Pourzynal v. R., [1997] 3 C.T.C. 2100

St. Onge T.C.J.:

1 The appeal of Mehernush Pourzynal was heard on the 5th of May, 1997, in the City of Ottawa, Province of Ontario. And the issue is whether the appellant is entitled to claim certain amounts as an equivalent to married amounts in her 1990 and 1991 taxation years under paragraph 118(1)(b) of the Act.

• 2. In computing her non-refundable tax credits for the 1988 taxation year the appellant claimed an amount for other dependents resident in Canada of $1,471.00.

• 3. In computing her non-refundable tax credits for the 1990 and 1991 taxation years the appellant claimed amounts of $5,141.00 and $5,233.00 respectively as an equivalent to married amounts.

• 4. The appellant was assessed for the 1988, 1990 and 1991 taxation years on April 25, 1989, June 26, 1991 and June 29, 1992 respectively.

• 5. By Notices of Reassessment dated January 22, 1993 the Minister of National Revenue (the “Minister”) disallowed the amount for other dependents resident in Canada in the 1988 taxation year and the equivalent to married amounts in the 1990 and 1991 taxation years.

• 6. In so assessing the appellant, the Minister made the following assumptions of fact:

  • (a) the appellant was divorced from her exhusband prior to the 1990 taxation year;

  • (b) each year the ex-husband's mother (the“mother-in-law”) would visit the appellant and her children;

  • (c) the mother-in-law is a resident of Iran;

  • (d) the mother-in-law is not related to the appellant;

  • (e) the mother-in-law is not dependent on the appellant by reason of mental or physical infirmity;

  • (f) the appellant is not entitled to deduct any amount from tax payable for an equivalent to married amount in the 1990 and 1991 taxation years.

• 7. The Minister now concedes that, with respect to the reassessment of the 1988 taxation year, the Minister erred in reassessing the appellant as the taxation year was statute barred at the time of reassessment.

• 8. The issue is whether the Minister properly disallowed the amounts of $5,141.00 and $5,233.00 as an equivalent to married tax credits in the 1990 and 1991 taxation years.

3 At the hearing, the appellant admits paragraph 2 to paragraph 6, exclusively, paragraph 7 and sub-paragraph 6(a) to 6(c), and denies all the other sub-paragraphs.

4 In that respect, she explained that her ex-mother-in-law was her aunt and was also a dependent by reason of infirmity because she was 81 years old.

5 Heard as a witness, she testified that she was a full-time hairdresser and the mother of three kids. In 1990 and 1991 her ex-mother-in-law spent more than seven to eight months in each year at her home, but each year she went back to her own home in Iran. She also stayed with other relatives in addition to the appellant and the latter has no legal liability to maintain her. The mother-in-law died in her country at the age of 83 years old.

6 Counsel for respondent argued that to meet the provisions s. 248, 251(2), 251(6) and paragraph 118(1)(b) and 118(1)(d) of the Act, the appellant had to prove that her ex-mother-in-law was resident of Canada, that she was wholly supported by the appellant and was related to her by blood, marriage or adoption.

7 According to the evidence, the appellant was divorced when she received a visit of her ex-mother-in-law in 1990 and 1991. Her ex-mother-in-law was not a resident of Canada and was not related to the appellant by blood, marriage or adoption, and was neither wholly supported by the appellant.

8 It is also well know that the old age in itself is not an infirmity and it is in evidence that the appellant has no liability toward her ex-mother-in-law.

9 Consequently, the appeal is allowed with respect to 1988, but dismissed with respect to 1990/1991 taxation years.