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Citation: 2003TCC151
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Date: 20030808
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Docket: 2002-3451(IT)I
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BETWEEN:
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LARRY E. YOUNG,
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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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____________________________________________________________________
AMENDED REASONS FOR JUDGMENT
Little, J.
A. FACTS:
[1] The
Appellant testified that he suffers from the following ailments:
- severe migraines,
- vascular dementing headaches,
- back pain due to spinal deterioration,
- tennis elbow and arthritis, and
- various other physical impairments
[2] The
Appellant said that he is required to go to the medical clinic approximately
six times per year in connection with these medical problems. The Appellant also
said that his doctor has provided him with medication that enables him to
function normally.
[3] The
Appellant said that during the 1996, 1997, 1998 and 1999 taxation years he was
responsible for the care of his mother, Connie Young. The Appellant said that
his mother died on the 6th day of December 1999.
[4] When
the Appellant computed his income tax liability for the 1996, 1998, 1999 and
2000 taxation years he claimed the following:
(a) a personal
credit for his mother since he maintained that she was a wholly dependent
person. The Appellant claimed the following amounts with respect to his mother:
1996 $5,380.00
1998 $5,380.00
1999 $5,718.00
(b) the credit for
mental or physical impairment for himself. The Appellant claimed the following
amounts:
1999 $4,233.00
2000 $4,293.00
[5] In
assessing the Appellant for the 1996, 1998, 1999 and 2000 taxation years the
Minister of National Revenue (the "Minister") made the following
adjustments:
(a) allowed a
personal credit for a wholly dependent person in respect of the Appellant's
mother in the amount of $5,380.00 for the 1996 and 1998 taxation years.
(b) disallowed the
claim for a personal credit for a wholly dependent person in respect of the
Appellant's mother in the amount of $5,718.00 for the 1999 taxation year.
AND
(c) disallowed the
claim for the credit for mental or physical impairment for the Appellant in the
amount of $4,233.00 for the 1999 taxation year and $4,293.00 for the 2000
taxation year.
[6] The
Minister issued a subsequent Notice of Reassessment on August 17, 2001 to
disallow the claim of $5,380.00 in respect of the Appellant's mother for the
1998 taxation year. (Note: The claim made by the Appellant in the amount of
$5,380.00 in respect of the Appellant's mother for the 1996 taxation year has
never been disallowed by the Minister.)
B. ISSUES:
[7] 1) Is
the Appellant entitled to claim a personal credit for a wholly dependent person
in respect of his mother in the amount of $5,380.00 for the 1998 taxation year and
$5,718.00 for the 1999 taxation year?
2) Is the Appellant entitled to claim a credit for mental
or physical impairment in respect of himself in the amount of $4,233.00 for the
1999 taxation year and $4,293.00 for the 2000 taxation year?
C. ANALYSIS:
1. Re: Wholly dependent person
[8] Paragraph
118(1)(b) of the Income Tax Act (the "Act")
permits an individual taxpayer, who does not claim the married amount under
paragraph 118(1)(a) to claim an equivalent amount for a wholly
dependent person if certain conditions are met. The taxpayer may not make the
claim if the income of the dependent person exceeded a certain "base
number". For the purposes of this claim the base number in 1998 was
$5,918.00 and the base number in 1999 was $6,290.00.
[9] Counsel
for the Respondent filed a copy of the Appellant's mother's income tax return
for the 1999 taxation year (Exhibit R-1). The tax return was prepared and filed
by the Public Trustee of Alberta and it indicated that the Appellant's mother
had received income of $16,623.57 in 1999. The amount of $16,623.57 was made up
of a Canada Pension Plan payment, Old Age Security payment, other pension
income, interest and some royalty income from Amoco.
[10] At my request, counsel for the Respondent obtained information from
the Public Trustee of Alberta re. Connie Young's 1998 taxation year. By letter
dated the 7th day of March 2003, Ms. Bining of the Department of Justice
advised the Court that the Public Trustee of Alberta had stated that Mrs.
Young's net income for the 1998 taxation year was in excess of $16,000.00.
(Note: The Appellant was provided with a copy of Ms. Bining 's letter to the
Court.)
[11] The Appellant said that the Public Trustee of Alberta had, pursuant to
a Court order, seized control of his mother's income in 1997. The Appellant
admitted that the Public Trustee of Alberta had paid a number of expenses for
his mother in 1998 and 1999. The Appellant stated that he was also required to
pay certain expenses for his mother in 1998 and 1999.
[12] In view of the income received by the Appellant's mother in the 1998
and 1999 taxation years, I find that the Appellant is not entitled to claim a
personal credit for a wholly dependent person in those years.
2. Disability Tax Credit
[13] Paragraph 118.3(1)(a.1) of the Act provides that a
taxpayer is entitled to a credit for mental or physical impairment where:
(a) an individual has a severe and
prolonged mental or physical impairment,
(a.1) the effects of the impairment
are such that the individual's ability to perform a basic activity of daily
living is markedly restricted,
(a.2) a medical doctor, or where the
impairment is an impairment of sight, a medical doctor or an optometrist, has
certified in prescribed form that the individual has a severe and prolonged
mental or physical impairment the effects of which are such that the
individual's ability to perform a basic activity of daily living is markedly
restricted,
(b) the individual has filed for a
taxation year with the Minister the certificate described in paragraph (a.2).
[14] Section 118.4 of the Act defines the nature of impairment in
the following terms:
118.4: Nature of impairment.
(1) For the
purposes of subsection 6(16), sections 118.2 and 118.3 and this subsection,
(a) an
impairment is prolonged where it has lasted, or can reasonably be expected to
last, for a continuous period of at least 12 months;
(b) an
individual's ability to perform a basic activity of daily living is markedly
restricted only where all or substantially all of the time, even with therapy
and the use of appropriate devices and medication, the individual is blind or
is unable (or requires an inordinate amount of time) to perform a basic
activity of daily living;
[15] In this situation the issue is to determine whether the Appellant's
physical impairment comes within the provisions of the Act.
[16] The Appellant filed a Disability Tax Credit Certificate (the
"Certificate") signed by his physician, Dr. Blackie Swartzs (Exhibit
A-1).
[17] Part B of the Certificate contains questions relating to the
taxpayer's impairment. The Appellant answered "YES" to all questions.
In other words there were no impairments noted in the Certificate that applied
to the Appellant.
[18] The Certificate also contained the following comment under the heading
"Diagnosis":
Severe migraines and vascular
dementing headaches. With Maxault, within two hours he can function normally.
[19] In order to qualify under sections 118.3 and 118.4 of the Act
the Appellant must be markedly restricted in his ability to perform a basic
activity of daily living. Our courts have said that the test is that a person
must be markedly restricted "all or substantially all of the time".
Our courts have said that the phrase "all or substantially all" means
90% or more.
[20] The Appellant testified that he was required to go to the Clinic
approximately six times per year to obtain relief from his severe migraines and
vascular dementing headaches. As noted above Dr. Swartzs stated in the
Certificate that after taking the medication, Maxault, the Appellant can
function normally.
[21] In my opinion the Certificate provided by the Appellant and the
evidence presented by the Appellant do not establish that the Appellant was
suffering from a prolonged physical impairment all or substantially all of the
time. I have therefore concluded that the Appellant is not entitled to claim
the disability tax credit in the 1999 and 2000 taxation years.
[22] The appeals for the 1998, 1999 and 2000 taxation years are dismissed,
without costs.
[23] The appeal filed for the 1996 taxation year is dismissed because
the Notice of Reassessment issued for the 1996 year was a NIL Assessment. The
law is clear that a taxpayer cannot file an appeal to a NIL Assessment.
Signed at Vancouver, British Columbia, this
8th day of August 2003
Little,
J.
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