Ashley Kamaludeen v. Her Majesty the Queen, [1996] 3 CTC 2092

Watson J.T.C.C.: — This appeal was heard in Toronto, Ontario, on March 6, 1996 and concerns two issues: is the Appellant entitled to deduct child care expenses in excess of the amounts allowed by the Minister of National Revenue (the “Minister”) in the 1990 and 1991 taxation years and is the Appellant entitled to claim a non-refundable tax credit in respect of an equivalent to married amount in the 1990 taxation year.

For the 1990 taxation year, the Appellant received a Notice of Assessment dated November 8, 1991 that allowed the child care expenses, non-refundable tax credits with respect to a married amount the equivalent to married amount and an amount for dependent children of $399.

The Minister issued reassessments of 1990 as follows: July 28, 1992, disallowed non-refundable tax credits for married amount; October 19, 1992, disallowed non-refundable tax credits for dependent children; and July 18, 1994, disallowed non-refundable tax credits for equivalent to married status, disallowed child care expenses and allowed non- refundable tax credit for dependent children in the amount of $399.

For the 1991 taxation year, the Appellant received a Notice of Assessment that allowed her to deduct $1,624 for child care expenses, non-refundable tax credits with respect to an equivalent to married amount, education amount and dependent children.

The Minister issued reassessments for 1991 as follows: October 19, 1992, disallowed non-refundable tax credits for education and dependent children; July 18, 1994 disallowed child care expenses, disallowed non- refundable tax credits for equivalent to married and allowed non- refundable tax credits for dependent children for $406; and May 18, 1995, allowed non-refundable tax credits for equivalent to married.

In reassessing the Appellant as set out above, the Minister relied on the following assumptions of fact:

(a) the facts hereinbefore admitted and stated;

(b) at all material times, the Appellant was employed as an accountant;

CHILD CARE EXPENSES

(c) in her return of income for the 1990 taxation year, the Appellant reported child care expenses in the amount of $5,200.00 paid to Seeta;

(d) in her return of income for the 1991 taxation year, the Appellant reported child care expenses in the amounts of $410.00 paid to Tic Toe Day Care and $4,800 paid to Maria Nunes;

(e) the dependent was the child of or was the dependent for support on the Appellant or the Appellant’s spouse throughout the 1990 and 1991 taxation years;

(f) the Appellant’s income for the 1990 and 1991 taxation years was higher than that of her spouse for those years;

(g) during the 1990 taxation year and up to June 7, 1991, the Appellant’s spouse was not:

(i) in full-time attendance at a designated educational institution;

(ii) certified by a medical doctor to be a person who by reason of mental or physical infirmity and confinement throughout a period of not less than 2 weeks in the year to bed or to a wheelchair or as a patient in a hospital, an asylum or other similar institution, was incapable of caring for children;

(iii) a person confined to a prison or similar institution throughout a period of not less than 2 weeks in the year;

(iv) a person who, by reason of a breakdown of the marriage, living separate and apart from the Appellant;

(h) the Appellant failed to substantiate her payments for the child care services in the 1990 and 1991 taxation years;

(i) the Appellant did not incur the expenses referred in subparagraphs (c) and (d) above;

Equivalent-to-married amount

(j) in the 1990 taxation year, the Appellant claimed a married amount in respect of her spouse and claimed an equivalent to married amount in respect of her mother;

(k) during the 1990 taxation year, the Appellant, her spouse and her child resided at Suite 401, 160 Dowling Avenue, Toronto, Ontario;

(l) during the 1990 taxation year, the Appellant did not maintain a self- contained domestic establishment;

(m) during the 1990 taxation year, the Appellant did not support the child in that establishment;

(n) the Appellant was married at the end of the 1990 taxation year; and

(o) the Appellant’s spouse was not, by reason of a breakdown of the marriage, living separate and apart from the Appellant in the 1990 taxation year.

The Appellant has the onus of establishing on a balance of probabilities that the Minister’s reassessments were ill-founded in fact and in law. Considering all of the circumstances of this case, including the testimony at the hearing, the documentary evidence and admissions in the light of the well-established case law dealing with the applicable sections of the Income Tax Act, I am satisfied that the Appellant has failed in this onus.

The Appellant’s testimony was often vague, contradictory and by and large not reliable or worthy of belief. The value of the receipts provided by the Appellant was minimal in the light of her explanations concerning the persons who had supposedly looked after her child in 1990 and 1991 and their unwillingness to give the Appellant valid receipts for the payments that the Appellant claims to have made at that time. The evidence offered concerning her troubled relationship with her former husband was equally unreliable. It seems strange that her marriage break-up was due to assaults on her person and her fear of his kidnapping the child and yet she allows him to continue to use her residence as his mailing address.

Having failed in her onus of establishing on a balance of probabilities that the Minister’s reassessments, for 1990 and 1991 taxation years were ill-founded, the appeal is accordingly dismissed.

Appeal dismissed.