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Docket: 2005-3690(IT)I |
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BETWEEN: |
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NELLY SAMAYOA, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
____________________________________________________________________
Appeals heard on July 14, 2006 at Vancouver, British Columbia
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Before: The Honourable Justice L.M. Little |
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Appearances: |
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For the Appellant: |
The Appellant herself |
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Counsel for the Respondent: |
Gavin Laird |
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JUDGMENT
The appeals from the assessments made under the Income Tax Act for the 2001 and 2002 base taxation years are dismissed, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 25th day of August 2006.
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"L.M. Little" |
Little J.
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Citation: 2006TCC469 |
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Date: 20060825 |
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Docket: 2005-3690(IT)I |
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BETWEEN: |
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NELLY SAMAYOA, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
REASONS FOR JUDGMENT
Little J.
A. FACTS
[1] The Appellant was born in Guatemala.
[2] The Appellant is the mother of the following children:
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Date of Birth |
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Waldir Daniel |
August 1, 1996 |
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Emily |
May 11, 1999 |
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Sergy |
November 6, 2002 |
(The children are collectively referred to as the "Children".)
[3] On or about February 27, 1997 the Appellant entered Canada with her son Waldir Daniel and made an application for refugee status.
[4] On or about May 5, 1999 the Appellant's application for refugee status was refused by the Immigration Refugee Board.
[5] On September 14, 1999 the Appellant made an application to Citizenship and Immigration Canada under the Humanitarian and Compassionate provisions.
[6] Citizenship and Immigration Canada denied the Appellant's application and the Appellant filed an appeal to the Trial Division of the Federal Court.
[7] On November 18, 2002 the Appellant made a further application to Citizenship and Immigration Canada and this application was also denied.
[8] On or about July 23, 2002 Citizenship and Immigration Canada issued a temporary work permit and student authorization to the Appellant.
[9] On or about August 19, 2004 the Federal Court - Trial Division granted the Appellant leave to appeal the decision of Citizenship and Immigration Canada to deny the Appellant legal status in Canada.
[10] The Appellant withdrew her appeal to the Federal Court - Trial Division because Citizenship and Immigration Canada, by letter dated January 19, 2005, granted the Appellant's application to remain in Canada during the period that her application for permanent residence was in process.
[11] The Appellant applied for and received the Canada Child Tax Benefits ("CCTB") with respect to the Children for each month commencing August 2002 to June 2003 and for the month of July 2003 (the "Period").
[12] The Minister of National Revenue (the "Minister") issued Notices of Determination which determined that the Appellant received an overpayment of CCTB for the period August 2002 to June 2003 and for July 2003 on the basis that the Appellant did not have a legal status in Canada during this period.
B. ISSUE
[13] The issue is whether the Minister has properly denied the Appellant's entitlement to the CCTB for the Children during the period August 2002 to June 2003 and for the month of July 2003 pursuant to the provisions of section 122.6 of the Income Tax Act (the "Act").
C. ANALYSIS
[14] Section 122.6 of the Act defines "eligible individual" as follows:
"eligible individual" − in respect of a qualified dependent at any time means a person who at that time
(a) resides with the qualified dependent,
(b) is the parent of the qualified dependent who primarily fulfils the responsibility for the care and upbringing of the qualified dependent.
(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 (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 purposes of this definition,
(f) where a qualified dependent resides with the dependent's female parent, the parent who primarily fulfils the responsibility for the care and upbringing of the qualified dependent 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.
[15] Mr. Robert North, an official of Citizenship and Immigration Canada was called as a witness by counsel for the Respondent.
[16] Mr. North testified that the Appellant did not ever have Temporary Resident status in Canada or permanent resident status in Canada during the Period. Mr. North said that she did not receive permanent resident status in Canada until June 8, 2006.
[17] The Appellant was not a resident of Canada in the Period. I have concluded that the Appellant was not an "eligible individual" as that phrase is defined in section 122.6 of the Act. I have therefore concluded that the Minister was correct when he determined that the Appellant was not allowed to claim CCTB for the Period.
[18] Before concluding my remarks I wish to note that officials of the Canada Revenue Agency have admitted that they made a mistake in issuing the CCTB payments to the Appellant for the Period. In view of the fact that the Appellant's tax problems were caused by mistakes made by officials of the CRA, this may be a situation where the Minister of National Revenue should issue a remission under section 23 of the Financial Administration Act. I do not have the authority to issue a remission.
[19] The appeals are dismissed, without costs.
Signed at Ottawa, Canada, this 25th day of August 2006.
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"L.M. Little" |
Little J.
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CITATION: |
2006TCC469 |
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COURT FILE NO.: |
2005-3690(IT)I |
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STYLE OF CAUSE: |
Nelly Samayoa and Her Majesty the Queen |
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PLACE OF HEARING: |
Vancouver, British Columbia |
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DATE OF HEARING: |
July 14, 2006 |
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REASONS FOR JUDGMENT BY: |
The Honourable Justice L.M. Little |
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DATE OF JUDGMENT: |
August 25, 2006 |
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APPEARANCES: |
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For the Appellant: |
The Appellant herself |
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Counsel for the Respondent: |
Gavin Laird |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
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Firm: |
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For the Respondent: |
John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Canada |