25 June 2002 External T.I. 2002-0134625 - DISABILITY TAX CREDIT

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CRA.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CCRA.

Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ADRC.

Principal Issues: Can a medical doctor certify that an individual, who dies prior to having been disabled for a period of 12 months, qualifies for the disability tax credit after the individual has died?

Position: No

Reasons: A certification, which is based on the expectation that the disability will last for more than 12 months, cannot be made after the individual's death. (view also consistent with admin. position of Disability Programs Section)

XXXXXXXXXX 2002-013462
Shaun Harkin, CMA
June 25, 2002

Dear XXXXXXXXXX:

Re: Technical Interpretation Request: Meaning of Prolonged for Disability Tax Credit

This is in reply to your letter of April 9, 2002, regarding the credit for mental or physical impairment (hereinafter referred to as the "disability tax credit").

You ask for our views on whether a medical doctor could certify, after an individual is deceased, that the individual had a severe and prolonged impairment that was expected to last for a continuous period of at least 12 months, where the impairment actually lasted for a period of less than twelve continuous months.

Written confirmation of the consequences inherent in particular transactions are given by this directorate only where the transactions are proposed and are the subject matter of an advance ruling request submitted in the manner set out in Information Circular 70-6R5. If, however, the particular transactions are partially completed or completed, the enquiry should be addressed to the relevant Tax Services Office. Notwithstanding the foregoing, we are providing the following comments.

Our Comments

For the purpose of the disability tax credit, paragraph 118.4(1)(a) of the Income Tax Act (the "Act") states that, "an impairment is prolonged where it has lasted, or can reasonably be expected to last, for a continuous period of at least 12 months". In order for an individual to qualify for the credit, an appropriately qualified person (usually a medical doctor) must certify that the individual has a severe and prolonged mental or physical impairment the effects of which markedly restrict the individual's ability to perform the basic activities of daily living as those terms are defined in the Act.

Consequently, if an individual dies before his or her impairment has lasted a period of 12 continuous months, the credit will only be available if the severe impairment can reasonably be expected to last for a period of 12 months or more at the time the appropriately qualified person completes the certification. However, it is our view that a certification, which is based on the expectation that the disability will last for more than twelve months, cannot be made after the individual's death.

We do not agree with your comments that this view contradicts the comments in Head Office Memo (document # 73966). That memo states, "the Department's current position is that the disability amount is available not only where the taxpayer dies after the year-end and before filing his return, but also if he dies before the year-end, regardless of how long the disability has lasted". It is our view that the comments in document #73966 apply when a medical doctor has certified, at a time prior to the death of the individual, that the individual has a severe impairment that can reasonably be expected to last for a continuous period of at least 12 months. The fact that an individual, who a medical doctor has certified, at a time prior to the death of the individual, has a severe impairment that can reasonably be expected to last for a continuous period of at least 12 months, dies prior to the impairment lasting twelve months would not, in and by itself, preclude the individual from claiming the disability tax credit.

The foregoing comments represent our general views with respect to the subject matter. As indicated in paragraph 22 of Information Circular 70-6R5, the above comments do not constitute an income tax ruling and accordingly are not binding on the Canada Customs and Revenue Agency. Our practice is to make this disclaimer in all instances in which we provide an opinion.

We trust the above comments are of assistance.

Yours truly,

Steve Tevlin
for Director
Partnerships Section
Business and Partnerships Division
Income Tax Rulings Directorate
Policy and Legislation Branch

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