Schwanz v. The Queen

Schwanz v. The Queen
Court (s) Database
Tax Court of Canada Judgments
Date
2003-05-07
Neutral citation
2003 TCC 316
File numbers
2002-3171(IT)I
Judges and Taxing Officers
Leslie M. Little
Subjects
Income Tax Act
Decision Content
Docket: 2002-3171(IT)I
BETWEEN:
JUDITH SCHWANZ,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeals heard on May 5, 2003 at Toronto, Ontario
Before: The Honourable Judge L.M. Little
Appearances:
For the Appellant:
The Appellant herself
Counsel for the Respondent:
Joel Oliphant
____________________________________________________________________
JUDGMENT
The appeals from the assessments made under the Income Tax Act for the 1997 and 1998 taxation years are dismissed, without costs, in accordance with the attached Reasons for Judgment.
Signed at Toronto, Ontario, this 7th day of May 2003.
"L.M. Little"
J.T.C.C.
Citation: 2003TCC316
Date: 20030507
Docket: 2002-3171(IT)I
BETWEEN:
JUDITH SCHWANZ,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Little, J.
A. FACTS
[1] The Appellant was the mother of three children:
Born
Holly M. Kirkwood
December 18, 1982
Sarah A. Kirkwood
July 05, 1987
Roy A. Kirkwood
September 25, 1990
(The above children are hereinafter referred to as the "Children").
[2] Andrew Kirkwood was the father of the Children.
[3] The taxation years in question are:
1997 Base Taxation Year - (for the period July 1998 to June 1999).
1998 Base Taxation Year - (for the period July 1999 to June 2000).
[4] The Minister of National Revenue (the "Minister") determined that the Children were residing with the Appellant at all relevant times in the 1997 and 1998 base taxation years. The Minister therefore concluded that the Appellant was entitled to receive the Canada Child Tax Benefit ("CCTB") in respect of the Children.
[5] The Minister paid the Appellant the CCTB in respect of the Children during the 1997 and 1998 base taxation years. The following CCTB payments were paid by the Minister to the Appellant in respect of the Children:
1997
$4,102.08
1998
$4,179.18
[6] The Appellant stated that she did not advise the Minister that the Children had ceased to reside with her in the 1997 and 1998 base taxation years.
[7] The Appellant maintains that she paid the CCTBs of $4,102.08 and $4,179.18 in cash to Andrew Kirkwood.
[8] The Minister concluded that since the Children were not residing with the Appellant in the 1997 and 1998 base taxation years the Appellant was not entitled to receive the CCTB in respect of the Children for the 1997 and 1998 base taxation years. The Minister has therefore demanded that the Appellant repay the amounts of $4,102.08 and $4,179.18.
B. ISSUE
[9] The issue is whether the Appellant is required to repay the CCTB payments of $4,102.08 and $4,179.18 that she received in respect of the Children in the 1997 and 1998 base taxation years respectively.
C. ANALYSIS
[10] Section 122.61 of the Income Tax Act (the "Act") provides for payment of the CCTB to an "eligible individual". In order to qualify as an "eligible individual" a person must reside with the child (see definition of "eligible individual" in section 122.6 of the Act). In this situation the evidence is clear that the Appellant did not reside with the Children during the 1997 and 1998 base taxation years. The Appellant was therefore not an eligible individual within the meaning of the definition contained in the Act in the 1997 and 1998 base taxation years.
[11] Before concluding my comments, I wish to note that I have some sympathy for the Appellant since she maintains that she gave all of the CCTB payments that she received to the children's father, Andrew Kirkwood. It seems to me that the Appellant's dispute is not with the Minister but with Andrew Kirkwood. In this connection it should be noted that in a memorandum dated November 18, 2001 (Exhibit A-1) Andrew Kirkwood said as follows:
I Andrew Kirkwood, declare that I received $6,000.00 through Canada Customs and Revenue Agency. I received all child credits from Judith Anne Shwanz regarding our children, Holly, Sarah and Roy. I take all responsibilities hereafter.
Based on the statements made by Mr. Kirkwood in this memorandum, it would appear that the Appellant should obtain the payments made to satisfy the Minister's claim from Andrew Kirkwood.
[12] The appeals are dismissed, without costs.
Signed at Toronto, Ontario, this 7th day of May 2003.
"L.M. Little"
J.T.C.C.
CITATION:
2003TCC316
COURT FILE NO.:
2002-3171(IT)I
STYLE OF CAUSE:
Judith Schwanz and
Her Majesty the Queen
PLACE OF HEARING:
Toronto, Ontario
DATE OF HEARING:
May 5, 2003
REASONS FOR JUDGMENT BY:
The Honourable Judge L.M. Little
DATE OF JUDGMENT:
May 7, 2003
APPEARANCES:
For the Appellant:
The Appellant herself
Counsel for the Respondent:
Joel Oliphant
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada