Search - considered

ANALYSIS AND DECISION   [9]               According to Counsel for the Respondent, the relevant provisions of the Act are subsections 122.62(1) and 122.62(2):     Eligible Individuals 122.62 (1) For the purposes of this subdivision, a person may be considered to be an eligible individual in respect of a particular qualified dependent at the beginning of a month only if the person has, no later than 11 months after the end of the month, filed with the Minister a notice in prescribed form containing prescribed information. ...   [14]          In Nicholls v Canada (Revenue Agency), 2010 FC 1235, Justice Russell of the Federal Court said at paragraph [1]:       APPLICATION   [1]                This is an application for judicial review of a decision by the Canada Revenue Agency (CRA) dated March 9, 2009 (Decision) not to extend the time limit within which the Applicant could file notice under subsection 122.62(2) of the Income Tax Act (Act) to be considered as an eligible individual to receive the Canada Child Tax Benefit (CCTB) for certain months during which CRA was statute-barred from recovering CCTB benefits already paid to the Applicant’s estranged wife for their children, Charles and Penny, during the same period. ... That is a decision which is within the discretion of the Minister and the Minister’s discretion cannot be reviewed, considered or reversed by the Tax Court of Canada ...

(j.1)     Transfer of retiring allowances [to RRSP] – such part of the total of all amounts each of which is an amount paid to the taxpayer by an employer, or under a retirement compensation arrangement to which the employer has contributed, as a retiring allowance and included in computing the taxpayer’s income for the year by virtue of subparagraph 56(1)(a)(ii) or paragraph 56(1)(x) as   (i)                   is designated by the taxpayer in the taxpayer’s return of income under this Part for the year,   (ii)                 does not exceed the amount, if any, by which the total of   (A)    $2,000 multiplied by the number of years before 1996 during which the employee or former employee in respect of whom the payment was made (in this paragraph referred to as the "retiree") was employed by the employer or a person related to the employer, and   (B)     $1,500 multiplied by the number by which the number of years before 1989 described in clause (A) exceeds the number that can reasonably be regarded as the equivalent number of years before 1989 in respect of which employer contributions under either a pension plan or a deferred profit sharing plan of the employer or a person related to the employer had vested in the retiree at the time of the payment   exceeds the total of   (C)    all amounts deducted under this paragraph in respect of amounts paid before the year in respect of the retiree   (I)      by the employer or a person related to the employer, or   (II) under a retirement compensation arrangement to which the employer or a person related to the employer has contributed,   (C.1) all other amounts deducted under this paragraph for the year in respect of amounts paid in the year in respect of the retiree   (I)      by a person related to the employer, or   (II) under a retirement compensation arrangement to which a person related to the employer has contributed, and     (D)    all amounts deducted under paragraph (t) in computing the retiree’s income for the year in respect of a retirement compensation arrangement to which the employer or a person related to the employer has contributed, and   (iii)                does not exceed the total of all amounts each of which is an amount paid by the taxpayer in the year or within 60 days after the end of the year in respect of the amount so designated   (A)    as a contribution to or under a registered pension plan, other than the portion thereof deductible under paragraph (j) or 8(1)(m) in computing the taxpayer’s income for the year, or   (B)     as a premium (within the meaning assigned by section 146) under a registered retirement savings plan under which the taxpayer is the annuitant (within the meaning assigned by section 146), other than the portion thereof that has been designated for the purposes of paragraph (j) or (l),   to the extent that it was not deducted in computing the taxpayer’s income for a preceding taxation year   and for the purposes of this paragraph, "person related to the employer" includes   (iv)               any person whose business was acquired or continued by the employer, and   (v)                 a previous employer or the retiree whose service therewith is recognized in determining the retiree’s pension benefits;  ...   146(5) Amount of RRSP premiums deductible – There may be deducted in computing a taxpayer’s income for a taxation year such amount as the taxpayer claims not exceeding the lesser of   (a)    the amount, if any, by which the total of all amounts each of which is a premium paid by the taxpayer after 1990 and on or before the day that is 60 days after the end of the year under a registered retirement savings plan under which the taxpayer was the annuitant at the time the premium was paid, other than the portion, if any, of the premium   (i)                   that was deducted in computing the taxpayer’s income for a preceding taxation year,   (ii)                 that was designated for any taxation year for the purposes of paragraph 60(j), (j.1) or (l),   (iii)                in respect of which the taxpayer received a payment that was deducted under subsection (8.2) in computing the taxpayer’s income for a preceding taxation year,   (iv)               that was deductible under subsection (6.1) in computing the taxpayer’s income for any taxation year, or   (iv.1)   that would be considered to be withdrawn by the taxpayer as an eligible amount (as defined in subsection 146.01(1) or 146.02(1)) less than 90 days after it was paid, if earnings in respect of a registered retirement savings plan were considered to be withdrawn before premiums paid under that plan and premiums were considered to be withdrawn in the order in which they were paid                           exceeds   (v)                 the amount, if any, by which   (A)         the total of all amounts deducted under subsection 147.3(13.1) in computing the taxpayer’s income for the year or a preceding taxation year   exceeds   (B)         the total of all amounts, in respect of transfers occurring before 1991 from registered pension plans, deemed by paragraph 147.3(10)(b) or (c) to be a premium paid by the taxpayer to a registered retirement savings plan, and   (b)    the taxpayer’s RRSP deduction limit for the year ...

However, when I consider all of the evidence presented in this appeal and the assumptions made by the Minister, which were not rebutted by the Appellant, I have concluded that a contract of service did not exist between the Appellant and the Company. [14]          I have not considered whether the relationship between the Appellant and the Company was a sham as it was not assumed by the Minister. ... The Appellant was the directing mind of the Company. [16]          I have also considered the fact that the Appellant’s spouse and brother, who owned 39% and 22% of the Company’s shares, respectively, did not testify. ... However, he dismissed the appeal because he found that the Appellant and the Company did not operate at arm’s length. [22]          When I considered all of the evidence that was presented at the hearing of the present appeal, I have concluded that the Appellant was not employed by the Company, during the period, pursuant to a contract of services. ...

  [12]     In summing up his argument, the Appellant stressed as a main point that his control and supervision of tutors and direct dealing with parents was a cultural requirement that had to be considered in a different light than it might be considered in other contexts. ...   [19]     Another factor considered in the Wiebe Door tests is the chance of profit and risk of loss ...

The Appellant’s requests for an adjournment were considered by other Judges of this Court and were denied. No additional information has been provided that would not have been considered when his requests for an adjournment were addressed. If the matter is scheduled for a later date he would effectively be granted the adjournment that has already been considered and denied, without any additional information or explanation from the Appellant. ...

In determining the Appellant’s tax liability for the 2004 and 2005 taxation years, the Minister made the following assumptions of fact:   (a)                 the employer provided free parking to the Appellant, which the Appellant made use of, while he was working at the employer’s place of business, in each of the 2004 and 2005 taxation years;   (b)                the Appellant was a car salesman working out of a dealership that was next door to where the dealership leased the parking spots at issue;   (c)                 the parking was not considered to be “scramble” parking and the number of leased parking spaces available, accommodated most, if not all, of the employees, who were assigned, and specifically designated, the use of them;   (d)                the Appellant had the use of a motor vehicle throughout the 2004 and 2005 taxation years;   (e)                 the Appellant occasionally commuted to work by public transit or by other means;   (f)                  the Appellant did not regularly use a motor vehicle in the performance of his duties;   (g)                 the direct cost to the employer of one leased parking space was $95 per month plus PST of $7.60 and GST of $6.65, a total of $109.25 per month;   (h)                 the Appellant’s parking benefits were computed as follows: 2004 $109.25 x 11 months = $1,201.75 2005 $109.25 x 12 months = $1,311   [9]      The Appellant had the onus of rebutting the assumed facts with which he disagreed. ...   [11]     As for his employer, I do not believe that Adelaide Motors ever considered the question of parking, either as a business deduction, a taxable benefit to its employees, or in any other respect, until the Minister’s intervention during its payroll audit. ... As for her suggestion that while there were no assigned spaces, the Appellant was guaranteed a spot because his shift started earlier than those of other employees, that, in itself, does not suffice to convert “scramble parking” into the sort of assigned parking considered in decisions like Adler v. ...

This very issue was considered and rejected by C. Miller J. in Barnett v. ...   [10]          However, one of the enumerated factors to be considered in determining which parent primarily fulfills the responsibility for the child’s care and upbringing is “the existence of a court order in respect of the [child] that is valid in the jurisdiction in which the [child] resides”. ... Factors — For the purposes of paragraph (h) of the definition “eligible individual” in section 122.6 of the Act, the following factors are to be considered in determining what constitutes care and upbringing of a qualified dependant:   (a) the supervision of the daily activities and needs of the qualified dependant;   (b) the maintenance of a secure environment in which the qualified dependant resides;   (c) the arrangement of, and transportation to, medical care at regular intervals and as required for the qualified dependant;   (d) the arrangement of, participation in, and transportation to, educational, recreational, athletic or similar activities in respect of the qualified dependant;   (e) the attendance to the needs of the qualified dependant when the qualified dependant is ill or otherwise in need of the attendance of another person;   (f) the attendance to the hygienic needs of the qualified dependant on a regular basis;   (g) the provision, generally, of guidance and companionship to the qualified dependant; and   (h) the existence of a court order in respect of the qualified dependant that is valid in the jurisdiction in which the qualified dependant resides.     ...

The fact that the Appellant submitted invoices for the work he performed for the Payer constitutes another element confirming that the Appellant considered himself as acting as an independent contractor ... Yetman both considered themselves as being independent contractors.   [22]          Furthermore, for the period from January 1, 2006 to June 1, 2007, the Appellant cannot be considered to have been an employee of the Payer because the Payer was inactive until June 1, 2007, the date on which the Appellant began providing services to the Payer ...

An eligible individual is defined accordingly in section 122.6:   122.6   "eligible individual" in respect of a qualified dependant at any time means a person who at that time   (a)        resides with the qualified dependant,   (b)        is the parent of the qualified dependant who primarily fulfils the responsibility for the care and upbringing of the qualified dependant,   (c)        is resident in Canada or, where the person is the cohabiting spouse or common-law partner of a person who is deemed under subsection 250(1) to be resident in Canada throughout the taxation year that includes that time, was resident in Canada in any preceding taxation year,   (d)        is not described in paragraph 149(1)(a) or 149(1)(b), and   (e)        is, or whose cohabiting spouse or common-law partner is, a Canadian citizen or a person who   (i)         is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act,   (ii)        is a temporary resident within the meaning of the Immigration and Refugee Protection Act, who was resident in Canada throughout the 18 month period preceding that time, or   (iii)       is a protected person within the meaning of the Immigration and Refugee Protection Act,   (iv)       was determined before that time to be a member of a class defined in the Humanitarian Designated Classes Regulations made under the Immigration Act,   and for the purpose of this definition,   (f)        where the qualified dependant resides with the dependant's female parent, the parent who primarily fulfils the responsibility for the care and upbringing of the qualified dependant is presumed to be the female parent,   (g)        the presumption referred to in paragraph (f) does not apply in prescribed circumstances, and   (h)        prescribed factors shall be considered in determining what constitutes care and upbringing;   252(1) In this Act, words referring to a child of a taxpayer include              ...   ... For the purposes of paragraph (h) of the definition "eligible individual" in section 122.6 of the Act, the following factors are to be considered in determining what constitutes care and upbringing of a qualified dependant:   (a)        the supervision of the daily activities and needs of the qualified dependant;   (b)        the maintenance of a secure environment in which the qualified dependant resides;   (c)        the arrangement of, and transportation to, medical care at regular intervals and as required for the qualified dependant;   (d)        the arrangement of, participation in, and transportation to, educational, recreational, athletic or similar activities in respect of the qualified dependant;   (e)        the attendance to the needs of the qualified dependant when the qualified dependant is ill or otherwise in need of the attendance of another person;   (f)        the attendance to the hygienic needs of the qualified dependant on a regular basis;   (g)        the provision, generally, of guidance and companionship to the qualified dependant; and   (h)        the existence of a court order in respect of the qualified dependant that is valid in the jurisdiction in which the qualified dependant resides ... Canada, [2005] A.C.I. no. 538 (QL), the Court defined the notion of "reside with the qualified dependent" as follows:   All things considered, residence implies a certain constancy, a certain regularity or else a certain permanence according to a person's usual lifestyle in relation to a given place and is to be distinguished from what might be called visits or stays for specific purposes or of a sporadic nature. ...

Thus, where the nature of a taxpayer’s venture contains elements which suggest that it could be considered a hobby or other personal pursuit, but the venture is undertaken in a sufficiently commercial manner, the venture will be considered a source of income for the purposes of the Act. 53                We emphasize that this “pursuit of profit” source test will only require analysis in situations where there is some personal or hobby element to the activity in question.  ... We would also emphasize that although the reasonable expectation of profit is a factor to be considered at this stage, it is not the only factor, nor is it conclusive.  ...