Gordon v. The Queen, docket 98-1553-IT-I (Informal Procedure)

Date: 20000229

Docket: 98-1553-IT-I

BETWEEN:

JOSEPH GORDON,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Judgment

Beaubier, J.T.C.C.

[1] This appeal pursuant to the Informal Procedure was heard at Kelowna, British Columbia on February 18, 2000. The Appellant was the only witness. He has appealed a reassessment respecting his 1996 taxation year. Paragraphs 3 to 6 of the Reply to the Notice of Appeal read:

3. In computing income for the 1996 taxation year, the Appellant claimed $8,000.00 as a medical expense.

4. In assessing the Appellant for the 1996 taxation year by way of Notice of Assessment dated August 18, 1997, the Minister of National Revenue (the "Minister") disallowed the $8,000.00 claimed as a medical expense.

5. In so assessing the Appellant, the Minister made the following assumptions of fact:

(a) the Appellant renovated his home to accommodate the installation of a hot tub;

(b) the Appellant completed a medical expense schedule and claimed as a medical expense $8,000.00 paid to Valley Pool for the hot tub;

(c) the purchase of the hot tub was to assist the Appellant's spouse, Julie;

(d) the hot tub was not a device or equipment designed to assist individuals in walking where the individual has a mobility impairment; and

(e) a hot tub is not a device or equipment of a prescribed kind.

B. ISSUES TO BE DECIDED

6. The issue is whether the Appellant was entitled to deduct the $8,000.00 cost of the hot tub as a medical expense within the meaning of subsections 118.2(1) and 118.2(2) of the Income Tax Act (the "Act").

[2] Assumptions 5(a) to (c) are correct. The remaining matters are in dispute.

[3] The hot tub was prescribed on a prescription by Julia Gordon's general practitioner, Dr. Brian Warrender on September 23, 1996 (Exhibit A-1). Julia was in an auto accident in 1992 and following that suffered severe rheumatologic disorders including fibromyalgia, inflammatory osteoarthitis, Achilles tendonitis and lateral epicondylitis. As a result, she would wake in the night in pain, could not move in the morning without help and required hot baths at physiotherapy facilities located ten miles from her home twice each day. The solution was prescribed to be the hot tub in which she sits and exercises each morning, later in the day, and often in the evening in order to loosen up. It is not a cure. It is palliative.

[4] The hot tub acquired has extra features. It has adjustable jets for her upper and lower back, guard rails and temperature controls that can be used in the tub. It is large and Julia does prescribed exercises in it. Mr. Gordon testified that he has only sat in it once, but that one or another of their three children sit in it with their mother from time to time.

[5] Julia is a registered nurse and worked full time before the accident. She has not worked since and is on C.P.P. disability. She also takes three prescribed drugs for the problems described.

[6] The appeal is for a deduction for the price of the tub as installed pursuant to the prescription of a "medical expense" under paragraphs 118.2(2)(l.2) and (m) which read:

118 (2) For the purposes of subsection (1), a medical expense of an individual is an amount paid

...

(l.2) for reasonable expenses relating to renovations or alterations to a dwelling of the patient who lacks normal physical development or has a severe and prolonged mobility impairment, to enable the patient to gain access to, or to be mobile or functional within, the dwelling;

...

(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;

...

[7] Referring to paragraph (l.2), the testimony of Mr. Gordon is that Julia has a prolonged mobility impairment and that the use of the hot tub (which he helps her to and into) enables her to gain access to and to be mobile in their dwelling. It also enables her to function in her household duties as a result of using it each morning and throughout each day. Before using the tub each day Mrs. Gordon has difficulty moving at all. At that time she can shuffle for about 20 feet on a level floor, with help. She has to be helped out of bed, helped to do movements, and helped to get into the tub. Mr. Gordon's testimony is accepted in its entirety.

[8] The hot tub required a new floor, and electrical and plumbing work as well as the purchase of an installation of the hot tub itself into the house so as to become part of the house. These constituted a renovation or alteration to their dwelling.

[9] The appeal is allowed.

[10] The Appellant is awarded the sum of $100 on account of out of pocket expenses for copying, postage and other expenditures to prosecute the appeal.

Signed at Ottawa, Canada this 29^th day of February 2000.

"D.W. Beaubier"

J.T.C.C.