Canada v. Swantje
A-144-94
Marceau J.A.
26/9/94
5 pp.
Application to set aside Tax Court decision excluding German pension from income -- Respondent receiving Canadian pension under Old Age Security Act, German pension in 1990, 1991 -- German pension exempt from taxation under treaty -- Included in income pursuant to Income Tax Act, ss. 56(1)(a), 81(1)(a), but deducted under s. 110(1)(f) -- Canadian pension subject to taxation pursuant to s. 180.2 -- Amount of income, tax owed varying according to whether German pension included -- Respondent excluding German pension from income on basis exempt from tax pursuant to treaty -- Minister including German pension -- Tax Court holding s. 180.2 imposing tax on amounts declared to be exempt by treaty, and treaty must prevail -- Application allowed -- Part I.2 providing for repayment of benefits received under Family Allowances Act, Old Age Security Act to extent taxpayer's income in excess of $50,000 (indexed) threshold -- Respondent's tax liability under s. 180.2 affecting only Canadian pension income -- German pension used to calculate amount of tax owed, representing repayment of Canadian benefits received -- Repayment deductible in computation of taxable income pursuant to s. 69(w) to ensure recaptured benefits not taxed as income -- Part I.2, completed by s. 60(w), realizing repayment of social benefits by taxpayers who, because of higher incomes, have less need of them -- Minister's reassessment not imposing tax on German pension -- Income Tax Act, S.C. 1970-71-72, c. 63, ss. 56(1)(a) (as am. by S.C. 1980-81-82-83, c. 140, s. 26; 1983-84, c. 1, s. 23; 1987, c. 46, s. 15; 1991, c. 49, s. 32), 60(w) (as enacted by S.C. 1990, c. 39, s. 12), 81(1)(a) (as am. by S.C. 1980-81-82-83, c. 140, s. 46), 110(1)(f) (as am. by S.C. 1980-81-82-83, c. 140, s. 65; 1988, c. 55, s. 77; 1991, c. 49, s. 78), 180.2 (as enacted by S.C. 1990, c. 39, s. 48; 1991, c. 49, s. 144) -- Canada-Germany Tax Agreement Act, 1982, S.C. 1980-81-82-83, c. 156.