Luo v. R. – TCC: Resident of China not entitled to Canada Child Tax Benefit

Bill Innes on Current Tax Cases

http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/71777/index.do New Window

Luo v. The Queen (May 9, 2014 – 2014 TCC 143) was a case involving the Minister’s determination that the taxpayer had not been entitled to the Canada Child Tax Benefit in respect of her children “S” and “Z” prior to July 5, 2010. She  signed the application for the Benefit in 2008 at a time she was a resident of China. She remained a resident of China until the date of her immigration to Canada (July 5, 2010). She blamed her former husband for submitting the Benefit application without her knowledge and argued that she was not aware that it had been paid into their joint account. The court did not accept her evidence:

[11] The appellant filed a divorce agreement made in the Guangzhou Notary Public Office in China, together with an English translation. The agreement is signed July 17, 2009 and is between the appellant and her husband, Li Yue. In the agreement, they agree to divorce and, among other things, the agreement provides the following:

Bank deposit: Each party’s own bank deposit will be owned by each party. In reference to our bank deposit maintained in both parties’ names (joint account), some bank deposit in our joint account is the allowance to the eldest daughter “Z” (the daughter given birth to by the male party’s ex-wife and male party) given according to Canada laws and regulations will be owned by the male party. The rest bank deposit in our joint account will be owned by the female party.

[12] Given the above statement in the 2009 divorce agreement with her ex husband and given that she signed a child benefit application for both children, I do not believe her evidence that she did not know the child benefit was being paid. Not only does the document show she was aware, it also shows she agreed with her husband on the disposition of the funds.

[13] As a result I conclude that the appellant was a knowing participant in claiming the Child Tax Benefit.

[14] In any event, the narrow issue before me is the following: Was the Minister wrong in concluding that she was not entitled to the Child Tax Benefit prior to July 5, 2010? The answer is clear, the appellant was not eligible. She did not reside in Canada and therefore could not be an “eligible individual”.

As a result the appeal was dismissed.