BETWEEN:
and
____________________________________________________________________
Appeal heard on July 5, 2005 at Saskatoon, Saskatchewan
Before: The Honourable Justice D.W. Beaubier
Appearances:
____________________________________________________________________
JUDGMENT
The appeals from the reassessments made under the Income Tax Act for the 2001, 2002 and 2003 taxation years are allowed and the reassessments are referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.
The Appellant is awarded $150 on account of her disbursements for postage, telephone calls and parking and travel for attending this hearing.
Signed at Saskatoon, Saskatchewan, this 28th day of July, 2006.
"D.W. Beaubier"
BETWEEN:
SUSAN PENNER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
[1] This appeal pursuant to the Informal Procedure was heard at Saskatoon, Saskatchewan on July 5, 2006. The Appellant was the only witness.
[2] At the outset, the Appellant advised that her address for this appeal is henceforth to be:
115 Leland Terrace
Saskatoon, Saskatchewan
S7H 1A7
Telephone: (306) 374-1481
[3] The matters in dispute are set out in paragraphs 5 to 12, inclusive, of the Reply to the Notice of Appeal. They read:
5. By CCTB notices dated December 13, 2004, the Minister of National Revenue (the "Minister") informed the Appellant that with respect to the 2001, 2002 and 2003 base years, more specifically for the period of September 2002 to December 2004, the Appellant was not the eligible individual for Brittany as the child was no longer in the Appellant's care and as a result, the Appellant had been overpaid CCTB benefits in the amount of $4,413.96.
6. By Goods and Services Tax Credit (hereinafter "GSTC") notices dated December 3, 2004, the Minister informed the Appellant that with respect to the 2001, 2002 and 2003 base years, that her entitlement had been recalculated to remove Brittany as a qualified dependant and as a result, the Appellant had been overpaid GSTC benefits in the amount of $487.75.
7. The Appellant filed a Notice of Objection received December 29, 2004.
8. By means of a letter dated February 4, 2005, the Minister confirmed the CCTB notices and GST notices. The Minister considered that the Appellant was not an eligible individual within the meaning of section 122.6 of the Income Tax Act (the "Act").
9. On February 18, 2005 a Notice of Appeal was filed with the Tax Court of Canada.
10. In so redetermining and confirming the Appellant's CCTB and GSTC for the 2001, 2002 and 2003 base years, the Minister assumed the same facts as follows:
(a) the months specified for the CCTB in respect of the 2001, 2002 and 2003 base years are as follows:
|
Base Year |
Months Specified - CCTB |
|
2001 |
September 2002 to June 2003 |
|
2002 |
July 2003 to June 2004 |
|
2003 |
July 2004 to December 2004 |
(b) the months specified for the GSTC in respect of the 2001, 2002 and 2003 base years are as follows:
|
Base Year |
Months Specified - GSTC |
|
2001 |
October of 2002 January and April of 2003 |
|
2002 |
July and October of 2003 January and April of 2004 |
|
2003 |
July and October of 2004 |
(c) Brittany, born January 10, 1989, is the Appellant's grand daughter;
(d) the Appellant was the person who primarily fulfilled the responsibility for the care and upbringing of Brittany until August 16, 2002;
(e) on August 17, 2002, Brittany began residing with Sheila and Trevor Jubenville (the "Jubenvilles");
(f) the Jubenvilles are responsible for all decisions regarding Brittany including health and education;
(g) beginning August 17, 2002, the Jubenvilles primarily fulfilled the responsibility for the care and upbringing of Brittany;
(h) while residing with the Jubenvilles, 2002 Brittany would visit the Appellant on holidays;
(i) the Appellant received CCTB payments as follows and detailed in Schedule A, attached to and forming part of the Reply to the Notice of Appeal (hereinafter "Schedule A");
|
Amount |
Base Year |
|
$2,444.00 |
2001 |
|
$1,781.54 |
2002 |
|
$ 595.75 |
2003 |
(j) the Appellant was entitled to CCTB payments as follows and detailed in Schedule A:
|
Amount |
Base Year |
|
$407.33 |
2001 |
|
Nil |
2002 |
|
Nil |
2003 |
(k) the Appellant was in receipt of CCTB overpayments totalling $4,413.96 in respect of the 2001, 2002 and 2003 base years as follows and detailed in Schedule A:
|
Amount |
Base Year |
|
$2,036.67 |
2001 |
|
$1,781.54 |
2002 |
|
$ 595.75 |
2003 |
(l) the Appellant received GSTC payments as follows and detailed in Schedule B, attached to and forming part of the Reply to the Notice of Appeal (hereinafter "Schedule B");
|
Amount |
Base Year |
|
$403.50 |
2001 |
|
$530.65 |
2002 |
|
$181.47 |
2003 |
(m) the Appellant was entitled to GSTC payments as follows and detailed in Schedule B:
|
Amount |
Base Year |
|
$243.75 |
2001 |
|
$314.65 |
2002 |
|
$ 69.47 |
2003 |
(n) the Appellant was in receipt of GSTC overpayments totalling $487.75 as follows and detailed in Schedule B:
|
Amount |
Base Year |
|
$159.75 |
2001 |
|
$216.00 |
2002 |
|
$112.00 |
2003 |
B. ISSUES TO BE DECIDED
11. The issues are:
(a) whether the Appellant is considered an eligible individual after August 31, 2002 pursuant to section 122.6 of the Act for the 2001, 2002 and 2003 base years;
(b) whether the Appellant was overpaid CCTB benefits in the amount of $4,413.96 in respect of the 2001, 2002 and 2003 base years;
(c) whether Brittany is a qualified dependant of the Appellant after August 31, 2002 pursuant to section 122.5 of the Act for the 2001, 2002 and 2003 base years; and
(d) whether the Appellant was overpaid GSTC benefits in the amount of $487.75 in respect of the 2001, 2002 and 2003 base years.
C. STATUTORY PROVISIONS, GROUNDS RELIED ON AND RELIEF SOUGHT
12. He relies on sections 122.5, 122.6 and 122.61 of the Act as amended for the 2001, 2002 and 2003 base years and Regulations 6300, 6301 and 6302 of the Income Tax Regulations.
[4] Assumptions 10 (a), (b), (c), (d), (i) and (l) were not refuted by the evidence.
[5] The Appellant was granted legal custody of Brittany by Brittany's mother. In the summer of 2002, the Appellant investigated sending Brittany to a Roman Catholic boarding school at Prelate, Saskatchewan since the Appellant had Brittany and was teaching school in a remote village in northern Saskatchewan. Her minister put her in touch with the Jubenvilles in Yorkton, Saskatchewan for the same purpose, Mrs. Jubenville being a social worker. As a result, the Appellant placed Brittanywith the Jubenvilles as an alternative to the boarding school at Prelate, Saskatchewan.
[6] To be an "eligible individual" one must reside with the qualified dependent and be the parent who primarily fulfils the responsibility for the care and upbringing of the dependant (s. 122.6). The Appellant is the parent, having been granted custody. Brittany resided with her when she was not attending school. The Appellant stated that Brittany's stay with the Jubenvilles was the same as staying at a boarding school and that the intention of the Appellant and the Jubenvilles was identical with that in a boarding school situation.
[7] The Court accepts that argument and view. The Appellant paid the Jubenvilles $400 per month for Brittany's board and room. Moreover, the Appellant was the only person who had the legal responsibility for the care and upbringing of Brittany. If any decision respecting Brittany's medical care or education was required, that was the responsibility of the Appellant both in fact and in law. Placing Brittanywith the Jubenvilles to go to school was such a decision.
[8] Thus Brittany's residence at all times during the times in dispute was at the home of the Appellant and she lived with the Appellant when school was not in session, just like any other child attending a boarding school.
[9] As a result, Brittany resided with the Appellant at all times in question and the Appellant was the person who primarily fulfilled the responsibility for the care and upbringing of Brittany. Brittanywas merely sojourning when she attended school at the Jubenvilles.
[10]The appeal is allowed.
[11]The Appellant is awarded $150 on account of her disbursements for postage, telephone calls and parking and travel for attending this hearing.
Signed at Saskatoon, Saskatchewan, this 28th day of July, 2006.
"D.W. Beaubier"
Beaubier J.
COURT FILE NO.: 2005-1186(IT)I
STYLE OF CAUSE: Susan Penner v. The Queen
PLACE OF HEARING: Saskatoon, Saskatchewan
REASONS FOR JUDGMENT BY: The Honourable Justice D.W. Beaubier
DATE OF JUDGMENT: July 28, 2006
APPEARANCES:
|
For the Appellant: |
The Appellant herself |
|
Counsel for the Respondent: |
Anne Jinnouchi |
COUNSEL OF RECORD:
Firm:
For the Respondent: John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Canada