Docket: 2004-178(IT)I BETWEEN: JUDITH IRWIN, Appellant, and HER MAJESTY THE QUEEN, Respondent.

____________________________________________________________________

Appeal heard on September 29, 2004 at Kingston, Ontario

By: The Honourable Justice J.M. Woods
Appearances:
For the Appellant:	The Appellant herself
Counsel for the Respondent:	Joanna Hill

____________________________________________________________________

JUDGMENT

The appeal in respect of an assessment made under the Income Tax Act for the 2002 taxation year is dismissed.

Signed at Ottawa, Canada the 5th day of October, 2004.

"J.M. Woods"

J.M. Woods J.

Citation: 2004TCC668

Date: 20041005

Docket: 2004-178(IT)I

BETWEEN:

JUDITH IRWIN,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR JUDGMENT

(edited from reasons delivered orally at

Kingston, Ontarioon September 29, 2004)

Woods J.

[1]      The appellant, Judith Irwin, is a professor of physics and astronomy at Queen's University in Kingston, Ontario. She appeals an assessment for the 2002 taxation year that denied the dependent tax credit, sometimes known as the equivalent-to-spouse tax credit, in respect of her daughter. The Minister of National Revenue disallowed the credit pursuant to subsection 118(5) of the Income Tax Act on the ground that Professor Irwin was required to pay support payments in respect of the children.

[2]      Professor Irwin separated from her husband in 2001 and they agreed to share custody of their two children. On the advice of a lawyer, child support payments were agreed to based on the relevant Ontario guidelines. Since each parent had partial custody and Professor Irwin had the larger income, she was required to pay her former husband a monthly amount determined as the difference between the payments that would be required by each spouse under the guidelines.

[3]      In general, subsection 118(5) prohibits a person from claiming the equivalent-to-spouse tax credit in respect of children if the person pays support payments for the children. Professor Irwin does not deny that the subsection applies in her case but argues for relief on the grounds of fairness. Simply put, she suggests that the legislation does not properly deal with joint custody situations.

[4]      Where the prohibition in subsection 118(5) clearly applies in a particular case, I have no alternative but to apply it. The Tax Court has no equitable jurisdiction and is required to apply the law as legislated by Parliament. Regrettably, I find that subsection 118(5) does apply in this case and the appeal must be dismissed.

[5]      I commend Professor Irwin for trying to seek redress for what she clearly believes to be an unfair tax result. I regret that my decision cannot be more favourable.

Signed at Ottawa, Canada, this 5th day of October, 2004.

"J.M. Woods"

J.M. Woods J.

CITATION:

2004TCC668

COURT FILE NO.:	2004-178(IT)I
STYLE OF CAUSE:	Judith Irwin v. The Queen

PLACE OF HEARING:

Kingston, Ontario

DATE OF HEARING:

September 29, 2004

REASONS FOR JUDGMENT BY:

The Honourable Justice J.M. Woods

DATE OF REASONS FOR JUDGMENT:

October 5, 2004

APPEARANCES:

For the Appellant:

The Appellant herself

Counsel for the Respondent:

Joanna Hill

COUNSEL OF RECORD:

For the Appellant:

Name:

Firm:

For the Respondent:

Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada