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Citation: 2003TCC916
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Date: 20031219
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Docket: 2003-1845(IT)I
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BETWEEN:
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THOMAS PAT RILEY,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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____________________________________________________________________
REASONS FOR JUDGMENT
Beaubier, J.
[1] This appeal pursuant to the
Informal Procedure was heard at Nanaimo, British Columbia on
November 25, 2003. The Appellant testified. He was the only
witness.
[2] Paragraphs 3 to 9 inclusive of the
Reply to the Notice of Appeal set out the matters in dispute.
They read:
3. In
computing non-refundable tax credits for the 2001 taxation year,
the Appellant claimed a Disability Tax Credit ("DTC")
of $6,000.00.
4. By
assessment dated August 9, 2002, the Minister of National Revenue
(the "Minister") disallowed the claimed DTC for the
Appellant's 2001 taxation year.
5. The
Appellant objected to the assessment by serving on the Minister a
Notice of Objection dated November 28, 2002.
6. The
Minister responded to the objection by issuing a Notice of
Confirmation dated January 10, 2003.
7. In so
assessing the Appellant, the Minister relied on the following
assumptions of fact:
a) the
Appellant's doctor, Dr. W. Phipps, completed a Disability Tax
Credit Certificate (the "Certificate") in respect of
the Appellant;
b) Dr. Phipps
indicated in the Certificate that the Appellant is blind in his
left eye;
c) Dr. Phipps
did not indicate in the Certificate that the Appellant's
ability to walk is markedly restricted;
d) in the 2001
taxation year, the Appellant did not suffer from an impairment
which caused him to be unable to walk all or substantially all of
the time;
e) the
Appellant was able to, and did not require an inordinate amount
of time to perform the basic activities of daily living,
including walking; and
f) the
Appellant had a medical condition which did not cause him to be
markedly restricted in his basic activities of daily living in
2001.
B. ISSUES
TO BE DECIDED
8. The issue
is whether the Appellant is entitled to claim a DTC as a
non-refundable tax credit for the 2001 taxation year.
C.
STATUTORY PROVISIONS RELIED ON
9. He relies
on sections 118.3 and 118.4 of the Income Tax Act, R.S.C.
1985, c. 1 (5th Supp.), as amended for the 2001 taxation year
(the "Act").
[3] Assumptions 7 a), b) and c) were
not refuted by the evidence. The Appellant's left knee was
operated on and replaced on December 18, 2000.
[4] After March, 2001 and certainly
after April, 2001, the Appellant could walk within the meaning
set out in the Income Tax Act.
[5] Dr. Phipps filled the Certificate
out incorrectly in question 1, respecting the Appellant's
eyesight. Moreover, the Appellant's hearing is bad and has
been for two or three years. He could not hear Respondent's
counsel's questions without frequent repetition. His left eye
is blind, he has lost his left hand and his left knee has been
replaced.
[6] Cumulatively, in the Court's
view, the Appellant is marginal respecting his disability,
although it appears that each handicap, taken alone, falls
outside of the Certificate's criteria for 2001.
[7] Thus, the appeal is dismissed for
2001. However, the Appellant is encouraged by the Court to
continue to apply. He is a proud, honest, self-reliant man. He
was born in 1934 and the Court has no doubt that all of the
problems, given advancing age, will combine to fulfil the
criteria of the Income Tax Act for the disability tax
credit in due course.
[8] The appeal is dismissed. The
Appellant is of modest means. Henceforth, any appeal by him based
on similar circumstances, should be presented without the
necessity for payment of the Court's fee.
Signed at Saskatoon, Canada, this 19th day of December
2003.
Beaubier, J.
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