97-3369(IT)I
BETWEEN:
AGYEMANG BOACHIE-YIADOM,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on October 9, 1998 at Toronto, Ontario by
the Honourable Judge C.H. McArthur
Appearances
Agent for the Appellant: W. Ankomah
Counsel for the Respondent: C. Mohr
JUDGMENT
The appeal from the assessments made under the Income Tax Act for the 1994 and 1995 taxation years is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 16th day of October 1998.
|
"C.H. McArthur" |
J.T.C.C.
Date: 19981016
Docket: 97-3369(IT)I
BETWEEN:
AGYEMANG BOACHIE-YIADOM,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
McArthur, J.T.C.C.
[1] The Minister of National Revenue (the "Minister") disallowed the Appellant's claim for the 1994 and 1995 taxation years for a deduction of $8,000 and $7,200 as alimony or maintenance and child support with respect to his estranged spouse Barbara Boachie-Yiadom and the sum of $5,380 for the same years in respect of his child Christel born from another union.
[2] Dealing firstly with claim number 1:
- The Appellant and Barbara were married in March 1987 and have been living separate and apart since November 1992. They are the biological parents of the following children: Stephanie Boachie-Yiadom born August 13, 1991 and Stacey Boachie-Yiadom born October 25, 1992.
[3] After the Minister's reassessment they had a separation agreement prepared reflecting the following:
- The husband shall pay to the wife the sum of $300.00 per month per child (total $600.00 per month) for the support of the children Stephanie and Stacey Boachie-Yiadom.
- The support payments shall commence on December 1, 1993 and thereafter payments shall be due on the first day of every month.
- The husband and wife acknowledge that they have both read this Separation Agreement and fully understand the terms therein.
- The husband and wife acknowledge that this Agreement is prepared by the solicitor for the wife and the said solicitor is witnessing the signature of the wife alone.
[4] The Appellant had Barbara execute a single receipt for the total payments of $7,200 in 1994 and $7,200 in 1995. The Appellant claims to have purchased $800 in clothing in 1994 or 1995, making the payment for one of those years $8000.
[5] The Appellant's 1994 income tax return filed by the Respondent does not reflect a deduction of $8,000. It is surmised that this claim by the Appellant was made at a later date. On page 1 of his 1994 return the Appellant indicates, in answer to the box that applies to your marital status, on December 31, 1994, "Married" in 1995 his form indicates "Separated".
Position of the Respondent
[6] The amount deducted by the Appellant in the 1994 and 1995 taxation years on account of alimony were not paid by the Appellant, or if paid, were not paid for the maintenance of the recipient, children of the marriage or both the recipient and the children of the marriage.
[7] The Appellant claimed he did not live with Barbara since November 1992, yet he then admits he did live with her for a period in 1994 and a third child was conceived during that period. His claim for an additional amount in 1994 was without foundation. There is no evidence that he lived separate from Barbara. In effect, the Respondent does not believe the Appellant.
Position of the Appellant
[8] The Appellant submits he was separated from his wife Barbara and he supported her and their two children: $8,000 in 1994 and $7,200 in 1995.
Analysis
[9] The Appellant did not claim a deduction for alimony or maintenance in his 1994 return. This claim was apparently made at a later date. The evidence was unclear in this regard. The Appellant did claim a deduction for alimony or maintenance in his 1995 T1 return.
[10] The separation agreement and receipt were prepared after Revenue Canada commenced their audit. A child was born to Barbara and the Appellant in 1995, although the separation agreement states that "(c) they have been living separate and apart since November 14, 1992 and there is no reasonable prospect of reconciliation".
[11] The Appellant stated that there was an attempt made at reconciliation in 1994 when their last child was conceived.
[12] There were no cancelled cheques or evidence of payment of the monthly amount other than a single receipt for the two years purportedly signed by his wife Barbara. She did not testify.
[13] The Appellant had the burden of proof. To establish his position, the Appellant requires more than his oral evidence alone. Obviously, with the inconsistencies referred to, the evidence is suspect. The Appellant did not indicate in his 1994 return that he was separated nor did he indicate that he made alimony or maintenance payments of $600 per month. The Appellant admitted that he lived in an apartment in 1994 and 1995 with a roommate who shared the $600 a month rent. The Appellant and his wife had a child born early in 1995. There were no cancelled cheques or money order receipts or individual cash payment receipts. The Appellant's wife did not testify. There was insufficient evidence to support the Appellant's claim.
[14] With respect to the second issue, I arrive at the same conclusion. The Appellant submitted that he supported his child Christel, who now lives in Ghana. He states that he supported Christel by sending his sister money from time to time, in Ghana, for his child's support. He stated further that Christel came to live with him for seven months during 1994 and he was her sole guardian and supporter. She was five years old. During this period, he was living with a roommate and working full time. He stated in cross-examination that while he was working, a friend, Sam, looked after Christel without compensation. The Appellant stated that she did not go to school during the seven-month period because she was not a legal resident of Canada. The Appellant had no receipts for payment of his rent during 1994 and 1995. He stated he had no lease because it was a sublet and he paid rent in cash. To be successful the Appellant must satisfy the provision of paragraph 118(1)(b) of the Income Tax Act which reads:
"SECTION 118:
(1) For the purpose of computing the tax payable under this Part by an individual for a taxation year, there may be deducted an amount determined by the formula
A x B
...
(b) Wholly dependent person - in the case of an individual not entitled to a deduction by reason of paragraph (a) who, at any time in the year,
(i) is an unmarried person or a married person who neither supported nor lived with his spouse and is not supported by his spouse, and
(ii) whether by himself or jointly with one or more other persons, maintains a self-contained domestic establishment (in which the individual lives) and actually supports therein a person who, at that time, is
(A) except in the case of a child of the individual, resident in Canada,
(B) wholly dependent for support on the individual, or the individual and such other person or persons, as the case may be,
(C) related to the individual, and
..."
[15] There is insufficient evidence to support the Appellant's claim. The Appellant is not entitled to claim in the 1994 and 1995 taxation years non-refundable tax credits for an equivalent-to-married amount in respect of his child residing in Ghana. The Appellant did not maintain a self-contained domestic establishment and actually support in that establishment the child within the meaning of paragraph 118(1)(b) of the Income Tax Act, and therefore, was properly reassessed to disallow the credits he claimed for those years in respect of the child.
[16] The appeal is dismissed.
Signed at Ottawa, Canada, this 16th day of October 1998.
|
"C.H. McArthur" |
J.T.C.C.
COURT FILE NO.: 97-3369(IT)I
STYLE OF CAUSE: Agyemang Boachie-Yiadom and H.M.Q.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 9, 1998
REASONS FOR JUDGMENT BY: The Honourable Judge C.H. McArthur
DATE OF JUDGMENT: October 16, 1998
APPEARANCES:
Agent for the Appellant: W. Ankomah
Counsel for the Respondent: C. Mohr
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada