D
E
Taylor:—This
is
an
appeal
heard
in
the
City
of
Edmonton,
Alberta,
on
March
17,
1980,
against
an
income
tax
assessment
for
the
year
1976
in
which
the
Minister
of
National
Revenue
included
in
the
appellant’s
income
the
amount
of
$2,700
received
from
her
former
husband.
In
assessing,
the
respondent
relied,
inter
alia,
upon
paragraph
56(1)(b)
of
the
Income
Tax
Act,
SC
1970-71-72,
c
63,
as
amended.
History
On
November
1,
1974,
the
appellant
and
her
former
husband,
Paul
Douglas
LaBrash,
entered
into
a
separation
agreement
(“agreement”)
providing,
inter
alia,
as
follows:
7.
Maintenance—On
December
1st,
1974,
and
on
the
1st
day
of
each
and
every
month
following,
during
the
joint
lives
of
the
husband
and
wife,
the
husband
shall
pay
to
the
wife:
(a)
The
sum
of
$100
for
maintenance
until
she
remarries
or
enters
into
a
living
arrangement
with
a
man
other
than
the
husband;
and
(b)
One
Hundred
Dollars
for
each
child
for
the
maintenance
of
that
child
until
one
or
more
of
the
following
occur:
(i)
The
child
becomes
16
years
old
and
ceases
to
be
in
full
time
attendance
at
a
school,
college
or
university;
(ii)
The
child
ceases
to
reside
with
the
wife;
(iii)
The
child
becomes
21
years
old;
(iv)
The
child
marries,
or
(v)
The
child
dies.
Contentions
For
the
appellant:
—The
agreement
states
that
“..
.the
husband
shall
pay
to
the
wife..
.’’.The
agreement
made
no
provision
for
lump
sum
payments
of
any
sort.
As
a
result,
any
lump
sum
payments
made
by
the
husband
clearly
fall
outside
the
scope
of
the
agreement
and
cannot
possibly
be
identified
as
being
on
account
of
amounts
payable
periodically.
We
have
taken
reference
to
the
Concise
Oxford
Dictionary
which
defines
indentify
as
“to
establish
identity
of”.
In
our
Notice
of
Objection
we
acknowledge
receipt
of
the
following
amounts:
|
February
|
$1,000
|
|
April
|
700
|
|
December
|
1,000
|
These
amounts
do
not
represent
payment
in
accordance
with
the
agreement
and
cannot
be
identified
as
being
on
account
of
amounts
payable
periodically.
For
example,
they
total
$2,700
and
this
figure
bears
no
identifiable
relationship
to
the
amount
due
in
the
taxation
year.
We
are
unable
to
identify
these
amounts
as
periodic
payments
and
suggest
that
they
are
simply
not
identifiable
as
such.
For
the
respondent:
—The
amount
of
$2,700
was
for
the
maintenance
of
the
appellant
and
the
children
of
the
marriage
pursuant
to
the
agreement.
Evidence
A
copy
of
the
agreement
was
entered
by
the
appellant
as
Exhibit
A-1.
Argument
Counsel
referred
the
Board
to
certain
case
law
which
appeared
pertinent
to
the
appeal.
The
Minister’s
basic
point
was
that
since
the
relevant
section
of
the
Act
uses
the
word
“payable”,
it
is
not
important
how
the
amount
was
“paid”.
Findings
The
relevant
section
of
the
Act
reads
as
follows:
56.
Amounts
to
be
included
in
income
for
year.
(1)
Without
restricting
the
generality
of
section
3,
there
shall
be
included
in
computing
the
income
of
a
taxpayer
for
a
taxation
year,
(b)
Alimony.—any
amount
received
by
the
taxpayer
in
the
year,
pursuant
to
a
decree,
order
or
judgment
of
a
competent
tribunal
or
pursuant
to
a
written
agreement,
as
alimony
or
other
allowance
payable
on
a
periodic
basis
for
the
maintenance
of
the
recipient
thereof,
children
of
the
marriage,
or
both
the
recipient
and
children
of
the
marriage,
if
the
recipient
was
living
apart
from,
and
was
separated
pursuant
to
a
divorce,
judicial
separation
or
written
separation
agreement
from,
the
spouse
or
former
spouse
required
to
make
the
payment
at
the
time
the
payment
was
received
and
throughout
the
remainder
of
the
year;
I
would
make
reference
to
the
case
of
Geoffrey
F
Brooks
v
MNR,
[1977]
CTC
2048;
77
DTC
38,
in
which
the
matter
of
“lump
sum
payments
for
alimony
or
maintenance”
was
touched
upon.
In
that
appeal,
the
Board’s
reference
period
antedated
the
relevant
agreement
itself,
and
therefore
the
Board
was
not
required
to
decide
whether
all
alimony
or
maintenance
payments
made
(or
received)
in
arrears,
ostensibly
with
reference
to
an
order
or
agreement,
fulfilled
the
relevant
provisions
of
the
Income
Tax
Act.
In
that
instant
matter,
it
is
my
view
that
the
receipts
in
question
as
income
are
not
caught
under
paragraph
56(1)(b)
of
the
Act
because
they
do
not
accord
with
a
vital
provision
of
that
section—they
were
not
received
pursuant
to
an
order
which
specifically
calls
for
monthly
payments
in
specified
amounts.
In
my
view,
the
term
“pursuant
to
an
order”
qualifies
the
word
“amount”,
and
I
do
not
consider
it
adequate
that
the
payer
imply
some
relationship
between
the
“amount”
and
the
“order”.
I
understand
“pursuant
to
an
order”
to
mean
“according
to
the
terms
of
an
order”,
not
simply
“as
a
result
of”,
“after
agreeing
to”,
or
some
other
less
specific
phrase.
The
Minister’s
argument
with
regard
to
the
“payable”
or
“paid”
point
might
have
some
merit
if
“payable”
qualified
the
earlier
noun
“amount”
in
that
section.
However,
in
my
view,
it
qualifies
the
noun
“allowance”.
Summary
In
my
view,
amounts
to
be
included
in
income
by
virtue
of
paragraph
56(1)(b)
of
the
Act
must
be
received
exactly
according
to
the
terms
in
the
relevant
order
or
agreement,
and
such
terms
must
include
details
of
the
regularized
pattern
of
payment
agreed
upon.
Decision
The
appeal
is
allowed
and
the
matter
referred
back
to
the
respondent
for
reconsideration
and
reassessment
accordingly.
Appeal
allowed.
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