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Takis P. Veliotis (Plaintiff)
v.
The Queen (Defendant)
Trial Division (T-2644-72), Pratte J.—Quebec, November 23, 1973; Ottawa, January 3, 1974.
Income tax—Alimony or maintenance—Lump sum for part payment—Whether deductible under s. 11(1)(l) of the Income Tax Act.
The plaintiff claimed to be entitled to deduct an amount of $25,000 from his income for 1969 which amount was in part payment of the sum awarded to his wife in lieu of regular maintenance payments. The decree nisi, based on an agree ment between the husband and wife, awarded the wife $50,000, $25,000 payable within 15 days of a decree abso lute and the balance payable in 3 equal yearly payments.
Held, upholding the decision of the Tax Review Board, the payment of $25,000 is not an "allowance payable on a periodic basis" within the meaning of section 11(1)(1) of the Income Tax Act.
M.N.R. v. Trottier [1967] 2 Ex.C.R. 268, [1968] S.C.R. 728, followed; No. 427 v. M.N.R. 57 DTC 291; M.N.R. v. Hansen [1968] 1 Ex.C.R. 380, considered.
APPEAL. COUNSEL:
G. Drolet for plaintiff.
Louise Lamarre-Proulx for defendant.
SOLICITORS:
Amyot, Lesage, Lesage & Co., Quebec, for plaintiff.
Deputy Attorney General of Canada for defendant.
PRATTE J.—This is an appeal from the deci sion of the Tax Review Board, dismissing the plaintiff's appeal from his income tax assess ment for the year 1969.
This action raises the question of whether the plaintiff was entitled, under section 11(1)(0 of the Income• Tax Act, to deduct from his income for 1969 the sum of $25,000.00 paid by him to his former wife during that year.
Section 11(1)(n reads as follows:
11. (1) ... the following amounts may be deducted in computing the income of a taxpayer for a taxation year:
(I) an amount paid by the taxpayer in the year, pursuant to a decree, order or judgment of a competent tribunal or pursuant to a written agreement, as alimony or other allowance payable on a periodic basis for the maintenance of the recipient thereof, children of the marriage, or both the recipient and children of the marriage, if he was living apart from, and was separated pursuant to a divorce, judicial separation or written separation agreement from, his spouse or former spouse to whom he was required to make the payment at the time the payment was made and throughout the remainder of the year.
The plaintiff was, formerly married to Mrs. Bessie Charkas. The marriage was dissolved by divorce. A decree nisi was granted by the Supe rior Court of Quebec on July 23, 1969. It is in order to quote certain portions bf that decree, in which the plaintiff is described as "petitioner" and his then wife as "respondent":
WHEREAS ... respondent was justified in seeking a divorce in her favour;
IN VIEW OF the conditions agreed on by the parties, regarding custody of the children, in accordance with the agreement concluded on June 16, 1969, and forming part of the record;
WHEREAS by the said agreement the parties determined their rights and financial obligations as a consequence of their marriage;
FOR THESE REASONS:
GRANTS a decree nisi between petitioner and respondent ...
APPROVES the agreement concluded by the parties on June 16, 1969 regarding custody of the children, subject to any recourse by either party to the Court in a case of necessity;
ORDERS petitioner to pay respondent, in lieu of an alimen tary pension and in settlement of claims resulting from the marriage, the sum of $50,000.00, $25,000.00 of which shall be payable within fifteen (15) days of a decree absolute on this petition, and $25,000.00 payable in three equal annual instalments, the first to be payable one year from the date of a decree absolute on this petition ...
This decree nisi was declared absolute on October 30, 1969. A few days later, the plaintiff made the first payment of $25,000.00, referred to in the decree nisi, to his former wife. It is this amount which he claims to be entitled to deduct from his income for 1969.
The decree nisi refers to an agreement con cluded between the plaintiff and his former spouse on June 16, 1969. The purpose of this agreement, made in anticipation of the divorce, was to determine the supplementary orders to be contained in the divorce decree. In the first paragraph the parties agreed that for eleven months of the year the two children of their marriage would be in the custody of the plain tiff. The second paragraph was headed "Other Visits and Communications with the Children". Finally, the third and fourth paragraphs read as follows:
3. MONETARY MEASURES:
Mr. Veliotis shall renounce any and all claims he may have or pretend to have on the property of Le Breton Street, St. Foy, which is now registered in Mrs. Veliotis's (sic) name;
Mr. Veliotis shall deposit with a trust company or jointly with both counsels the sum of twenty-five thousand dollars ($25,000.00) or any other negotiable instruments, the latter subject to joint agreement, in order that the said sum of twenty-five thousand dollars ($25,000.00) or the proceeds of any negotiable instruments be paid unto Mrs. Veliotis if and when a final ordinance of divorce is rendered in which would be embodied the provisions of the accessory measures outlined herein; especially those concerning the custody of the children and the respective rights and obliga tions of the parties, these accessory measures to be consid ered as an essential part of the agreement;
Over and above the cash amount to be paid to Mrs. Veliotis, as above provided for, Mr. Veliotis agrees to pay unto Mrs. Veliotis an additional amount of twenty-five thousand dollars ($25,000.00) by three yearly instalments of $8333.33 each, the first becoming due one year after the payment of the initial amount of $25,000.00. The unpaid instalments would bear interest at the rate of 7% and the amount of the interest will be added to each yearly instal ment and be paid at the same time thereas;
Mrs. Veliotis expressly renounces her right to any alimo ny or pension and undertakes to give and execute a final discharge to Mr. Veliotis following the payment of the last instalment;
Mrs. Veliotis agrees to and does desist from her action for separation as to bed and board and all other accessory and incidental proceedings related thereto, comprising Court action, Petition or Petitions, judgment or judgments ren dered thereon;
Should the Court see fit, the parties hereto agree that a final ordinance be rendered immediately notwithstanding the provisions of Article 13, Paragraph 1 but according to Paragraph 2a) of Article 13 of the Divorce Act;
4. LEGAL OR CONTRACTUAL MATRIMONIAL BENEFITS:
Mrs. Veliotis specifically renounces all rights to the ben efits stipulated in the marriage contract in her favour; in consideration of the settlement above provided for the said marriage contract to be annulled by the Ordinance of Divorce if and when rendered; with the exception of the furniture, which the Petitioner recognizes as the property of the respondent.
Section 11(1)(1) lays down the conditions the payments to which it refers must meet if they are to be deductible from the income of the taxpayer making them. Clearly, the $25,000.00 payment in question meets several of these con ditions. It was paid by plaintiff in 1969 in accordance with the judgment of a competent tribunal; it was paid to plaintiff's ex-wife; final ly, at the time of the payment, and for the remainder of 1969 the plaintiff "was living apart from and was separated pursuant to a divorce ... from his former spouse ... to whom he was required to make the payment".
The foregoing is admitted by the defendant, who nevertheless maintains that the sum of $25,000.00 which the plaintiff claims to deduct was not paid "as alimony or other allowance payable on a periodic basis for the mainte nance" of the plaintiff's former spouse. In sup port of this contention counsel for the defend ant argued that the sum of $25,000.00 was not paid in settlement of an alimentary obligation, since it was part of a larger sum ($50,000.00) which the plaintiff had to pay in order to be released from any alimentary obligation toward his former spouse. Counsel also contended that the obligation imposed on the plaintiff to pay the sum of $25,000.00 was not in the nature of an alimentary obligation, since the right of the plaintiff's former wife to require this payment was assignable and could be passed on to her heirs. On this point counsel for the defendant referred the Court to the judgment of the Ex chequer Court in M.N.R. v. Trottier [1967] 2 Ex.C.R. 268. In this judgment, which was subsequently upheld by the Supreme Court
(Trottier v. M.N.R. [1968] S.C.R. 728), Cat- tanach J. said (at page 278):
Alimony or maintenance continues through the joint lives of the husband and wife but terminates upon the death of either. If Mrs. Trottier had died during the currency of the second mortgage the payments under the second mortgage would continue to be payable to her assignee, if she had assigned it, and otherwise to her heirs, executors or adminis trators in accordance with a covenant in the indenture to that effect. It follows that the periodic payments cannot be classified as payments for maintenance.
Further maintenance is payable for the support of the wife and as such is not assignable by her and neither do such payments, from their very nature, bear-- interest. The payments here under consideration are both assignable and interest bearing under the terms of the second mortgage.
Of course, counsel for the plaintiff argued that the various sums plaintiff was required to pay by the divorce decree did constitute an "allowance payable on a periodic basis for the maintenance of plaintiff's former spouse". He pointed to the terms of the judgment and of the agreement of June 16, 1969, in support of his claim that the sum of $25,000.00 was paid for the maintenance of plaintiff's former spouse. He also argued, on the basis of various diction ary definitions and a decision of the Tax Appeal Board (No. 427 v. M.N.R. 57 DTC 291), that payments are "periodic" when they are to be made one after another on prearranged dates, even if the amounts of the various payments are unequal. Finally, counsel for the plaintiff referred the Court to the judgment delivered by Jackett P., as he then was, in M.N.R. v. Hansen [1968] 1 Ex.C.R. 380.
In my opinion, even assuming that the plain tiff paid the sum of $25,000.00 which he seeks to deduct for the maintenance of his former wife, that sum was still not paid, as required by section 11(1)(n, "as alimony or other allowance payable on a periodic basis ...".
First, it seems clear that the sum of $25,000.00 was not paid "as alimony". The
word "alimony", which, in the French version of section 11(1r, is translated by the expres sion "pension alimentaire", has a narrower meaning than that expression: it refers only to the periodic allowance which, pursuant to a judgment, one spouse must pay the other during the marriage. (See Halsbury's Laws of England, 3rd ed., vol. 12, p. 288.)
Secondly, the sum of $25,000.00 cannot be said to have been paid as an "allowance payable on a periodic basis". In my view, the allowance payable on a periodic basis referred to in sec tion 11(1)(l) is periodic in the same sense as alimony, and alimony is a periodic allowance not only in the sense that the payer must make payments at regular intervals, but also in the sense that at regular intervals the payer must provide a sum adequate to maintain the payee until the next payment. Consequently, a divorce decree which ordered a husband to pay his spouse the sum of $100,000.00 in four monthly instalments of $25,000.00 would not in the normal course be a judgment ordering the pay ment of a periodic allowance within the meaning of section 11(1)0. Moreover, it ahould be noted that the section refers to a sum paid as an "allowance payable on a periodic basis". An allowance is a specific sum of money paid to someone. An allowance is payable on a periodic basis when a specific sum of money is payable at regular intervals. A judgment does not create an obligation to pay an allowance on a periodic basis if it does not require the payer to pay the same sum of money at regular intervals. In the case at bar the divorce decree may impose on the plaintiff an obligation to make certain pay ments on a periodic basis; but it does not require him to make a periodic allowance to his spouse of $25,000.00.
In my view, therefore, plaintiff is not entitled to the deduction he is claiming, and his action should be dismissed.
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