Tax Court of Canada

Social Welfare

Old Age Security
Amount referred back to tribunal to determine Guaranteed Income Supplement eligibility

Minister determined taxpayer’s income for purposes of determining his eligibility under Old Age Security Act (Can.) to Guaranteed Income Supplement (GIS), assessing his Italian pension income and including his wife’s social assistance payments from Italy. Taxpayer appealed. Social Security Tribunal referred question of taxpayer’s income for 2010-2012 to Tax Court of Canada. Appeal allowed in part, only to extent of Minister’s concession on 2012 income. Taxpayer presented documents from Italy indicating his pension income was slightly less than amount relied upon by Minister, which was also derived from Italian report from same institution. As amount would make little, if any, difference to taxpayer’s entitlement to GIS, there was no need to change Minister’s determination. Taxpayer’s income for purpose of GIS entitlement was based on his and wife’s income, calculated in accordance with Income Tax Act (Can.) (ITA) subject to exceptions for social assistance payment from charity or federal or provincial program which did not include foreign social assistance. Section 56(1) of ITA specified that social assistance payments based on means, needs or income, including from foreign source, were to be included in income as were payments under foreign retirement arrangements unless they were not subject to tax in that country. As wife’s evidence that payments she received were not subject to tax in Italy was accepted, issue was whether they “foreign retirement arrangement” as contemplated by s. 56(1)(a)(i)(C.1) of ITA such that it would not be included in income. Wife effectively answered this question by describing difference between taxpayer’s pension which he had contributed to compared to her means or income-based social assistance payment. Wife’s description of payment exactly matched description in s. 56(u) of ITA as social assistance payment made on basis of means, needs, or income test, rather than as retirement arrangement, so payments were to be included in determining taxpayer’s GIS entitlement. Minister indicated that wife’s income had been incorrectly determined for one year at $8,053 when it was in fact only $6,711. Minister’s income determinations for 2010 and 2011 were accepted and determination for 2012 would be altered to reflect decrease, leading combined income of $15,950.29 for that year. Amount referred back to tribunal for purposes of determining GIS eligibility. 

Fang v. R. (July 5, 2016, T.C.C., Campbell J. Miller J., 2016-398(OAS)) 268 A.C.W.S. (3d) 233.

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