2001-4155(IT)I
BETWEEN:
LAWRENCE JOHNSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on September 30, 2002, at Prince
George, British Columbia, by
the Honourable Judge L.M. Little
Appearances
Counsel for the
Appellant: The
Appellant himself
Counsel for the Respondent: Amy
Francis
JUDGMENT
The
appeal from the assessment made under the Income Tax Act
for the 1999 taxation year is allowed, without costs, and
the assessment is referred back to the Minister of National
Revenue for reconsideration and reassessment on the basis that
the Appellant be allowed to deduct the cost of the hot tub in the
amount of $6,549.02 in accordance with the attached Reasons for
Judgment.
Signed at Vanvouver, British Columbia, this 21st day of
January 2003.
J.T.C.C.
Date: 20030121
Docket: 2001-4155(IT)I
BETWEEN:
LAWRENCE JOHNSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Little, J.
FACTS:
[1] The Appellant suffers from a
chronic low back pain.
[2] The Appellant testified that in
1973 he injured his back while he was at work. The Appellant was
employed by Canadian Forest Products Ltd. ("Canfor")
and he worked at a sawmill owned by Canfor.
[3] The Appellant also testified that
a further injury to his back occurred as a result of an
automobile accident in 1983. The Appellant also stated that he
had an automobile accident in the year 1999 which increased the
discomfort suffered by him in his chronic back pain.
[4] The Appellant testified that in an
attempt to relieve his back pain he purchased a hot tub on the
recommendation of his doctor, Dr. Edgar Tussler. The cost of the
hot tub was $5,927.97 plus additional equipment at a cost of
$170.95 plus $450.10 for a total of $6,549.02.
[5] The Appellant testified that in an
attempt to relieve the severe pain and to treat other medical
problems he incurred the following expenses:
-
massage therapy - November and December
1999
$463.00
-
tanning fees - February, March and September
1999 320.86
-
gym membership - 1999
year
384.60
-
use of public swimming pool -
1999
204.65
-
electrodes for a TENS
unit
44.40
-
vitamins and non prescription
drugs
307.86
-
herbs and other substances
[6] When the Appellant filed his
income tax return for the 1999 taxation year, he claimed medical
expenses in the amount of $13,210.00.
[7] By Notice of Reassessment dated
the 4th day of January 2001 the Minister of National Revenue (the
"Minister") reassessed the Appellant to disallow
medical expenses of $10,302.00.
[8] By Notice of Reassessment dated
the 16th day of February 2001 the Minister reassessed the
Appellant to disallow a further $345.00 of the medical expenses
that were claimed by the Appellant.
B. ISSUE:
[9] Is the Appellant entitled to
deduct the medical expenses totalling $10,302.00 plus $345.00 in
determining his income for the 1999 taxation year?
C. ANALYSIS:
[10] As noted above, one of the largest
items making up the medical expenses that have been disallowed
was the purchase of the hot tub plus the related equipment.
[11] The Appellant testified that he finds
it virtually impossible to move in the morning without the use of
the hot tub
[12] In Gibson v. R., [2001] 1 C.T.C.
2054, His Honour Judge Mogan of the Tax Court of Canada dealt
with a taxpayer's attempt to deduct the cost of a whirlpool
spa ($8,761.49) as a medical expense. At page 2057, paragraph 6,
Mogan J. said:
... The Appellant was emphatic in stating that the tub was not
a recreational device for her family and that it really did help
loosen up the muscles in her neck and arms.
At page 2059, paragraphs 12 and 13, Mogan J. said:
I accept the Appellant's credible and uncontradicted
evidence that she purchased the hot tub only for the purpose of
hydrotherapy and relief of pain. In particular, I find that it
was not intended to be and has not been a recreational device for
her family. The Appellant uses the hot tub everyday for the
relief of pain and, for all practical purposes, she uses it
alone. The hot tub loosens up her muscles, reduces her pain, and
on many days she could not work without it. With respect to
domestic work in her home and performing her profession as a
school teacher, her mobility is dependent upon her regular use of
the hot tub.
... I find that the cost of installing the hot tub was a
"reasonable expense" within the meaning of paragraph
118.2(2)(I.2).
[13] Judge Mogan's decision in
Gibson was appealed to the Federal Court of Appeal and his
decision was upheld. (See Gibson v. R., [2002] 1
C.T.C. 147).
[14] The Appellant testified that the daily
use of the hot tub made it possible for him to be mobile or to
function.
[15] I accept the Appellant's testimony
in connection with the mobility that he obtains from the daily
use of the hot tub and I find that the facts in this situation
are very similar to the facts in the Gibson decision.
[16] The Appellant's appeal will be
allowed to permit the deduction of the cost of a hot tub.
[17] Unfortunately, I am not persuaded that
the other expenses as outlined above in paragraph 5 should be
allowed as medical expenses. In reaching this conclusion I have
reviewed and I agree with the comments of Judge MacArthur in
Melnychuk v. R., [2002] 2 C.T.C. 2389 and Associate Chief
Judge Bowman in Banman v. R., [2001] 2 C.T.C. 2111.
[18] The appeal is allowed, without costs,
and the assessment is referred back to the Minister of National
Revenue for reconsideration and reassessment on the basis that
the Appellant is allowed to deduct the amount of $6,549.02.
Signed at Vancouver, British Columbia, this 21st day of
January 2003.
J.T.C.C.
COURT FILE
NO.:
2001-4155(IT)I
STYLE OF
CAUSE:
Lawrence Johnson and
Her Majesty the Queen
PLACE OF
HEARING:
Prince George, British Columbia
DATE OF
HEARING:
September 30, 2002
REASONS FOR JUDGMENT BY: The Honourable
Judge L.M. Little
DATE OF
JUDGMENT:
January 21, 2003
APPEARANCES:
For the
Appellant:
The Appellant himself
Counsel for the Respondent: Amy
Francis
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
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