Citation: 2012TCC319
Date: 20120907
Docket: 2011-3778(IT)I
BETWEEN:
OSWALD F. ROBERTS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
AMENDED REASONS FOR JUDGMENT
(Delivered orally from the bench on July 13, 2012, in Toronto, Ontario.)
These Reasons for Judgment are issued in
substitution for the
Reasons for Judgment dated September 7, 2012
The only amendment to these Reasons is the addition
of the name of Counsel for the Respondent
V.A. Miller J.
[1]
This appeal relates to
Mr. Roberts’ 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2009 and 2010 taxation
years. The issue is whether Mr. Roberts can claim a medical expense tax credit
for the fees he paid to the YMCA and the JCC in these years. An ancillary issue
is whether the Appellant has the documentation to support an additional amount
of $672 which he claimed as medical expenses in 2009.
[2]
At the beginning of the
hearing, counsel for the Respondent conceded that the amount of $672 was a
medical expense in 2009 and the appeal should be allowed to that extent.
Preliminary
[3]
As a preliminary
matter, counsel for the Respondent asked that the appeal for the 2001, 2002,
2003, 2004, 2005, 2006 and 2007 taxation years be quashed as the Appellant did
not serve the Minister of National Revenue (the “Minister”) with a Notice of
Objection as required by subsection 165(1) of the Income Tax Act (the “Act”)
for these years. As well, the Appellant did not apply for an extension of time
to object within the period allowed by subsection 166.1(7) of the Act.
In support of its position, counsel filed the affidavit of Maria Paskaris, an
officer in the Toronto Litigation Office of the Canada Revenue Agency (the “CRA”).
[4]
The affidavit disclosed
the following:
|
Year
|
Assessed
|
Reassessed
|
90 day
period
|
One
year
|
|
2001
|
|
June 22, 2006
|
September 20,
2006
|
September 20, 2007
|
|
2002
|
|
May 5, 2003
|
August 5, 2003
|
August 5, 2004
|
|
2003
|
April 29, 2004
|
Nil assessment
|
|
|
|
2004
|
July 14, 2005
|
Nil Assessment
|
|
|
|
2005
|
March 30, 2006
|
|
|
June 15, 2007
|
|
2006
and 2007
|
|
August 27,2009
|
November 25, 2009
|
November 25, 2010
|
[5]
The Appellant objected
to all of the above reassessments on April 12, 2011 and he was notified that
his objection was made beyond the limitation period and could not be accepted.
[6]
It is a prerequisite
that a taxpayer must serve a notice of objection on the Minister within one
year and ninety days of either the reassessment date or his filing date,
whichever is applicable in the circumstances, before he can appeal to the Tax Court
of Canada[1].
This was not done for the years 2001, 2002, 2003, 2004, 2005, 2006 and 2007.
[7]
The Respondent’s motion
to quash is granted.
Medical Expense
[8]
In 1992 the Appellant
was diagnosed with prostate cancer. His physician recommended that, both
pre-surgery and post operatively, the Appellant should participate in an
exercise program to assist him to cope with the side effects of surgery. On
October 9, 1992, the Appellant had radical prostatectomy.
[9]
After surgery, the
Appellant suffered with incontinence. He continued his exercise program by
purchasing a membership at the Jewish Community Centre (“JCC”); and, in 2009,
he became a member of the YMCA. His membership fees were:
|
|
2009
|
2010
|
|
JCC
|
$ 453
|
|
|
YMCA
|
724
|
$1,235
|
|
Total
|
$1,177
|
$1,235
|
[10]
According to
correspondence from the Appellant’s physician, the Appellant’s symptoms of
incontinence decreased dramatically since he joined the JCC/YMCA.
[11]
It is the Appellant’s
position that these amounts should be allowed as medical expenses for the
following reasons: (a) He became a member of these organizations on the
recommendation of his physician that he participate in an exercise program. (b)
Both the JCC and the YMCA are registered charities. (c) On the website for the
CRA, T2201 states in part: “Recreational programs offered by a public sector
body that is for persons with disabilities provided on an on-going basis at a
community centre qualifies as a medical expense.” (d) The Appeals Division
Sudbury Tax Services Office allowed him to claim his membership fees at the JCC
as a medical expense for 2008.
[12]
The definition of
“medical expense” in subsection 118.2(2) of the Act lists the specific
types of costs that are eligible for the medical expense tax credit. This list
is exhaustive and only the cost of those items listed will qualify as a medical
expense. As was clearly stated by the Federal Court of Appeal in Ali v.
Canada, 2008 FCA 190 at paragraph 17:
With
respect to the legislative scheme at issue in this case, the definition of
“medical expense” in subsection 118.2(2) of the ITA contains an enumeration of
the specific types of costs that are eligible for the METC. This indicates a
legislative purpose of limiting the availability of the METC to a specific list
of items.
[13]
None of the paragraphs
in subsection 118.2(2) lists the costs of a membership to a health club as a
medical expense. It is my view that this means that the membership fees for a
health club is not considered to be a medical expense for the purposes of the Act.
[14]
With respect to the
Appellant’s second reason that both the JCC and the YMCA are charitable
organizations, this has no bearing on whether the fees for membership at these
organizations are medical expenses.
[15]
In his Notice of
Appeal, the Appellant made a statement which he says is a quote from the
website of CRA. He listed the quote as part of T2201.
[16]
The T2201 is the
Disability Tax Credit application and certification form. It applies to a tax
credit which is separate from the medical expense tax credit. The disability
tax credit applies to individuals who have a “severe and prolonged mental or
physical impairment” as certified by a medical practitioner. However, the
medical expense tax credit applies to individuals who have sustained
significant medical expenses. The T2201 has no application to the facts of this
appeal.
[17]
Lastly, the Appellant
submitted that the cost of his 2008 health club membership was allowed as a
medical expense and on the basis he should be allowed a medical expense for the
costs of his 2009 and 2010 health club membership.
[18]
CRA does not have to
assess all of the Appellant’s taxation years in exactly the same manner. As
Boyle J. opined in Couture v. Canada, 2008 TCC 171 at paragraph 10:
Unfortunately
for Ms. Couture, CRA's assessment of an individual in one taxation year does
not in any way preclude it from reconsidering and taking a different position
in other taxation years.
[19]
Regrettably, I must
dismiss the Appellant’s appeal with respect to the membership fees he paid to
the JCC and the YMCA in the 2009 and 2010 taxation years. In the 2009 taxation
year, the Appellant incurred a medical expense in the amount of $672 and the
appeal is allowed to that extent.
Signed at Ottawa, Canada, this 20th day
of September 2012.
“V.A. Miller”
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