28 January 1997 Internal T.I. 9638377 - DISABILITY TAX CREDIT -MEANING OF WALKING

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:

meaning of walking and whether individual's ability to walk is markedly restricted for purpose of disability tax credit

Position:

walking includes bipedal locomotion with the use of a cane or crutches but the determination of whether an individual's ability to walk is markedly restricted involves a finding of fact and the taxpayer has not submitted sufficient evidence to support the claim

Reasons: see above

		January 28, 1997

	WINNIPEG TAXATION CENTRE	Headquarters
	Appeals Division		A. Humenuk
		957-8953
	Attention: Dave Harron
		963837

XXXXXXXXXX
Disability Tax Credit

This is further to your memorandum of November 15, 1996, in connection with the above-noted taxpayer. As discussed with you on January 21, 1997 (Harron\Humenuk), we are replying directly to you on the matter. We are enclosing a copy of the correspondence to Wanda Ciereszko of your Division from XXXXXXXXXX dated October 30, 1996, so that you may respond to his enquiry.

XXXXXXXXXX has asked for clarification of the term "walking" as used in the Act in reference to the disability tax credit. While we have provided general comments concerning the term below, we believe that more detail is needed in respect of XXXXXXXXXX disability in order to determine whether she qualifies for the disability tax credit under section 118.3 of the Act.

XXXXXXXXXX claimed a tax credit in 1994 in respect of the disability amount transferred from his spouse, XXXXXXXXXX. According to the information provided by XXXXXXXXXX on form T2201, Disability Tax Credit Certificate, XXXXXXXXXX, causing post-traumatic arthritis and a permanent disability. While XXXXXXXXXX responded affirmatively to question 2 on form T2201 concerning XXXXXXXXXX ability to walk 50 metres on level ground with the use of an aid, he further opined that she meets the criteria set out in section 118.3 for the year 1994. He is of the view that an affirmative response to question 2 is not mutually exclusive to an affirmative response to questions 8 and 9, which ask for an overall opinion concerning the individual's eligibility for the disability tax credit.

While there is some merit to this point, in that several cases involving individuals who were able to walk 50 metres, albeit with great difficulty, were decided in favour of those individuals, additional clarification pertaining to the nature and extent of the restriction on XXXXXXXXXX basic activities of daily living is required in order to determine whether she qualifies for the disability tax credit. Should the taxpayer and his wife's doctor be willing to submit further details relating to XXXXXXXXXX disability, the following cases may be of some assistance in determining whether the disability tax credit should be allowed:

Conner v M.N.R., 95 DTC 198: Because of chronic back pain, the taxpayer required frequent rests while walking so that it took him an inordinate amount of time to perform that basic activity of daily living.

Allim v. the Queen, 96 DTC 1007: Since no testimony was provided to contradict the Department's expert witness, the Tax Court disallowed the credit because the pain only periodically restricted the dependant's basic activities of daily living.

Gardner v. Regina, 1996(3) C.T.C. 2367 and Marshall v. Regina, 1996(3) C.T.C. 2475: The pain associated with fibromyalgia made walking difficult and caused the taxpayer's to take an inordinate amount of time in walking.

Jamieson v. the Queen, 1996 E.T.C. 512: The taxpayer did not make use of aids available to assist individuals with polio in walking, and thus was unable to establish, on the balance of probabilities that he was markedly restricted in the activity of walking.

Terrigno v. Regina, 1996(3) C.T.C. 2801: As a result of a work injury, the taxpayer could not walk without a cane but was unable to establish that the criteria in section 118.3 were met.

As can be seen in many of these cases, an individual may be entitled to the disability tax credit even though the individual is able to walk 50 metres on even ground with the use of an appropriate aid. The most common reason cited in these cases for allowing an appeal on this issue, is that the individual takes an inordinate amount of time to perform the activity of walking. Nevertheless, as shown in the case of Howorun v. Regina, (1996) E.T.C. 589, the disability tax credit is properly disallowed when the information provided on form T2201, along with any additional representation, is insufficient to establish that the criteria of section 118.3 have been met. It is our understanding that an informal telephone referral service to a medical adjudicator is available to assist Departmental employees in making an appropriate decision in a particular case. If you need assistance in this regard, you may wish to contact Gina Bertrand of the Benefit Programs Division at (613) 941-4854. Written referrals concerning this issue are handled in the same manner as for any other objection.

With respect to the question raised in XXXXXXXXXX letter, "walking" is one of six activities contained in the definition of "basic activity of daily living" as defined in paragraph 118.4(1)(c) of the Act. In the context of daily living, walking is the activity by which an individual moves between two points without the use of a wheelchair or similar device. Unlike a wheelchair, the use of crutches or canes do not provide an alternate form of transportation but they assist an individual in the activity of walking.

XXXXXXXXXX, however, postulates that a cane, crutches or other aid would invariably interfere with "walking" within the meaning of one of the definitions found in the Concise Oxford dictionary, because the use of such an aid precludes an individual from advancing each foot alternately, with neither foot off the ground at the same time. We disagree with his conclusion in that the ordinary meaning of "walking" includes ambulation with the use of crutches or a cane. The particular meaning of walking upon which XXXXXXXXXX argument rests, distinguishes walking from running, skipping or other means of bipedal locomotion as well as from animal locomotion such as trotting or cantering. While this distinction may be relevant for other purposes unrelated to section 118.3 of the Act, it is our view that the ordinary use of the term "walking" does not preclude the use of a cane or crutches.

We have enclosed copies of the cases that are only available in electronic format (cited E.T.C.).

John F. Oulton
Section Chief
Business, Property & Personal Section
Business and Publications Division
Income Tax Rulings and
Interpretations Directorate
Policy and Legislation Branch
Enclosure