Bowman T.C.J.:
HIS HONOUR: This is an appeal from an assessment for the 1995 taxation year, whereby the Appellant claimed under section 118.9 amounts transferred to him as a supporting person from his daughter. The amounts claimed by Mr. Sandford fall under two sections of the Income Tax Act.
The facts are that his daughter, who was 12 years of age in 1995, attended the Edmonton School of Ballet. The Edmonton School of Ballet provides a combined program of ballet and regular academic courses. It is a full-time program, and it is
...certified by the Minister of Employment and Immigration to be an educational institution providing courses, other than courses designed for university credit, that furnish a person with skills for, or improve a person’s skills in, an occupation...
Those words appear in both section 118.5, which provides the tuition credit, and also in section 118.6, which provides an education credit. These are two different claims, and Mr. Sandford claimed both of them in his return of income for 1995.
I shall deal first with the tuition credit. Section 118.5 provides that
...where the individual was during the year a student enrolled at an educational institution in Canada that is...
And then follow the words that I just read above.
...certified by the Minister of Employment and Immigration to be an educational institution providing courses, other than courses designed for university credit, that furnish a person with skills for, or improve a person’s skills in, an occupation...
Then you are entitled to
...an amount equal to the product obtained when the appropriate percentage...
(which is 17 percent.)
...is multiplied by the amount of the fees... which in this case was $2,173.00 paid by Mr. Sandford to the Edmonton School of Ballet.
Unfortunately, following the words that I have just quoted there are the following words:
...except to the extent that those fees ... are paid to an educational institution described in subparagraph (ii)...
which is the Edmonton School of Ballet.
...if ... the individual had not attained the age of 16 years before the end of the
year...
This somewhat convoluted way of drafting means simply that you don’t get the tuition credit if you have not reached the age of 16 before the end of the year. That is precisely the case with Serena Sandford, Mr. Sandford’s daughter.
Mr. Sandford points out, (and he put in a lot of letters between the Edmonton School of Ballet and the Department of National Revenue), that traditionally the department has ignored the 16 year age limitation. First of all, it is not at all clear that the department was consciously waiving this requirement. There is nothing in any of the forms that I have seen that requires that the child’s age be set out, and secondly, although administrative practice may very well be a factor in case of doubt the Minister of National Revenue is not bound by an administrative practice that is clearly contrary to the law.
The provision that the individual claiming the tuition credit have attained the age of 16 years of age in the year is quite clear, and I do not think that administrative practice can prevail against that provision. I rely particularly upon decision of the Supreme Court of Canada in Harel v. Quebec (Deputy Minister of Revenue) (1977), [1978] I S.C.R. 851 (S.C.C.) at 859. And of course, there is no estoppel against the provisions of a statute (Goldstein v. R. (1995), 96 D.T.C. 1029 (T.C.C.).
The result is a little unfortunate. As was pointed out in one letter to the Department of National Revenue, children must begin ballet training at a very young age, and the effect of this provision is that persons attending a ballet school do not get the tuition credit. Ballet is an important part of the cultural life of Canada and this is something that I should think the Department of Finance might consider amending. However, that is not within my jurisdiction. I must therefore dismiss the appeal with respect to the claim for a credit in respect of the $2173 tuition fees that were paid.
So far as the education amount is concerned, that is a different matter. Section 118.6 provides for an education credit of $80 times 17 percent times the number of months in which an individual is enrolled in a qualifying educational program as a full-time student at a designated educational institution. That is set out in subsection 118.6(2). There is no question that the Edmonton School of Ballet is a designated educational institution as defined in subsection 118.6(1). However, the claim for the credit in respect of $880, being the number of months which Serena was enrolled at the school multiplied by 80, was denied on the basis that she was not enrolled in a qualifying educational program as a full-time student at a designated educational institution. The key words are “in a qualifying educational program as a full-time student”.
The fact of the matter is she was, according to Mr. Sandford. Qualifying educational program is defined as
...a program of not less than 3 consecutive weeks duration that provides that each student taking the program spend not less than 10 hours per week on courses or work in the program...
She meets this qualification.
The Minister’s assumption was erroneous, and Mr. Sandford should be entitled to the credit in the amount of $880. The appeal is therefore allowed and the assessment is referred back to the Minister of National Revenue on the basis that the Appellant is entitled to the education credit provided in section 118.6 in respect of $880.00.
Appeal allowed in part.
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