Awuah v. R., [1998] 3 CTC 2592

O’Connor T.C.J.:

These four appeals were heard on common-evidence at Toronto, Ontario on May 21, 1998.

Issues

The issues are:

1. Whether in the years 1992 through 1994 Doris Awuah was entitled to tax credits for equivalent to spouse amounts in respect of her child, Yaa Awuah, born in 1992.

2. Whether Doris Awuah in the 1993 and 1994 years was entitled to tax credits for additional personal amounts of $1,583 in each of those years in respect of her mother.

3. Whether Doris Awuah in the 1995 year was entitled to a deduction of $6,000 as child care expenses.

4. Whether Kingsley Awuah in the years 1992 through 1995 was entitled to tax credits for equivalent to spouse amounts in respect of his brother Kofi Awuah, aged about 12 in 1992.

5. Whether Kingsley Awuah in the 1993 year was entitled to a tax credit of $2,992 for tuition fees and education amount transferred from a child in respect of his brother, Otchere B.K. Awuah aged about 24 in 1992.

6. Whether Kingsley Awuah in the 1992 and 1993 years was entitled to deductions of $2,000 and $2,105 as child care expenses in respect of his brother Kofi Awuah.

The basic facts are as follows. The Appellants married in the seventies. They are the parents of one child born in 1992 and another in 1994. They also cared for Kingsley Awuah’s brother Kofi. Prior to 1992 they lived together in rented premises. In 1992 they purchased 58 McCallum Court, Brampton and continued to live together in that home. They signed a Separation Agreement on January 12, 1993 which states they had lived separated and apart continuously since October 15, 1992. They assert they were separated but stayed together for the children and to try and save the marriage.

The following are taken from the Replies to the Notices of Appeal:

97-2055(IT)I: Re: Doris Awuah

6. In so assessing and reassessing the Appellant, the Minister made the following assumptions of fact:

Equivalent-to-spouse Amount:

(i) in the 1992, 1993 and 1994 taxation years, the Appellant made a claim for equivalent-to-spouse amounts in respect of her child, Yaa Awuah;

(ii) in the 1992, 1993 and 1994 taxation years, the Appellant was a married person;

(iii) in the 1992, 1993 and 1994 taxation years, the Appellant lived with [her] spouse;

(iv) the Appellant’s spouse was not living separate and apart from the Appellant at the end of the 1992, 1993 and 1994 taxation years.

Additional Personal Amount:

(v) in the 1993 and 1994 taxation years, the Appellant made a claim for additional personal amounts in respect of her mother, Ama Amawkwah;

(vi) at no time in the 1993 and 1994 taxation year was the Appellant’s mother dependent on the Appellant for support because of mental or physical infirmity.

97-2489(IT)I: Re: Doris Awuah - 1995

6. In so reassessing the Appellant, the Minister made the following assumptions of fact:

(a) the appellant has not proven the payments as or on account of child care expenses by filing with the Minister one or more receipts each of which was issued by the payee and contains, where the payee is an individual, that individual’s Social Insurance Number;

(b) for the 1995 taxation year, the appellant reported income in the amount of $26,853 and her spouse reported income in the amount of $20,175;

and

(c) the Appellant was not living separate and apart from her spouse at the end of the 1995 taxation year.

97-2051(IT)I: Re Kingsley Awuah

8. In so assessing and reassessing the Appellant, the Minister made the following assumptions of fact:

Equivalent-to-spouse Amount;

(a) in the 1992, 1993 and 1994 taxation years, the Appellant made a claim for equivalent-to-spouse amounts in respect of his brother, Kofi Awuah;

(b) in the 1992, 1993 and 1994 taxation years, the Appellant was a married person;

(c) in the 1992, 1993 and 1994 taxation years, the Appellant lived with his spouse;

(d) the Appellant’s spouse was not living separate and apart from the Appellant at the end of the 1992, 1993 and 1994 taxation years;

Tuition Fees & Education Amount Transferred from a Child:

(e) in the 1993 taxation year, the Appellant made a claim for tuition fees and education amount transferred from a child in respect of his brother, Ochere B.K. Awuah in the amount of $2,992.00;

(f) in the 1993 taxation year, the Appellant was not the parent or grandparent of Otchere B.K. Awuah;

Child Care Expenses:

(g) in the 1992 and 1993 taxation years, the Appellant made a claim for child care expenses in respect of his brother, Kofi Awuah;

(h) at all relevant times, the Appellant did not incur child care expenses for the purposes of providing child care services for an eligible child of the Appellant; and

(i) the appellant has not proven the purported child care expenses by filing with the Minister one or more receipts each of which was issued by the payee and containing the payee’s social insurance number.

97-2488(IT)I - Re Kinglsey Awuah - 1995

5. In so reassessing the Appellant, the Minister made the following assumptions of fact:

Equivalent-to-spouse Amount:

(a) in the 1995 taxation year, the Appellant made a claim for equivalent-to- spouse amounts in respect of his brother, Kofi Awuah;

(b) in the 1995 taxation year, the Appellant was a married person;

(c) in the 1995 taxation year, the Appellant lived with his spouse;

(d) the Appellant’s spouse was not living separate and apart form the Appellant at the end of the 1995 taxation year.

Analysis

All references below are to provisions of the Income Tax Act.

Paragraph 118(1)(Z>) provides a credit for an “equivalent-to-married” amount. To be entitled a married individual must meet various conditions, one of which is that the married individual can neither have supported nor lived with his or her spouse nor can the individual have been supported by his or her spouse (118(l)(fe)(i)).

Paragraph 118(1 )(d) provides for a credit for an individual in respect of certain dependants over age 18, such as a mother. One condition is that the dependant must be dependant on the individual by reason of mental or physical infirmity.

Section 63 provides for the deduction of child care expenses for services in respect of an eligible child of the taxpayer incurred in order to permit the taxpayer to pursue employment, etc. In the case of two supporting taxpayers, the deduction must generally be taken by the taxpayer with the lower income. One condition is that the payment for the services must be proven by filing with the Minister of National Revenue receipts and when the payee is an individual, that individual’s Social Insurance Number.

Section 118.5 provides a credit for tuition fees and section 118.9 provides for the transfer of that credit to the student’s parent or grandparent. Subsection 252(1) expands the meaning of “child” and inferentially the meaning of “parent”. For example, a child can be any person, such as a brother, who is wholly dependant on the taxpayer for support and of whom the taxpayer has custody and control.

Decision

It remains to apply the above provisions to the facts in these appeals.

With respect to the equivalent to spouse tax credit, the Appellants are not entitled to it in any year in which it was denied by the Minister because at all relevant times they were married and were not living separate and apart. The Separation Agreement was not followed. If anything clearly demonstrates they were not separate and apart, it was the birth of their second child in 1994.

As to the child care expenses, none are allowed because the Appellants did not provide receipts or the social insurance numbers of the care-givers.

As to the additional amounts in 1993 and 1994 for Doris Awuah, since her mother was not dependant upon Doris Awuah because of mental or physical infirmity, the additional amounts were properly disallowed.

As to tuition fees and education amount of Kingsley Awuah in 1993, as Kingsley Awuah was not the parent of his brother, even considering the extended meaning of “child” in subsection 252(1) (the taxpayer did not have custody and control), the claim was properly disallowed.

Consequently the appeals are dismissed.

Appeal dismissed.