Citation: 2013 TCC 331
Date: 20131022
Docket: 2012-2840(IT)I
BETWEEN:
VINCENZO ARCIRESI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Favreau J.
[1]
This is an appeal, under
the informal procedure, from a reassessment made by Minister of National
Revenue (the Minister) under the Income Tax Act, R.S.C. 1985, c. 1 (5th
Supp.), as amended (the Act), dated September 16, 2010, in respect of the 2009
taxation year.
[2]
By the reassessment of
September 16, 2010, the Minister disallowed $20,002 in medical expenses
used for computing a non-refundable tax credit that the appellant claimed as remuneration for one full-time attendant to care for his
spouse.
[3]
In determining the tax payable
by the appellant, the Minister relied on the following assumptions of fact, set
out at paragraph 9 of the Reply to the Notice of
Appeal:
[Translation]
(a) In filing his tax return for 2009, the appellant claimed $20,002
in medical expenses as remuneration
for one full-time attendant to care for his spouse, Francesca Arciresi;
(b) On or around October 30, 2010, the appellant submitted Form
T2201, “Disability Tax Credit Certificate”, duly completed and signed by Dr. Hélène
Mangamas, who indicated that her patient suffers from asthma, sleep apnea, nocturnal
hyperventilation and exercise-induced hypoxemia upon testing only (decreased level of oxygen in the
blood) and that she has an inability to perform strenuous activities such as housework. The form indicates
that the patient’s ability to perform basic activities of daily living are not markedly
restricted and that it is reasonable to expect her disability to last at least 12
consecutive months;
(c) In response to a request for clarification sent to the treating
physician on or around November 24, 2011, it was confirmed that the patient’s
health had improved and that the patient’s ability to perform basic activities
of daily living were not markedly restricted.
[4]
The issue is whether
the Minister was justified in disallowing the $20,002 the appellant had claimed,
for the 2009 taxation year, in medical expenses as remuneration
for one full-time attendant to care for his spouse because the spouse
did not have a serious and prolonged physical impairment allowing him to claim
such amount pursuant to paragraph 118.2(2)(b)and 118.3(1)(c) and
section 118.4 of the Act.
[5]
The statutory provisions
relevant to this case read as follows:
118.2(2) Medical expenses. For the purposes of subsection 118.2(1), a medical expense of an
individual is an amount paid
(a) . . .
(b) as remuneration for one
full-time attendant (other than a person who, at the time the remuneration is
paid, is the individual’s spouse or common-law partner or is under 18 years of
age) on, or for the full-time care in a nursing home of, the patient in respect
of whom an amount would, but for paragraph 118.3(1)(c), be deductible under section 118.3 in
computing a taxpayer’s tax payable under this Part for the taxation year in
which the expense was incurred;
. .
.
118.3(1)
Where
(a) an individual has one or more severe and prolonged impairments in
physical or mental functions,
. . .
(a.2) in the case of an impairment
in physical or mental functions the effects of which are such that the
individual’s ability to perform a single basic activity of daily living is
markedly restricted or would be so restricted but for therapy referred to in
paragraph (a.1), a medical practitioner has certified in prescribed form
that the impairment is a severe and prolonged impairment in physical or mental
functions the effects of which are such that the individual’s ability to
perform a basic activity of daily living is markedly restricted or would be
markedly restricted, but for therapy referred to in paragraph (a.1),
where the medical practitioner is a medical doctor or, in the case of
(i) a sight impairment, an
optometrist,
(ii) a speech impairment, a speech-language pathologist,
(iii) a hearing impairment, an audiologist,
(iv) an impairment with respect
to an individual’s ability in feeding or dressing themself, an occupational
therapist,
(v) an impairment with respect
to an individual’s ability in walking, an occupational therapist, or after
February 22, 2005, a physiotherapist, and
(vi) an impairment with respect
to an individual’s ability in mental functions necessary for everyday life, a
psychologist,
(c) no amount in respect of remuneration for an attendant or care in a
nursing home, in respect of the individual, is included in calculating a
deduction under section 118.2 (otherwise than because of paragraph 118.2(2)(b.1)) for the year by the
individual or by any other person,
there
may be deducted in computing the individual’s tax payable under this Part for
the year the amount determined by the formula
. .
.
118.4(1) Nature of impairment — For the purposes of
subsection 6(16), sections 118.2 and 118.3 and this subsection,
(a) an impairment is prolonged
where it has lasted, or can reasonably be expected to last, for a continuous
period of at least 12 months;
(b) an individual’s ability to perform a basic activity
of daily living is markedly restricted only where all or substantially all of
the time, even with therapy and the use of appropriate devices and medication,
the individual is blind or is unable (or requires an inordinate amount of time)
to perform a basic activity of daily living;
(b.1) an individual is considered to have the equivalent of
a marked restriction in a basic activity of daily living only where all or
substantially all of the time, even with therapy and the use of appropriate
devices and medication, the individual’s ability to perform more than one basic
activity of daily living (including for this purpose, the ability to see) is
significantly restricted, and the cumulative effect of those restrictions is
tantamount to the individual’s ability to perform a basic activity of daily
living being markedly restricted;
(c) a basic activity of daily
living in relation to an individual means
(i) mental
functions necessary for everyday life,
(ii) feeding
oneself or dressing oneself,
(iii)
speaking so as to be understood, in a quiet
setting, by another person familiar with the individual,
(iv)
hearing so as to understand, in a quiet setting,
another person familiar with the individual,
(v)
eliminating (bowel or bladder functions), or
(vi)
walking;
(c.1) mental functions necessary for everyday life
include
(i) memory,
(ii) problem
solving, goal-setting and judgement (taken together), and
(iii) adaptive
functioning;
(d) for greater
certainty, no other activity, including working, housekeeping or a social or
recreational activity, shall be considered as a basic activity of daily living;
and
(e) feeding
oneself does not include
(i) any of the activities of
identifying, finding, shopping for or otherwise procuring food, or
(ii) the activity of preparing food
to the extent that the time associated with the activity would not have been
necessary in the absence of a dietary restriction or regime; and
(f) dressing oneself does not include any of the
activities of identifying, finding, shopping for or otherwise procuring
clothing.
[6]
The appellant’s spouse
began experiencing physical limitations in 2007. She had fainting episodes
during air travel and suffered broken vertebrae falling down the stairs at home.
She was under the care of two doctors from the Jewish General Hospital of Montréal
who prescribed high doses of cortisone to her to alleviate the pain. In 2009, she
could no longer walk and spent her days lying on the coach. Since she could not
perform housework, the appellant retained the services of a full-time attendant (5 days per week) to take care
of his spouse. She could dress herself, feed herself and walk by herself in the
home.
[7]
In 2010, the appellant
changed doctors and she was under the care of doctors Hélène Mangamas
(respirologist) and Ferrer (oncologist) of the Royal Victoria Hospital. Her
health subsequently improved and she is functioning well.
[8]
To support his
application for a disability tax credit, the appellant filed with the Canada
Revenue Agency (the CRA) two (2) disability tax credit certificates completed and
signed by Doctor Mangamas (T2201), one dated October 30, 2010, and the
other dated October 14, 2011.
[9]
In the certificate of
October 30, 2010, it is indicated that the appellant’s spouse suffers from asthma,
sleep apnea, nocturnal hyperventilation and exercise-induced hypoxemia upon
testing only and that she has an inability to perform
strenuous activities such as housework.
[10]
In the certificate of
October 14, 2011, it is indicated that the appellant’s spouse suffers from
asthma, obesity syndrome and hyperventilation. The effects of the disability
are limitations of exercise tolerance.
[11]
The medical certificates
mentioned above are required by paragraph 118.3(1)(a.2) of the Act,
which makes it a prerequisite to obtaining a credit for impairment. Or at
least that is the view expressed by the Federal Court of Appeal in MacIsaac v.
Canada and Morrison v. Canada, 2000 D.T.C. 6020:
[5] . . .
Section
118.3(1)(a.2) of the Income Tax Act is not merely directory. It is
mandatory. . . .
[12]
Given that no medical
certificate was supplied for the 2009 taxation year, the appellant cannot be entitled
to the credit for impairment. Furthermore, since Doctor Mangamas was not the
treating physician of the appellant’s spouse in 2009, the medical certificates supplied
are not relevant to this case.
[13]
The testimonies heard
and the documents submitted do not make it possible to conclude that the appellant’s
spouse could reasonably be considered to be a person with a severe and prolonged
mental or physical impairment within the meaning of paragraph 118.4(1)(a)
of the Act, namely, a disability lasting for a continuous period of at least twelve
(12) months. The appellant’s spouse certainly suffered from a serious physical
impairment but I do not believe that it can be characterized as a severe
impairment. Even though she could not perform daily activities, the appellant’s
spouse could still dress herself, feed herself and walk by herself. Moreover, the
physical impairment of the appellant’s spouse was of limited duration.
[14]
In the circumstances,
the appellant is not entitled to a deduction as remuneration
for one full-time attendant to care for his spouse within the meaning of
paragraph 118.2 of the Act.
[15]
For these reasons, the appeal
is dismissed.
Signed at Ottawa,
Canada, this 22nd day of October 2013.
“Réal Favreau”
Translation certified true
on this 6th day of December 2013
Daniela Guglietta,
Translator
Email this Content