20 June 2002 External T.I. 2002-0141135 - MENTAL OR PHYSICIAL INFIRMITY

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 Department.

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

Principal Issues:

What are the criteria used by the CCRA to determine when an individual is considered to have a "mental or physical infirmity" for purposes of the clause 60(l)(v)(B) and paragraphs 118(1)(c.1) and (d) of the Income Tax Act (the Act).

Position:

The phrase "mental or physical infirmity" is not defined in the Act, nor has the CCRA developed specific guidelines to determine whether or not an individual is mentally or physically infirm, each situation will depend upon the facts - the phrase will take on its ordinary meaning.

Reasons:

Appendix A of Interpretation Bulletin IT-513R Personal Tax Credits

XXXXXXXXXX 2002-14113

Randy Hewlett, B.Comm.

June 20, 2002

Dear XXXXXXXXXX:

Re: Criteria For Determining "Mental or Physical Infirmity"

We are writing in response to your letter dated May 10, 2002, wherein you requested that we outline the criteria used by the Canada Customs and Revenue Agency (the CCRA) to determine when an individual is considered to have a mental or physical infirmity for purposes of the clause 60(l)(v)(B) and paragraphs 118(1)(c.1) and (d), of the Income Tax Act (the Act).

Our Comments

Written confirmation of the tax implications inherent in particular transactions is given by this Directorate only where the transactions are proposed and are the subject matter of an advance income tax ruling request submitted in the manner set out in Information Circular IC 70-6R4, Advance Income Tax Rulings, dated January 29, 2001. Where the particular transactions are completed, the inquiry should be addressed to the relevant Tax Services Office. However, we are prepared to provide the following comments.

The criteria necessary to establish mental or physical infirmities for the above-noted provisions are not enumerated in the Act. Generally, the determination of whether or not an individual is mentally or physically infirm will depend upon the facts of each case. Appendix A of Interpretation Bulletin IT-513R Personal Tax Credits, dated February 24, 1998, discusses how the phrase "mental or physical infirmity" will be interpreted in the application of subsection 118(1) of the Act. The bulletin indicates that the phrase will take on its ordinary meaning. Further, when considering whether or not an individual is dependent on a taxpayer because of a mental or physical infirmity, "the dependency must be brought about solely by reason of the infirmity, and the degree of the infirmity must be such that it requires the person to be dependent on the individual for a considerable period of time. Temporary illness is not classed as infirmity."

We trust our comments will be of assistance to you.

Yours truly,

J.F. Oulton, CA
for Director
Business and Partnerships Division
Income Tax Rulings Directorate
Policy and Legislation Branch

- 2 -