Regina,
Saskatchewan,
on
August
26,
1992.
It
is
an
appeal
pursuant
to
the
General
Procedure
of
this
Court
respecting
the
appellant’s
1987,
1988
and
1989
taxation
years.
This
is
a
special
case
pursuant
to
rule
59
of
the
Tax
Court
of
Canada.
The
special
case
reads
as
follows:
Facts
1.
Dr.
Gerhard
Kirchner
(the
'"appellant")
was
married
to
Leila
Kirchner
in
Austria.
Their
only
child
of
the
marriage,
Maja
Kirchner,
(the"daughter")
was
born
on
August
27,
1966
in
Germany.
Subsequently
the
appellant
and
Leila
Kirchner
were
separated
and
the
appellant
moved
to
Canada.
The
appellant
was
resident
in
Canada
during
the
taxation
years
in
question.
2.
By
order
of
Bezirksgericht
Innere
Stadt
Wien
[the
Austrian
court
in
Vienna]
(the"Court")
dated
February
20,
1980,
Sp
71/80—128,
the
appellant
was
ordered
to
make
monthly
payments
to
his
former
wife,
Leila
Kirchner,
and
to
his
daughter.
3.
By
subsequent
decision
of
the
Court
on
June
15,
1984
the
appellant's
payments
to
his
daughter
under
the
court
order
were
increased
starting
July
1,
1983
and
were
to
continue
until
his
daughter
was
capable
to
earn
her
own
living.
On
the
same
date,
the
Court
granted
the
daughter
a
garnishment
order
for
arrears
of
the
monthly
payment
on
a
continuous
basis.
4.
During
the
taxation
years
in
issue
the
appellant
made
alimony
or
maintenance
payments
to
his
former
spouse
and
to
his
daughter
as
set
forth
in
Schedule
"A"
and
claimed
such
payments
as
a
deduction
from
his
Canadian
income.
5.
During
the
taxation
years
in
issue
the
daughter
was
living
on
her
own
(separate
from
her
mother)
and
attending
university.
6.
The
payments
set
out
in
Schedule
"A"
were
made
pursuant
to
orders
of
the
Court.
7.
The
aforementioned
Court
orders
direct
that
payments
by
the
appellant
be
made
on
a
periodic
basis
and
are:
(i)
based
on
a
percentage
of
the
appellant's
income
in
the
case
of
the
former
spouse;
and
(ii)
a
fixed
amount,
in
the
case
of
the
daughter.
Relief
Sought
1.
The
issue
to
be
determined
by
this
court
is
whether
the
payments
to
the
daughter
are
deductible
in
computing
the
appellant's
income
in
the
1987,
1988,
and
1989
taxation
years
pursuant
to
paragraph
60(b)
or
60(c)
or
section
60.1
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act").
In
all
of
the
years
in
question,
introductory
phraseology
of
subsection
60.1(1)
read
as
follows:
60.1
Maintenance
payments—(1)
Where,
after
May
6,
1974,
a
decree,
order,
judgment
or
written
agreement
described
in
paragraph
60(b),
(c)
or
(c.1),
or
any
variation
thereof,
has
been
made
providing
for
the
periodic
payment
of
an
amount
by
a
taxpayer
.
.
.
.
It
is
apparent
that
the
opening
words
of
subsection
60.1(1)
govern
what
follows
in
the
subsection.
They
require
that
a
decree,
order,
judgment
or
written
agreement
must
be
that
described
in
paragraph
60(b),
(c),
or
(c.1).
All
of
these
paragraphs
refer
to
the
payment
in
question
being
made
to
a
payee
who
is
a
person
other
than
a
child
of
the
taxpayer.
In
the
instant
case
the
appellant
wishes
to
deduct
payments
made
directly
to
a
child
of
the
taxpayer
under
the
authority
of
subsection
60.1(1).
The
introductory
words
of
the
subsection
do
not
give
the
taxpayer
such
a
right.
The
appeal
is
dismissed.
This
matter
was
decided
by
virtue
of
the
parties
entering
into
an
agreed
statement
of
facts.
It
is
quite
apparent
from
the
material
and
arguments
submitted
by
both
the
appellant
and
the
Crown
that
the
parties
regarded
this
as
a
matter
of
principle
and,
further,
that
the
payment
to
the
child
in
the
instant
case
was
unique
and
enabled
the
question
before
the
Court
be
isolated
for
determination.
In
these
circumstances
there
is
no
order
as
to
costs.
Appeal
dismissed.
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