Boakye v. R., [1998] 4 CTC 2755

Christie A.C.J.T.C.:

These appeals are governed by the Informal Procedure prescribed under section 18 and following sections of the Tax Court of Canada Act. The years under review are 1991 to 1995 inclusive.

The Notice of Appeal reads:

Ref: Notice of Appeal to Minister’s Decision of Income Tax Re-Assessment for 1991, 92, 93, 94 and 1995

This notice of Appeal is under the Informal Procedure.

I am filing this appeal to object the Minister’s decision for denying my claim for EQUIVALENT-TO-SPOUSE for the period above, all under the dependant Frank Boakye, my elder son.

Having separated from my former wife, Hanna, since 1991, I have been responsible for the upkeep of my elder son Frank Boakye who is a student.

The separation agreement which is still enforced is as attached. Anyway, the Child Tax Benefit for the two children is received by Hanna and it is wisely and understandingly used for any child who needs to.

Hope the Court will consider this explanation and render my Claim Valid.

The opening paragraph and paragraphs numbered 1 to 8 inclusive of the Reply to the Notice of Appeal read:

In reply to the Notice of Appeal for the 1991, 1992, 1993, 1994 and 1995 taxation years, the Deputy Attorney General of Canada says:

A. Statement of Facts

1 With respect to the second unnumbered paragraph of the Notice of Appeal, he admits only that the Appellant was separated since 1991, and otherwise denies the facts alleged in this paragraph.

2 With respect to the third unnumbered paragraph of the Notice of Appeal, he admits only that the Appellant’s spouse received Child Tax Benefits, such otherwise denies the facts alleged in this paragraph and states that no separation agreement was attached to the Notice of Appeal which was served on the Respondent.

3 He denies all other allegations of fact stated in the Appellant’s Notice of Appeal.

4 In computing taxes payable for the 1991, 1992, 1993, 1994 and 1995 taxation years, the Appellant claimed non-refundable tax credits in respect of equivalent- to-spouse amount in the amounts of $5,233.00, $5,380.00, $5,380.00, $5,380.00 and $5,380.00, respectively.

5 The Minister of National Revenue (the ‘Minister’) assessed the Appellant for the 1991, 1992, 1993, 1994 and 1995 taxation years. Notices of Assessment thereof mailed on July 7, 1992, June 16, 1993, April 6, 1994, April 3, 1995 and June 13, 1996, respectively.

6 In reassessing the Appellant for the 1991, 1992, 1993, 1994 and 1995 taxation years, by concurrent Notices of Reassessment mailed on April 10, 1996 for the 1991, 1992 and 1993 taxation years and May 8, 1997 for the 1994 and 1995 taxation years, the Minister disallowed the equivalent-to-spouse amounts.

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

Equivalent-to-spouse Amount:

(a) at all relevant times, the Appellant claimed the equivalent-to-spouse amount with respect to his son, Frank Boakye;

(b) in the 1991, 1992, 1993, 1994 and 1995 taxation years, the Appellant has not lived with his spouse since March 6, 1991;

(c) in the 1991, 1992, 1993, 1994 and 1995 taxation years, Appellant’s two children lived with Appellant’s spouse;

(d) at all relevant times, the Appellant’s spouse was the custodial parent of the two children;

(e) in the 1991, 1992, 1993, 1994 and 1995 taxation years, the Appellant’s spouse claimed Child Tax Benefits for the two children;

(f) in the 1991, 1992, 1993, 1994 and 1995 taxation years, the Appellant did not maintain a self-contained domestic establishment in which he actually supported a person who was wholly dependent for support on the Appellant.

B. Issues to be Decided

8 The issue is whether the Appellant is entitled to claim the equivalent-to-spouse amount in the 1991, 1992, 1993, 1994 and 1995 taxation years in the calculation for non-refundable tax credits.

In Youngman v. R. (1990), 90 D.T.C. 6322 (Fed. C.A.) Pratt J.A., speaking for the Federal Court of Appeal, said at page 6325:

I will deal first with the question of onus of proof. The rule is well known. When the Minister has, in his pleadings, disclosed the assumptions of facts on which the assessment was made, and when, as is the case here, it is not contested that the assessment was in fact based on those assumptions, the taxpayer has the onus of disproving the Minister’s assumptions.

There was no contestation of the kind just referred to. Further, the skeletal evidence adduced by the appellant fails to discharge the onus on him to disprove the assumptions made by the Minister of National Revenue in reassessing the appellant’s liability to tax. The appellant placed as much emphasis on his inability to cope financially with the result of the reassessments as he did on anything else.

The appeals are dismissed.

Appeal dismissed.