A
W
Prociuk
(orally:
February
7,
1978):—This
is
an
appeal
by
Raza
Ullah
Makki
of
the
City
of
Toronto,
from
the
respondent’s
reassessment
of
his
income
for
the
taxation
year
1975,
wherein
the
respondent
disallowed
a
deduction
of
$1,494
which
the
appellant
forwarded
to
Pakistan
where
his
bed-ridden
sister-in-law
and
five
nephews
(the
children
of
the
sister-in-law
and
his
deceased
brother)
reside.
In
the
taxation
year
1975
the
appellant
being
employed
in
the
Toronto
area,
forwarded
a
sum
of
$646
to
his
infirm
sister-in-law
in
Pakistan
and
a
sum
of
$315
for
each
of
his
nephews,
that
is
the
children
of
his
deceased
brother
and
sister-in-law.
The
respondent,
in
assessing
his
income
tax
return
for
the
year,
allowed
the
deduction
of
the
said
$646
under
paragraph
109(1)(f)
of
the
Income
Tax
Act
but
in
so
far
as
the
nephews
are
concerned,
disallowed
the
amounts
as
deductions
pursuant
to
the
provisions
of
paragraph
109(1)(e)
of
the
Income
Tax
Act
which
reads
as
follows:
109.
(1)
For
the
purpose
of
computing
the
taxable
income
of
an
individual
for
a
taxation
year,
there
may
be
deducted
from
his
income
for
the
year
such
of
the
following
amounts
as
are
applicable:
(e)
for
each
niece
or
nephew
of
the
individual
or
his
spouse,
who,
during
the
year,
resided
in
Canada,
was
wholly
dependent
upon
the
individual
for
support
and
was
a
person
described
in
subparagraph
(d)(i),
(ii)
or
(iii),
if,
during
the
year,
(i)
the
mother
of
the
niece
or
nephew,
as
the
case
may
be,
was
living
apart
from,
and
was
separated
pursuant
to
a
divorce,
judicial
separation
or
written
separation
agreement
from
her
husband
or
former
husband
and
was
not
in
receipt
of
any
amount
as
alimony
or
other
allowance
payable
on
a
periodic
basis
for
the
maintenance
of
the
niece
or
nephew,
(ii)
the
father
of
the
niece
or
nephew,
as
the
case
may
be,
was
physically
or
mentally
infirm,
or
(iii)
the
father
of
the
niece
or
nephew,
as.
the
case
may
be,
was
deceased
and
the
mother
was
not
remarried,
an
amount
equal
to,
(iv)
if
the
niece
or
nephew
has
not
attained
the
age
of
16
years
before
the
end
of
the
year,
$300
less
/2
of
the
amount
if
any,
by
which
the
income
for
the
year
of
the
niece
or
nephew,
as
the
case
may
be,
exceeds
$1,000,
and
less
(v)
in
any
other
case,
$550
less
the
amount,
if
any,
by
which
the
income
for
the
year
of
the
niece
or
nephew,
as
the
case
may
be,
exceeds
$1,050.
(Italics
mine).
The
appellant’s
brother,
Mr.
Ikram
Makki.
appeared
on
behalf
of
the
appellant
as
did
the
appellant
himself,
and
pointed
out
the
inequity
of
the
Income
Tax
Act.
The
deduction
in
respect
of
the
sister-in-law
was
permitted,
yet
the
deductions
for
her
five
children,
who
are
dependent
on
the
appellant
for
their
livelihood
since
they
are
all.
of
tender
years
and
in
school,
were
disallowed.
The
Board
has
a
great
deal
of
sympathy
for
the
appellant
in
the
situation,
but
unfortunately
sympathy
alone
does
not
assist
him
in
any
way.
The
Board
pointed
out
to
the
appellant
and
his
brother
that
the
only
way
that
this
situation
can
be
rectified
is
by
enacting
the
necessary
amendments
to
the
Income
Tax
Act,
and
Parliament
is
the
only
body
that
is
capable
of
so
doing.
The
said
nephews
are
not
resident
in
Canada.
Section
109(1)(e)
clearly
stipulates
that
they
must
be
Canadian
residents.
Hence
the
respondent
and
his
officers,
servants
of
the
Department,
in
reviewing
the
appellant’s
return,
had
no
option
but
to
disallow
the
amounts
claimed
pursuant
to
the
said
section.
The
section
applies
to
everybody
in
that
category;
and,
there
is
no
discretionary
power
left
with
the
Minister,
nor
is
there
any
discretionary
power
left
with
this
Board
to
implement
exceptions.
As
I
stated,
the
only
remedy
which
would
be
of
some
material
assistance
to
the
appellant
would
be
a
proper
amendment
to
the
Income
Tax
Act.
Otherwise,
the
appellant
is
without
remedy.
It
is
of
course
to
his
credit
that
he
has
undertaken
this
financial
hardship
to
see
that
his
brother’s
children,
at
least
in
part,
obtain
some
assistance.
They
have
no
other
source
of
income
in
Pakistan
as
we
are
informed
by
the
appellant
and
which
I
accept
to
be
the
case.
In
view
of
the
express
provisions
of
the
Income
Tax
Act,
the
Board
has
no
alternative
but
to
dismiss.-the
appeal.
Appeal
dismissed.
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