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FEDERAL INCOME TAX - Computation of tax - Individuals - Tax credits - Child tax benefits

Wednesday, July 11, 2018 @ 8:22 AM  

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Appeal by Almadhoun from a Tax Court decision finding she was not an eligible individual for the purpose of receiving child tax benefits (CTB). The appellant was a Palestinian citizen of Jordan who entered Canada on different visitor visas between 2005 and 2011. Her child was a Canadian citizen. The appellant alleged that her husband was abusive and intended to deny her custody and access to the child. In 2011, she re-entered Canada from Kuwait and claimed refugee protection. Thereafter, she resided in Ottawa with the child and did not travel outside of Canada. She obtained a driver's licence, health care coverage, a work permit, an apartment lease and a bank account. Following denial of her refugee claim in 2013, the appellant obtained permanent residence in 2016 on humanitarian and compassionate grounds. In 2014, the Canada Revenue Agency (CRA) advised the appellant it was retroactively rescinding eligibility for the CTB she had received since 2012. The Minister concluded the appellant was neither a temporary resident nor a protected person under the Immigration and Refugee Protection Act. The Tax Court affirmed the finding, but referred consideration of any taxpayer relief or remission of taxes back to the CRA based on the impact of its error on the appellant. Almadhoun appealed. She sought to challenge the constitutionality of s. 122.6 of the Income Tax Act as contrary to s. 15 of the Charter. The Crown cross-appealed.

HELD: Appeal dismissed and cross-appeal allowed. The Tax Court judge did not err in concluding the appellant was not an eligible individual for the CTB under s. 122.6 of the Act. The appellant, as a refugee claimant, did not fit into either category of a temporary resident or protected person. Neither category existed on a de facto basis. Temporary residence explicitly required conferral of such status by an immigration officer. Refugee claimants awaiting determination of their claims did not temporarily qualify as protected persons, as they were subject to a conditional removal order in the event of rejection. The Court declined to entertain the appellant's Charter challenge, as it was raised for the first time on appeal. With respect to the cross-appeal, the Tax Court judge exceeded his jurisdiction in referring the taxpayer relief back to the Minister. Once the correctness of the tax assessment under appeal was confirmed and the appeal dismissed, there was nothing more for the Tax Court to adjudicate. The judge was not entitled to interfere with the Minister's discretion under the circumstances.

Almadhoun v. Canada, [2018] F.C.J. No. 581, Federal Court of Appeal, D.G. Near, Y. de Montigny and J.B. Laskin JJ.A., June 5, 2018. Digest No. TLD-July92018006