Date: 20020424
Docket: 2001-4268-IT-I
BETWEEN:
STAMATIA MANDAS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasonsfor
Judgment
Bell, J.T.C.C.
ISSUE:
[1]
Whether the sums totalling $4,218.79 expended by the taxpayer,
substantially for the purchase of toys used in the therapy of her
autistic son, Theodore, are medical expenses within the meaning
of section 118.2 of the Income Tax Act entitling the
Appellant to a medical expense credit within the meaning of
subsection 118.2(1)[1].
FACTS:
[2]
The Appellant, intelligent and articulate, testified that in
order to obtain assistance for her autistic son, Theodore, she
discovered an applied behavioural analysis ("ABA")
program designed by a company called Project P.A.C.E. based in
Beaverton, Oregon. She hired P.A.C.A. to design a program for
Theodore, to train individuals hired as therapists to work one on
one with Theodore and to provide periodic workshops to update
training and assess his progress. She stated that the Government
of Ontario has adopted this treatment for six years of age and
younger, this being known as Intensive Behavioural
Intervention.
[3]
The Appellant explained how therapists came to their home
basically using toys to help the establishment of eye contact and
verbal communication. She described the substantial progress made
as a result of this therapy. She said that the therapists brought
some toys but that she acquired other articles to "get his
attention" such as balloons and silly putty.
[4]
The Appellant, in her 1999 taxation year, deducted a
non-refundable medical expense credit arising from medical
expenses in the sum of $11,816.30. Ultimately, the Minister of
National Revenue ("Minister") allowed the medical
expense credit regarding medical expenses of $7,597.00. This left
a total of $4,219.00 in respect of which no medical expense
credit was allowed. It is in respect to this sum that the appeal
was taken.
[5]
The Appellant stated that she and her husband elected to use
alternative care rather than seeking medical care.
[6]
Section 118.2 provides for a medical expense credit. The formula
for establishing same includes, as one component, "medical
expenses that are proven by filing receipts ... with the
Minister". Subsection 118.2(2) sets forth the description
of a number of amounts, each of which constitutes a
"medical expense" for the purpose of the above credit
computation. They include payments to medical practitioners,
dentists or nurses, for attendance and attendant care, nursing
home expenses, school or institutional training, transportation
et cetera. The subsection includes payments for artificial limbs,
diapers, eyeglasses, oxygen tents, animals for the blind, drugs
and medicaments, laboratory diagnostic procedures, health
services premiums et cetera. Specifically, paragraph
118.2(2)(l.8) provided, for 1999, for amounts paid:
(l.8) for reasonable expenses ... to train
... a person related to the individual, if the training
relates to the mental or physical infirmity of a person who
(i)
is related to the individual, and
(ii)
is a member of the individual's household or is dependent
on the individual for support.
The provision for reasonable expenses described in paragraph
(l.8) seems clearly to apply to expenses to train a
handicapped person, referring to services performed rather than
to the costs of physical objects. Therefore, the Appellant cannot
obtain relief under this paragraph.
[7]
Paragraph 118.2(2)(m) provided, for the year in question,
for amounts paid
(m) for any device or
equipment for use by the patient that
(i)
is of a prescribed kind,
(ii)
is prescribed by a medical practitioner,
(iii)
is not described in any other paragraph of this subsection,
and
(iv)
meets such conditions as are prescribed as to its use or the
reason for its acquisition
to the extent that the amount so paid does not exceed the
amount, if any, prescribed in respect of the device or
equipment.
[8]
Section 5700 of the Income Tax Regulations, for the
purpose of paragraph 118.2(m) provides that a device or
equipment is prescribed if it falls within the numerous
paragraphs of that section. They include such things as wigs,
needles or syringes, air or water purifiers, air conditioners,
sealed combustion furnaces, orthopaedic shoes et cetera. Nothing
in that section would relate to toys, being the physical objects
forming the basis of the Appellant's claim. Accordingly, no
relief can be given to the Appellant under paragraph
(m).
[9]
There is no other provision in the above described legislation of
assistance to the Appellant.
[10] The
Appellant's evidence was clearly and very competently
presented. She had excellent credibility. I accept all evidence
presented by her. Unfortunately, the Income Tax Act simply
does not have relief or qualifying provisions elastic enough to
encompass the Appellant's circumstances. She is to be
greatly admired for spearheading the decision to assist her son
in the manner described. She is to be congratulated for her
research in discovering and using the type of assistance which
has obviously been of substantial aid to Theodore. The
legislation, in my opinion, is wanting in this area. It is to be
hoped that appropriate amendments to fill an obvious vacancy will
be made.
[11] The
appeal is dismissed.
Signed at Vancouver, Canada this 24th day of April, 2002.
"R.D. Bell"
J.T.C.C.
COURT FILE
NO.:
2001-4268(IT)I
STYLE OF
CAUSE:
Stamatia Mandas v. The Queen
PLACE OF
HEARING:
Toronto, Ontario
DATE OF
HEARING:
April 8, 2002
REASONS FOR JUDGMENT BY: The
Honourable Judge R.D. Bell
DATE OF
JUDGMENT:
April 24, 2002
APPEARANCES:
For the
Appellant:
The Appellant herself
Counsel for the
Respondent:
Catherine Letellier de St-Just
COUNSEL OF RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-4268(IT)I
BETWEEN:
STAMATIA MANDAS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on April 8, 2002 at Toronto,
Ontario, by
the Honourable Judge R.D. Bell
Appearances
For the
Appellant:
The Appellant herself
Counsel for the
Respondent:
Catherine Letellier de St-Just
JUDGMENT
The
appeal from the reassessment made under the Income Tax Act
for the 1999 taxation year is dismissed, in accordance with the
attached Reasons for Judgment.
Signed at Vancouver, Canada this 24th day of April, 2002.
J.T.C.C.
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