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T-3470-81
The Queen (Plaintiff)
v.
Brenda A. Robichaud (Defendant)
Trial Division, Marceau J.—Moncton, March 22; Ottawa, April 22, 1983.
Income tax — Income calculation — Deductions — Defend ant claiming deduction under s. 109 as married person sup porting spouse — Husband allowed similar deduction — Whether two-way marital deduction authorized under Act — Appeal allowed — "Support" in s. 109 related to subsistence — "Supported" meaning dependent of other, i.e., deriving means of subsistence from other — Dependant cannot be supporter of own supporter — Deduction under s. 109 for support of spouse, not for household expenses — Income Tax Act, S.C. 1970-71-72, c. 63, s. 109(1) (as am. by S.C. 1973-74, c. 30, s. 11; 1976-77, c. 4, s. 42).
The defendant claimed, for the 1977 taxation year, the deduction allowed under paragraph 109(1)(a) of the Income Tax Act on the basis that, in 1977, she had been a married person who had supported her spouse whose income, in 1977, during the seven days they had been married, had not exceeded $250. The Minister disallowed the deduction on the ground that her husband had already been allowed a similar deduction under the same section and on the same basis. The Tax Review Board, satisfied that the requirements of paragraph 109(1)(a) were met, allowed the defendant's claim on the ground that the amounts expended by the defendant in the month preceding her marriage had been made for commodities used after the mar riage (suit, food, cablevision) and had to be considered as expenses made to support her spouse after the marriage. The issue—whether a two-way marital deduction is possible for spouses under the Act—turns on the interpretation of the word "support" in section 109.
Held, the appeal should be allowed. The deduction under section 109 is for the support of a spouse, not for household expenses. The word "support" and the French expression sub- venir aux besoins convey the meaning of being a source of subsistence, sustenance or living. Where a person is supported by another, either totally or partially, that person is a depend ant of the other, i.e., derives his or some of his means of subsistence from the other. A dependant cannot be the support er of his own supporter. In the case at bar, the defendant failed to establish that she had supported her husband during the marriage.
CASE JUDICIALLY CONSIDERED
REFERRED TO:
Johnston v. Minister of National Revenue, [ 1948] S.C.R. 486.
COUNSEL:
Paul Plourde for plaintiff.
Peter Beardsworth for defendant.
SOLICITORS:
Deputy Attorney General of Canada for plaintiff.
Beardsworth & Wright, Riverview (New Brunswick), for defendant.
The following are the reasons for judgment rendered in English by
MARCEAU J.: The point at issue in this appeal by the Deputy Attorney General of Canada against a decision of the Tax Review Board is narrow and straightforward and one has difficulty in trying to understand how it has not yet given rise to a decision of the Court. It relates to the well known marital exemption section of the Income Tax Act, subsection 109(1) [S.C. 1970-71-72, c. 63, as am. by S.C. 1973-74, c. 30, s. 11; 1976-77, c. 4, s. 42] which, for convenience, I should reproduce here:
109. (1) For the purpose of computing the taxable income of an individual for a taxation year, there may be deducted from his income for the year such of the following amounts as are applicable:
(a) in the case of an individual who, during the year, was a married person who supported his spouse, an amount equal to the aggregate of
(i) $1,600, and
(ii) $1,400 less the amount, if any, by which the spouse's income for the year while married exceeds $300;
(b) in the case of an individual not entitled to a deduction under paragraph (a) who, during the year,
(i) was an unmarried person or a married person who neither supported nor lived with his spouse and was not supported by his spouse, and
(ii) whether by himself or jointly with one or more other persons, maintained a self-contained domestic establish ment (in which the individual lived) and actually support ed therein a person who, during the year, was
(A) wholly dependent for support upon, and
(B) connected, by blood relationship, marriage or adop tion, with
the taxpayer, or the taxpayer and such one or more other
persons, as the case may be,
an amount equal to the aggregate of
(iii) $1,600, and
(iv) $1,400 less the amount, if any, by which the income for the year of the dependent person exceeds $300;
The defendant taxpayer, Brenda A. Robichaud, married on December 23, 1977 and from then on resided with her husband. Throughout that year 1977, she and her husband had been both employed; she had earned $8,467.30 while her husband had earned about twice as much. In filing her 1977 income tax return, the defendant claimed entitlement to the deduction allowed under para graph 109(1)(a) of the Act on the basis that, in 1977, she had been a married person who had supported her spouse whose income in that year during the seven days they had been married had not exceeded $250. Since her husband had himself already claimed and been allowed a similar deduc tion under the same section and on the same basis, the Minister denied the defendant's claim. The Board, on appeal, did not agree with the Minister and decided that the defendant, in the circum stances, was entitled to the marital deduction as well as her husband. Is such a two-way marital deduction a possibility for spouses under the Act? This is the point the Minister seeks to clarify by asking this Court to quash the decision of the Board setting aside his assessment.
The member of the Board called upon to hear the appeal first accepted evidence to the effect that the defendant, in the month preceding her mar riage, had expended moneys for the mutual benefit of herself and her future husband. He noted that the defendant had indeed, jointly with her future spouse, borrowed $3,000 of which $2,720.30 was used to pay the down payment on a residence they were acquiring. He noted also that she had paid at one occasion $129.95 and at another $33 to pur chase and alter clothing for her spouse; she had given her spouse $37.10 for his personal use; had paid $27.15 for cablevision and $54 towards insur ance on their new residence. The member of the Board then recalled three well-established proposi tions with respect to the proper construction to be given to subsection 109(1) namely: (a) the require ment that the taxpayer has supported his spouse during the year is not dependent on any time
factor, the phrase "during the year" meaning "in the course of the year" not "throughout the year"; (b) it is not part of the requirement that the taxpayer has "wholly" supported his spouse; (c) the taxpayer may have supported his spouse despite the fact that the latter has had during the year an independent income. On the basis of these three propositions and a finding that the expenses of the defendant, having been made "for commodi ties which were used after the marriage (suit, food, cablevision)", had to be "considered as expenses made to support (her) spouse after the marriage", the member simply declared himself satisfied that the requirements of paragraph 109(1)(a) were met.
I have some difficulty in following the member's analysis and especially I do not see clearly the place assigned in his reasoning to the three propo sitions referred to. Much emphasis was very ably reserved by counsel for the defendant on the third of the three propositions, for the added support of which special reference was made to the decision of the Supreme Court in Johnston v. Minister of National Revenue, [1948] S.C.R. 486 where Kel- lock J. in the course of his reasons had said [at page 493]: "I think a husband may continue to support his wife within the meaning of the statute although his wife may supply some money toward meeting the cost of maintenance of the household." However, between the one proposition that a married person may support his or her spouse in spite of the fact that the latter has an independent revenue and contributes some moneys toward household expenses and the other proposi tion that a married person may at the same time support and be supported by his or her spouse there is, in my view, a gap which I do not think can be bridged.
It seems to me that the decision of the Board simply eludes the real question that has to be addressed which is whether or not the defendant has "supported" her husband within the meaning of the Act. It simply assumes that because the defendant has made some expenses for the mutual interest of the couple, she has supported her hus band but this is a completely unjustified assump-
tion. It is unjustified for the very reason that the words used must be given their meaning and effect. The deduction is for supporting a spouse not merely for making household expenses.
In my view, the English word "support" and the French corresponding phrase subvenir aux besoins necessarily convey the meaning of being a source of subsistence, sustenance or living. He who is supported by another, be it totally or only partial ly, is a dependant of the other, i.e. derives his or some of his means of subsistence from the other. That being so, it seems to me somewhat difficult to suggest that a dependant could be the supporter of his own supporter.
In my view, the defendant whose wages were half those of her husband has never established that she had supported her husband during the marriage. The assessment of March 19, 1979, by which the Minister disallowed the deduction she had claimed under subsection 109(1) was there fore well founded and must be restored. Judgment will go accordingly.
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