[OFFICIAL ENGLISH TRANSLATION]
2000-4710(IT)I
BETWEEN:
HÉLÈNE LEMIEUX,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on September 4, 2001, at Montréal, Quebec, by
the Honourable Judge Alain Tardif
Appearances
For the Appellant: The Appellant herself
Counsel for the Respondent: Stéphanie Côté
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 1998 taxation year is dismissed and the Court orders that the $100 filing fee for this appeal be returned to the appellant.
Signed at Ottawa, Canada, this 21st day of September 2001.
|
"Alain Tardif" |
J.T.C.C.
Translation certified true
on this 3rd day of February 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 20011019
Docket: 2000-4710(IT)I
BETWEEN:
HÉLÈNE LEMIEUX,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
(Judgment delivered orally from the Bench on September 4, at Montréal, Quebec, and Reasons edited at Ottawa, Ontario, on October 19, 2001)
Tardif, J.T.C.C.
[1] The Appellant is appealing from the assessment in respect of the 1998 taxation year.
[2] The issue is whether the appellant was entitled to claim an additional $4,153.61 paid by her as a deduction for legal expenses for the 1998 taxation year.
[3] The reassessment in dispute in this appeal was made on the basis of the following assumed facts:
[TRANSLATION]
(a) Jacques Martel (hereinafter "the former spouse") and Hélène Lemieux (the appellant) have been divorced since December 16, 1992 (divorce judgment not available);
(b) they have two children:
Marie-Ève, who was born on October 5, 1984, and
Maxime, who was born on June 17, 1986;
(c) the appellant submitted a letter dated December 14, 1998, from Louise Woodfine, her lawyer, confirming that she had received $6,369.26 from the appellant in 1998 to pay fees, disbursements and taxes;
(d) a statement of account that Ms. Woodfine sent the appellant on January 18, 2000, for the 1998 taxation year reads as follows:
You retained my services to:
(i) obtain a judgment concerning support for your children, which had previously been paid in accordance with an agreement between you and Mr. Martel ($3,555.61)
(ii) contest the appeal from the judgment ($1,650.32)
(iii) contest the motion to vary custody and reduce support ($565.33)
(e) there is an unjustified $604 [sic] difference between the $6,369.26 deduction claimed for legal expenses and Ms. Woodfine's statement of account for $5,369.26;
(f) in auditing the appellant's tax return for the 1998 taxation year, the Minister determined that the legal expenses were not deductible, partly because they were incurred to obtain a judgment establishing support or another allowance payable on a periodic basis and partly because they were legal expenses not justified by the appellant and her lawyer.
The appellant admitted paragraphs (a), (b), (c), (d)(i), (d)(ii), (d)(iii) and (e).
[4] Relying on a directive, the appellant argued that she was entitled to claim an additional $4,153.61 as a deduction for legal expenses for the 1998 taxation year.
[5] The respondent argued that the appellant was not entitled to claim that additional $4,153.61 as a deduction for legal expenses for the 1998 taxation year; the reasons why the deduction was disallowed are listed in paragraph 5(f) of the Reply to the Notice of Appeal, reproduced above.
[6] The appellant asserted that all the amounts paid were deductible because they were outlays made in connection with legal proceedings relating to a support judgment, the contesting of the appeal from the judgment and the contesting of the motion to vary custody and reduce support.
[7] The appellant claimed a deduction of $6,369.26, which is $604 more than the amount itemized by her lawyer (see paragraphs (d)(i), (ii) and (iii)), which totalled $5,771.26.
[8] The respondent agreed that part of the amounts paid by the appellant were deductible on the basis of the explanations provided but refused to accept the balance of $4,153.61 as a deductible amount.
[9] This question of entitlement to claim amounts paid to obtain support or contest such an application, as a deduction for legal expenses, has been addressed in several decisions of the Tax Court of Canada; it is not always easy to identify the test or tests for determining whether the judicial and extrajudicial fees paid to obtain support or contest such an application are deductible.
[10] In Bergeron v. Canada, [1999] T.C.J. No. 510 (Q.L.), the Honourable Judge Pierre Archambault of this Court made an exhaustive analysis of both the case law and the relevant statutory provisions and finally concluded that the provisions of the Income Tax Act did not authorize such a deduction. In paragraph 57 of his judgment, Judge Archambault stated the following:
Since there is no provision in the Act authorizing the deduction of legal expenses incurred to collect or contest the payment of support, Mr. Bergeron unfortunately cannot claim such a deduction in computing his income. For him to be entitled to such a deduction, Parliament would have to again amend the Act so as to provide for that deduction in section 60. I would add that such an amendment would also be necessary to authorize the deduction of legal expenses incurred to collect or establish a right to support.
[11] In Pierre Mathieu v. Canada, [2001] T.C.J. No. 542 (Q.L.), rendered on August 15, 2001, I completely accepted Judge Archambault's conclusions. Since I am still of the same opinion, and on the basis of the same logic, I must dismiss the appeal for the same reason, namely, that the deduction claimed is not provided for by the Income Tax Act.
Signed at Ottawa, Canada, this 19th day of October 2001.
|
"Alain Tardif" |
J.T.C.C.
Translation certified true
on this 3rd day of February 2003.
Sophie Debbané, Revisor