Date: 19971222
Docket: 97-29-IT-I
BETWEEN:
GEORGES MOURANI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Tardif, J.T.C.C.
[1] This is an appeal from a notice of assessment for the 1995 taxation year; for that year, the appellant claimed a dependant tax credit in respect of his mother, which the respondent disallowed.
[2] The appellant admitted all of the facts assumed by the respondent in support of the assessment. Those facts are as follows:
(a) Eidi Ghnim is the appellant’s mother;
(b) Eidi Ghnim was born in 1917;
(c) Eidi Ghnim is considered totally dependent on the appellant by the government pursuant to an immigrant sponsorship contract;
(d) Eidi Ghnim has no mental or physical infirmities;
(e) for the 1995 taxation year, the appellant is not entitled to the dependant tax credit for his mother, Eidi Ghnim, because she has no mental or physical infirmities.
[3] When he testified, the appellant stated that the first part of subparagraph (c) should have been worded as follows:
(c) Eidi Ghnim is considered totally dependent. . . .
[4] During his testimony, he clearly stated that he was not challenging the constitutionality of the Income Tax Act (“the Act”) or relying on the provisions of the Canadian Charter of Rights and Freedoms.
[5] He basically testified that his 80-year-old mother could not fit in because of her language, age and education.
[6] He said that since he signed a 10-year immigrant sponsorship contract, his mother was totally dependent on him pursuant to that contract.
[7] He explained that he neither understood nor accepted the fact that there was no consistency between his contractual obligations and his tax liabilities.
[8] He also stated that he had made the Department of Finance aware of his complaint. He testified that he has great respect for and is deeply grateful to Canadian society, but said that his appeal was motivated essentially by considerations of fairness and justice; the monetary consequences were completely minor and secondary.
[9] The appellant’s case inspires a great deal of sympathy, especially since his arguments are logical and reasonable.
[10] The relevant legal provisions read as follows:
SECTION 118: Personal credits.
(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
where
A is the appropriate percentage for the year, and
B is the total of,
. . .
(d) Dependants — for each dependant of the individual for the year who
(i) attained the age of 18 years before the end of the year, and
(ii) was dependent on the individual because of mental or physical infirmity. . . . (Emphasis added)
(6) Definition of “dependant”. For the purposes of paragraphs (1)(d) and (4)(e), “dependant” of an individual for a taxation year means a person who at any time in the year is dependent on the individual for support and is
. . .
(b) the parent, grandparent, brother, sister, uncle, aunt, niece or nephew, if resident in Canada at any time in the year, of the individual or of the individual’s spouse.
[11] The applicable legal provisions are very clear and leave little room for interpretation. To be entitled to the credit, it is essential that there be a person who is dependent because of mental or physical infirmity.
[12] To succeed, the appellant had to prove on a balance of evidence that his mother had a mental or physical infirmity. The appellant very honestly stated that his mother, who was not at the hearing, did not have an infirmity. He simply told the Court that his mother’s advanced age, ignorance of the language and inability to read or understand the country’s languages made her totally dependent on him and his immediate family.
[13] This situation gives rise to a great deal of sympathy, but unfortunately it is not covered by the Act’s provisions. While the appellant’s efforts are commendable, they are not being directed at the proper target; this is a problem that falls under Parliament’s jurisdiction much more than the jurisdiction of this Court.
[14] Regretfully, I must dismiss the appeal.
Signed at Ottawa, Canada, this 22nd day of December 1997.
“Alain Tardif”
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 27th day of May 1998.
Mario Lagacé, Revisor