Bhaskar and Rama Narsing v. Her Majesty the Queen, [1997] 1 CTC 2187 (Informal Procedure)

Watson D.J.T.C.C.: — These appeals were heard on common evidence in Vancouver, British Columbia, under the Informal Procedure, on September 27, 1996. The Appellants were the only witnesses at the hearing.

Bhaskar Narsing

In computing the tax payable for the 1993 taxation year, the Appellant claimed a disability tax credit in respect of his mother, Godavari Narsing. In reassessing the Appellant for the 1993 taxation year, the Minister of National Revenue (the “Minister”) disallowed the disability tax credit of $719.61.

In reassessing the Appellant by Notice dated July 14, 1994, the Minister relied on the following assumptions of fact:

(a) the Appellant was during the 1993 taxation year, a married person who resided with his spouse at 1050 11th Avenue, Williams Lake, British Columbia;

(b) the Appellant claimed in the 1993 taxation year, a disability amount in respect of his mother, Godavari Narsing;

(c) in the 1993 taxation year, Godavari Narsing was, at all times, married to and resided with, her spouse, Behegwan Narsing, at 510 - 1515 Granville Street, Vancouver, British Columbia;

(d) Godavari Narsing is not wholly dependent on the Appellant for support;

(e) the Appellant did not reside with his mother in a self-contained establishment, that was maintained by him, at any time during the 1993 taxation year;

(f) Godavari Narsing’s net income for the 1993 taxation year was more than $4,273.00;

(g) Godavari Narsing suffers from the following medical conditions :

i) Ulcerative Colitis;

ii) Non-Insulin Dependent Diabetes; and

iii) Essential Hypertension;

(h) the effects of the impairment were such that her ability to perform a basic activity of daily living was not markedly restricted in the 1993 taxation year;

and

(i) Godavari Narsing was able to perform the basic activities of daily living with the use of therapy and appropriate devices and medication.

In his testimony, the Appellant stated that on May 30, 1994, he made a request for an adjustment to his income tax returns to allow him to claim the disability tax credit in respect of his mother, Godavari Narsing, for the 1992 and 1993 taxation years, relying on the medical certificate dated May 13, 1992 signed by Dr. Lim which he assumed was on the Revenue Canada file. The Appellant did submit another certificate dated April 20, 1995. Although Dr. Lim was present in the courtroom, he was not called as a witness at the hearing of these appeals to give evidence in respect of Godavari Narsing for the 1992, 1993 and 1994 taxation years. The Appellant stated that although his mother did not reside with him during the years in issue, he did provide financial support; his mother suffered from ulcerative colitis, non-insulin dependent diabetes and essential hypertension. The Appellant produced the two medical certificates dated May 13, 1992 and April 20, 1995 signed by Dr. Lim.

Rama Narsing

This appeal deals not only with the 1992 and 1994 taxation years but also, by consent of the parties, with the 1993 taxation year for which the Appellant had filed an application for extension of time for appealing the 1993 reassessment.

In computing the tax payable for the 1992, 1993 and 1994 taxation years, the Appellant claimed in each taxation year a disability tax credit of $719.61 ($4,233.00 x 17%). In assessing the Appellant for these three years, the Minister disallowed the tax credit relying on the following assumptions of fact:

(a) the Appellant claimed and was allowed on initial assessment, for the 1992 and 1994 taxation years, a disability tax credit in respect of her father, Behegwan Narsing;

(b) the Appellant subsequently requested disability tax credits in respect of her mother, Godavari Narsing;

(c) the Appellant’s 1992 and 1994 taxation years were re-assessed to disallow the disability tax credit in respect of her father; the request for a disability tax credit in respect of her mother was denied;

(d) during the 1992 to 1994 taxation years, Godavari Narsing was, at all times, married to and resided with, her spouse, Behegwan Narsing, at 510 - 1515 Granville Street, Vancouver, British Columbia;

(e) Godavari Narsing suffers from the following medical conditions:

i) Ulcerative Colitis;

ii) Non-Insulin Dependent Diabetes; and

iii) Essential Hypertension;

(f) the effects of the impairment were not such that her ability to perform a basic activity of daily living was markedly restricted in the 1992 to 12994 taxation years.

(g) Behegwan Narsing suffers from angina;

(h) the effects of the impairment were not such that his ability to perform a basic activity of daily living was markedly restricted in the 1992 to 1994 taxation years; and

(i) Godavari Narsing and Behegwan Narsing were both able to perform the basic activities of daily living with the use of therapy and appropriate devices and medication.

In her testimony, the Appellant stated that both of her parents, Godavari and Behegwan Narsing have lived with her and were supported by her since 1987.

The claim for disability tax credit in respect of her father in 1992 and 1994 were allowed on initial assessments then subsequently disallowed; the Appellant subsequently requested the disability tax credit in respect of her mother. The Appellant stated that due to her mother’s ulcerative colitis, non-insulin dependent diabetes and essential hypertension, her mother was unable to be away from their residence; she was house-bound so that she could be near a toilet because of the daily bowel movement; furthermore her mother had poor control of the diabetes and hypertension. The claim was based on the certificates filed in prior years and the one dated 1995.

Concerning her claim in respect of her father, the Appellant stated that she had relied on the medical certificate filed in 1989 and the subsequent certificate dated 1995. The Appellant stated that her father suffered from myocardial infraction and angina; due to an earlier heart attack, he was left with only the use of 2/3 of his heart; he tires easily, is unable to walk long distances, has poor memory and attention span due to his medication and is unable to take on any task that lasts more than one hour per day.

When questioned by counsel for the Minister, the Appellant stated that her mother could “mess herself’ sometimes six times per day or not at all, depending on her level of stress and previous night sleep. Due to the diabetes, she had to be very careful with her meals, which also affected the colitis condition.

When questioned about her father, she stated he was unable to walk more than 1 1/2 blocks without resting and could not carry on any one activity for more than one hour; he suffered a second heart attack in July 1993 and his energy level has been steadily declining; after his 13-day hospital stay in July 1993, his level of activity was low for approximately three months, then returned to about 80% of his previous level but he tires more easily. The Appellant had relied on her claims for disability tax credit that had been filed in prior years and assumed that they were on the Revenue Canada file. Her father was present in the courtroom but he was not called as a witness.

Analysis

The testimony of both Appellants disclosed that both of their parents had been quite ill for a considerable period and that they had supported them both financially and physically for many years. I am sympathetic to their request for the disability tax credits outlined above, however considering all of the circumstances, including the testimony and documentary evidence, in the light of sections 118.3 and 118.4 of the Income Tax Act and the case law, I am satisfied that the Appellants have not succeeded in their onus of establishing on a balance of probabilities that the Minister’s assessments were ill-founded in fact and in law.

Accordingly, the appeals are dismissed.

Appeal dismissed.