Watson D.J.T.C.:
1 This appeal was heard at Sherbrooke, Quebec on April 25, 1996 under the informal procedure. The appeal relates to the 1992 and 1993 taxation years.
2 When the appellant filed his tax returns for the 1992 and 1993 taxation years, he claimed a tax credit of $719.61 ($4,233 × 17%) for a severe and prolonged mental or physical impairment in calculating his total non-refundable tax credits. He provided a duly completed form T2201 to this effect.
3 In accordance with subsection 152(1) of the Income Tax Act (the “Act”), the Minister of National Revenue (the “Minister”) sent the appellant a notice of assessment for the 1992 taxation year.
4 On November 5, 1993 the Minister informed the appellant that his form T2201, “Disability Tax Credit Certificate”, had been submitted to the disability advisory service of Health and Welfare Canada as authorized by s. 118.3(4) of the Act and that as a consequence of their ruling he could not allow the non-refundable disability tax credit for the 1992 taxation year as the requirements of the Act had not been met.
5 On November 10, 1993 the Minister sent the appellant a notice of reassessment for the 1992 taxation year disallowing the non-refundable disability tax credit of $719.61 ($4,233 × 17%).
6 On July 14, 1994, pursuant to subsection 152(1) of the Act, the Minister sent the appellant a notice of assessment for the 1993 taxation year disallowing the non-refundable disability tax credit of $719.61 ($4,233 × 17%) claimed by the appellant.
7 On September 21, 1994 the Minister sent the appellant a notice confirming the assessments of November 10, 1993 and July 14, 1994, respectively, for the 1992 and 1993 taxation years, pursuant to subsection 165(3) of the Act.
8 On October 19, 1994 the appellant appealed to the Tax Court of Canada from the Minister's decision in respect of the 1992 and 1993 taxation years.
9 In making and confirming his assessments of November 10, 1993 for the 1992 taxation year and July 14, 1994 for the 1993 taxation year, the Minister relied inter alia on the following facts:
[TRANSLATION](a) the appellant submitted a disability tax credit certificate duly signed by a physician;
(b) the physician, Dr. Michel Marceau, diagnosed bilateral neurosensory deafness;
(c) the appellant's case was referred to the Health and Welfare Canada physicians who determined that on the basis of the information received the appellant did not have a severe and prolonged mental or physical impairment the effects of which were such that his ability to perform a basic activity of daily living was markedly restricted;
(f) during the 1992 and 1993 taxation years the appellant did not have a severe and prolonged mental or physical impairment within the meaning of the Act.
10 At the hearing of the appeal, the appellant admitted the facts alleged in subparagraphs (a) to (c) and denied the allegation made in subparagraph (f).
11 The issue is whether the appellant is entitled, for the 1992 and 1993 taxation years, to a tax credit for a person suffering from a severe and prolonged mental or physical impairment pursuant to subsection 118.3(1) of the Act, as applicable in respect of the 1992 and 1993 taxation years.
12 Under subsection 118.3(1) of the Act the tax credit for mental or physical impairment is available if the following conditions are met:
- (a) an individual has asevere and prolongedmental or physical impairment,
13 The phrase “severe and prolonged impairment” is defined in subsection 118.4(1). For the 1991 and following taxation years that subsection reads as follows:
(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 may 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 restrictedonly where all or substantially all of the time, even with therapy and the use of appropriate devicesand medication, the individual is blind or is unable (or requires an inordinate amount of time) to perform a basic activity of daily living;
- (c) a basic activity of daily livingin relation to an individualmeans
(d) for greater certainty,no other activity, including working, housekeeping or a social or recreational activity, shall be considered as a basic activity of daily living.
(My emphasis.)
14 The appellant testified openly and frankly at the hearing of the appeal. He suffers from a hearing disability which, according to his physician, produces permanent sound distortion. The appellant uses two hearing aids and cannot function without these devices, but with them he is able to go about his daily activities: hearing the telephone ring a short distance away, listening to the radio and television and having a telephone conversation (with a telephone equipped with an amplifier).
15 The appellant's major limitation is the difficulty he has in following a conversation when several people talk at the same time and this causes him problems in his social life.
16 The appellant had the burden of showing by a preponderance of evidence that he was entitled to a tax credit under subsection 118.3(1) of the Act during the 1992 and 1993 taxation years. Taking all these circumstances into account, including the appellant's testimony, the admissions and the documentary evidence, I am satisfied he has not met this onus.
17 The appeal is accordingly dismissed.
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