Farahvash v. The Queen

Farahvash v. The Queen Court (s) Database Tax Court of Canada Judgments Date 2005-11-23 Neutral citation 2005 TCC 758 File numbers 2005-867(IT)I Judges and Taxing Officers Cameron Hugh McArthur Subjects Income Tax Act Decision Content Docket: 2005-867(IT)I BETWEEN: FERIDOUN FARAHVASH, Appellant, and HER MAJESTY THE QUEEN, Respondent. ____________________________________________________________________ Appeal heard on October 20, 2005, at Ottawa, Ontario, By: The Honourable Justice C.H. McArthur Appearances: For the Appellant: The Appellant himself Counsel for the Respondent: Marie-Eve Aubry ____________________________________________________________________ JUDGMENT The appeal from the assessment of tax made under the Income Tax Act for the 2001 taxation year is dismissed. Signed at Ottawa, Canada, this 23rd day of November 2005. "C.H. McArthur" McArthur J. Citation: 2005TCC758 Date: 20051123 Docket: 2005-867(IT)I BETWEEN: FERIDOUN FARAHVASH, Appellant, and HER MAJESTY THE QUEEN, Respondent. REASONS FOR JUDGMENT McArthur J. [1] This appeal is from a reassessment by the Minister of National Revenue to the effect that the Appellant, in computing non-refundable tax credits for the 2001 taxation year, was not entitled to claim the amount of $6,293 as an eligible dependant for his daughter, Neali. [2] Upon hearing the evidence, counsel for the Respondent limited her position to the following. The Appellant and his spouse are both entitled to claim the eligible dependant amount. Pursuant to paragraph 118(4)(b) of the Income Tax Act, not more than one individual is entitled to claim said amount for the same taxation year in respect of the child, and as the Appellant and the spouse failed to agree as to which one would receive it, no deduction is allowed to the Appellant. [3] The Appellant was married to Akram Honari and they have a daughter, Neali, born November 10, 1994. In late October 2001, Akram left the matrimonial home, and the child resided with her mother for the remainder of the year. By an Order of the Ontario Superior Court dated January 8, 2002, both the Appellant and Akram were given joint custody of Neali, whose primary residence was with her mother, Akram. The Appellant was ordered to pay child support. Akram claimed and was granted the $6,923 child tax credit. [4] There is little doubt that the Appellant was entitled to the amount for an eligible dependant for the 2001 taxation year for his daughter. However, his former spouse had claimed the credit prior to the Appellant's application. [5] Subsection 118(4) restricts the amount of tax credit that can be claimed pursuant to subsection 118(1). Paragraph 118(4)(b) provides that only one individual can claim an equivalent to married status amount in circumstances equivalent to the facts in this appeal. Where two persons are entitled to the credit for the same child, and cannot agree as to who should claim it, neither will be allowed to claim the credit. [6] The fact that the Appellant was assessed differently from his former spouse, does not at law raise any ground for attacking his assessment. See Hawkes & Graham v. The Queen.[1] [7] In conclusion, the Appellant is not entitled to claim the amount for an eligible dependant because not more than one individual is entitled to claim in the same taxation year and the Appellant and his former spouse failed to agree as to which one of them would make the claim. [8] For these reasons, the appeal is dismissed. Signed at Ottawa, Canada, this 23rd day of November 2005. "C.H. McArthur" McArthur J. CITATION: 2005TCC758 COURT FILE NO.: 2005-867(IT)I STYLE OF CAUSE: FERIDOUN FARAHVASH & HER MAJESTY THE QUEEN PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: October 20, 2005 REASONS FOR JUDGEMENT BY: C.H. McArthur DATE OF JUDGMENT: November 23, 2005 APPEARANCES: For the Appellant: The Appellant himself Counsel for the Respondent: Marie-Eve Aubry COUNSEL OF RECORD: For the Appellant: Name: N/A Firm: For the Respondent: John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario [1] 97 DTC 5060 (F.C.A.).