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Citation: 2003TCC493
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Date: 20030715
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Docket: 2002-3391(IT)I
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BETWEEN:
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ANITA M. HOPE,
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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
Little, J.
A. FACTS:
[1] The Appellant was diagnosed with
Scoliosis of the spine in 1995 (the "Medical
Condition").
[2] The Medical Condition has affected
the Appellant's back and hips and has restricted her motion
in her everyday activities.
[3] The Appellant consulted with her
family physician and an orthopaedic specialist and was advised
that she would obtain relief and be able to continue to work at
her home and her job at the Kinsmen Senior Centre if she had
regular massage therapy and heat applied to the spine.
[4] The Appellant purchased a spa and
hot tub at a cost of $4,999.00 and a gazebo at a cost of
$5,500.00.
[5] The Appellant testified that the
gazebo in which the hot tub was located was attached to her
house. The Appellant said that since the hot tub was protected by
the gazebo she could use the hot tub 12 months of the year.
[6] The Appellant also testified that
she incurred the following additional expenses in connection with
the hot tub:
Installation Cost (Special Electrical
Panel)
$1,280.00
Additional Support for
Deck
$3,000.00
[7] When the Appellant filed her
income tax return for the 2000 taxation year she claimed the
following medical expenses:
Cost of
Spa
$4,900.00
Cost of
Gazebo
$5,500.00
Installation
Costs
1,280.00
Miscellaneous
69.66
Total
$11,749.73
[8] By Notice of Reassessment
dated the 22nd day of October 2001 the Minister reassessed the
Appellant's 2000 taxation year and the medical expenses that
she had claimed were disallowed.
[9] By a Notice of Reassessment
dated the 1st day of February 2002 the Minister allowed the
installation cost of $1,280.86 but disallowed the cost of the spa
and the cost of the gazebo.
B. TAX ISSUE:
[10] Is the Appellant allowed to
deduct the cost of the hot tub and gazebo as a medical expense in
determining her income for the 2000 taxation year?
C. ANALYSIS:
[11] The agent for the Appellant filed a
number of documents in support of the Appellant's claim
(Exhibit A-7).
[12] Dr. Judith E. Fletcher wrote a memo for
the Appellant on August 10, 2000. Dr. Fletcher's
memo contained the following statement:
Please be aware that I am Anita's family physician and I
have advised her for medical reasons to have a hot tub at
home.
[13] In a memo dated November 12, 2002 Dr.
Mark Adrian, an orthopaedic surgeon, stated:
Ms. Hope has a spinal deformity which is painful. She is able
to improve her function with the hydro spa and therefore it
appears reasonable for her to continue using it for medical
purposes.
[14] Section 118.2 of the Income Tax
Act (the "Act") entitles an individual to a
medical expense credit. In particular, paragraph (m) of
subsection 118.2(2) allows for a credit in respect of any device
or equipment for use by the patient that is of a prescribed kind,
(i.e. prescribed by Regulation), is prescribed by a medical
practitioner and that meets such conditions as are prescribed as
to its use or the reason for its acquisition.
[15] Regulation 5700 of the Act
provides that for the purposes of
paragraph 118.2(2)(m) a device or equipment is
prescribed if it is (a) a device that is designed to assist an
individual in walking where the individual has a mobility
impairment.
[16] The Courts have frequently been asked
to determine if an amount paid for a hot tub is a medical
expense:
(a) In Clark v. R., [1999] 4 C.T.C.
2005 (T.C.C. [Informal Procedure]), the Tax Court held that since
a hot tub is not a device or equipment that is of a prescribed
kind pursuant to Regulation 5700 its cost does not qualify for
the medical expense credit.
(b) In Craig v. R., [1996] 3 C.T.C. 2037 (T.C.C.),
the Tax Court held that paragraph 118.2(2)(1.2) of the Act
which refers to modifications that assist an impaired person in
moving into a dwelling or moving about the dwelling was oriented
towards the transportation of a person rather than ensuring a
person's well-being. Thus the expense was not a medical
expense of the type described in that section. Further, in that
case it was held that the acquisition of the hot tub had not been
prescribed by a medical practitioner and consequently the expense
could not be allowed on that ground. This case further determined
that subparagraph 118.2(2)(m)(i) did not apply as
there was no evidence that the hot tub was designed to assist the
individual in walking, i.e. mobility.
(c) In Graumann v. R., [2002] 4.
C.T.C. 2556 Judge Miller of the Tax Court said at paragraph
13:
The second requirement of Regulation 5700(i) is
that the device itself is designed to assist an individual in
walking. Clearly, Ms. Graumann experiences pain, stiffness and
numbness and the hydrotherapy unit does assist in the relief of
those ills. The main purpose of the unit, however, is not to
allow Ms. Graumann to walk. Notwithstanding the considerable
respect Ms. Graumann garners for what she has accomplished, I
cannot in this case stretch the common-sense meaning of "a
device to assist in walking" to this hot tub. It is designed
to soothe, to relax muscles and to relieve pain perhaps. Its
design in this case is not aimed at Ms. Graumann's walking
ability. Its design, which Ms. Graumann acknowledged, is
more geared for her neck and back, and the results in this regard
were most satisfactory. The relief provided did allow Ms.
Graumann to function in a working environment. It cannot be said
though that the design of the tub assisted her walking, which was
not impaired.
(d) Paragraph 59 of Interpretation Bulletin
IT-519R2 comments upon the medical expense credit. Paragraph 59
states that "if a medical practitioner prescribes treatments
in, for example, a hot tub or a whirl pool bath, the cost of the
treatment qualifies as a medical expense under
paragraph 118.2(2)(a) if paid for example to a public
or licensed private hospital. However, if a hot tub or whirl pool
bath is purchased the cost does not qualify as a medical expense
since it is not prescribed in ... the Regulations". Although
Interpretation Bulletins are not law, they are entitled to weight
and can be an important factor in the process of proper
interpretation.
[17] I have concluded that the cost of the
hot tub and the cost of the gazebo do not meet the requirements
of Regulation 5700 and consequently the appeal must be dismissed,
without costs.
Signed at Vancouver, British Columbia, this 15th day of July
2003
Little, J.
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