27 March 1998 External T.I. 9803265 - MEANING OF PROLONGED FOR 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 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 prolonged when disabled individual dies before disability lasts 12 months

Position:

question of fact to be determined by the doctor certifying the form as to whether the disability is expected to last for more than 12 months at the time of the certification

Reasons:

The estimate of how long the disability will last involves a judgement call, which can only be made by the medical doctor (or certain other medical practitioners for specific disabilities) at the time the certification is completed. While the Act does not specify when the certification is to be made, the technical notes to the proposed amendment to 118.2(2)(a.2) state that the individual must be "currently" certified. The form calls for the doctor to make a judgement call as to the expected length of time of the illness and in absence of any specific direction in the Act to the contrary, the ordinary expectation would be that the judgement should be made at the time of the certification. This may result in inconsistancies since some individuals will request the certification before death and others will not be aware of the need to ask for a certification until after death & it would be difficult to argue that a disability is expected to last more than 12 months if the patient has already died before the 12 month period has elapsed. In addition, a doctor is more likely to be required to make an estimate of the length of the disability for an individual who becomes disabled at the end of a year than the doctor is for an individual who became disabled at the beginning of the year.

                                    	980326
XXXXXXXXXX		              		A. Humenuk

March 27, 1998

Dear Sir:

Re: Disability Tax Credit for the Year of Death

This is in reply to your letter of January 29, 1998, concerning the application of the disability tax credit in the situation where an individual dies before the individual's severe impairment has lasted a continuous period of 12 months.

For the purpose of the disability tax credit, subsection 118.4(1) of the Income Tax Act states that an impairment is considered prolonged if 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 Income Tax 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. Note that 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.

We trust this information will be of assistance to you.

Yours truly,

P. Spice
for Director
Business and Publications Division
Income Tax Rulings and
Interpretations Directorate
Policy and Legislation Branch

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