Date:
20021112
Docket:
2002-2069-IT-I
BETWEEN:
SHELLEY G.
COURSER,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
__________________________________________________________________
For the
Appellant:
The Appellant herself
Counsel for the
Respondent:
Cecil Woon
____________________________________________________________________
Reasons
for Judgment
(Delivered
orally from the Bench at Saint John,
New Brunswick,
on Tuesday,
September 10, 2002 and revised as to style and syntax
at
Ottawa,
Canada on November 12, 2002)
Margeson,
J.T.C.C.
[1]
This case proceeded on the basis of an agreed statement of facts
as follows:
AGREED
STATEMENT OF FACTS
1.
In computing
income for the 2000 taxation year, the Appellant claimed the
amount of $3,368.07 as a disability amount transferred from a
dependant other than a spouse with respect to Doris
Barton.
2.
Doris Barton is
eligible for the Disability Tax Credit in the 2000 taxation year.
She suffers from Alzheimer's disease and has lived in a
nursing home since February 1, 1999.
3.
Doris Barton is
the Appellant's grandmother and was born in 1915. She was a
Canadian resident in the 2000 taxation year.
4.
No person made a
claim for Doris Barton as an "equivalent to spouse" in
the 2000 taxation year and no one was eligible to make such a
claim as Doris Barton's own funds were used to pay her
nursing home costs during the 2000 taxation
year.
5.
No other persons
was eligible to make a claim for Doris Barton on line 315 of
the T1 General Form as the only home provided for her during the
2000 taxation year was a nursing home.
6.
The Appellant has
held a Power of Attorney for Doris Barton for several years
prior to her admission to the nursing home.
7.
The Appellant is
responsible for arranging payment for a variety of family bills
including Doris Barton's monthly nursing home costs as
there is no contribution from the Province of New Brunswick
for her costs. Funds used to pay these bills are
Doris Barton's and her husband,
Ronald Barton's.
8.
The Appellant
completed Doris Barton's Income Tax Return and made
application on behalf of Doris Barton for the Senior's
Low Income Tax Rebate and the Old Age Security Guaranteed
Supplement in 2000.
9.
The Appellant made
application on behalf of Doris Barton to the New Brunswick
Human Resources Department for financial assistance in
2000.
10.
During the first
two months of 2000, Doris Barton had a personal care person
who was hired to go into the nursing home to assist her in
getting up and with breakfast in the morning and someone else to
go in and assist her with lunch. The Appellant was responsible
for all matters relating to these people including their hiring
and scheduling as well as ensuring that they received payment for
their services. Payment was made bi-weekly. Payment for these
services was from funds owned by
Doris Barton.
11.
The Appellant was
responsible for ensuring that the nursing home hairdresser was
paid for services provided to Doris Barton. Payment for
these services was from funds owned by Doris Barton. There
were 3 such payments made in 2000.
12.
The Appellant was
responsible for ensuring that the drug store was paid for the non
prescription drugs and other items, including a wheelchair, that
were purchased for Doris Barton. There were 4 such payments
made in 2000. Payment for these services were from funds owned by
Doris Barton.
13.
During 2000,
Doris Barton was part owner of a rental property. This
property (was) sold by private sale and the Appellant who is a
lawyer, was responsible for all legal matters relating to the
sale of this property. Doris Barton's funds were used to pay
$25.00 to a lawyer in Minto to take the signature of the
Appellant as she had to sign the Deed on behalf of
Doris Barton.
14.
The Appellant was
responsible for sending out Christmas cards and money gifts from
Doris Barton and her husband to their children,
grandchildren and great-grandchildren. Doris Barton's
funds were used for these gifts.
15.
Since
Doris Barton lost both her false teeth and her glasses while
at the nursing home in 2000, the Appellant had to arrange to have
both of these replaced for her. Doris Barton's funds
were used to purchase these items.
16.
The Appellant
assisted with and arranged for payment of renovations to the home
of Doris Barton and Ronald Barton. Payment for these
renovations were from Doris Barton's and Ronald
Barton's funds.
17.
The Appellant did
not receive any compensation or reimbursement of personal
expenses such as postage, gas, unbillable time spent during the
work day or long distance calls charged to the Appellant's
home for any of these services with the exception of the sale of
the rental property for which she received $100.00 to pay for her
gas for two trips to Minto for matters relating to the sale. Long
distance calls charged to the Appellant's place of business
were reimbursed to her business.
18.
The Appellant did
not pay for any of the above expenses with her own money. All
payments were from funds owned by Doris Barton and/or
Ronald Barton.
19.
The Appellant did
not contribute to or provide the basic necessities of food,
clothing or shelter for Doris Barton.
[2]
The Appellant did not provide the basic necessities of life, that
is food, clothing and shelter to the resident Doris Barton
who was her grandmother. What she did provide were ancillary services such as going
to the bank for her, lining up appointments for her, paying her
bills and other errands as set out in the agreed statement of
facts. The grandmother had been in a nursing home since February
1, 1999. It is clear that no person made a claim as an
"equivalent to spouse" in the taxation year in issue.
No one was eligible to make such a claim.
[3]
If the Appellant were
eligible to claim the deductions here, one could see a situation
where there might be other people who qualified as well. One
might see a situation where two nieces, two aunts, two brothers
or two sisters each provided some services to the disabled
person. Who is entitled to make the claim? Would they only be
entitled to make the claim for the amount of money which they
expended? How would the Minister of National Revenue
("Minister") decide how much each one was entitled to
claim?
[4]
The Appellant argued that the accountant said that she qualified
and that the only requirement was that the grandmother did not
claim it. This was not a deduction. The claimant still had to
meet the requirements of the section.
[5]
She further argued that the amount that could be deducted would
be decided by the Court but this was one tax credit that could be
split. Her situation was not just having the grandmother over for
dinner on occasion. She did something for her every day and she
was going to continue to do these errands for her.
[6]
The amounts expended all came from
the funds of Doris Barton. All bills that were paid came out
of her funds. The Appellant completed her income tax return or
had it completed by someone else. She made a claim for an income
tax rebate and the Old Age Security Guaranteed Supplement. She
made application on behalf of Doris Barton to the
New Brunswick Human Resources Department for financial
assistance.
[7]
The Appellant did make herself
responsible for hiring and scheduling of people coming into the
home to assist Doris Barton. Payment for these services were
all made out of funds of Doris Barton and not out of those
of the Appellant herself.
[8]
The Appellant also made herself
responsible for ensuring that the nursing home hairdresser was
paid for services out of funds of Doris Barton. This was
done three times in the year 2000.
[9]
She also made herself responsible
for ensuring that the drug store was paid for
non-prescription drug items. She also was required to sign
a deed under a power of attorney on behalf of Doris Barton.
She sent out Christmas cards and money gifts on behalf of
Doris Barton and her husband to the children. She arranged
to have her false teeth repaired; assisted in arranging for
paying for renovations and she did not receive any compensation
for any of those services.
[10]
There is no issue about what she
did for the alleged "dependent". The whole question is
whether or not the Appellant has satisfied the conditions set out
in subsection 118(6) of the Income Tax Act
("Act").
[11] There are
two terms there, "support" and "dependent".
"Support" is referred to in subsection 118(5) of the
Act but it does not say what support is and what it is
not. So when it talks in
terms of an amount it seems to this Court that the Act is
attempting in some way to quantify it, that it must be an
expenditure of a monetary nature by one on behalf of the person
that is being claimed as a dependent.
[12] Since
there is no clear definition
of the terms "support" and "dependent", the
Court is required to go to the dictionaries, and as in most
cases, if you look through the dictionary you can find some
definition that supports either side. In this particular case if
one looks at the Merriam-Webster's Collegiate Dictionary,
and considers the portion referred to by counsel for the
Respondent it says:
"to
pay costs of; to provide a basis for the existence or subsistence
of".
[13] If the
Court looks at the
Appellant's reference, support can mean much different than
that. It says to "assist or help". "The act or
process of supporting", "the condition of being
supported", "one that supports". If one looks at
the definition in The Canadian Oxford Dictionary, again,
there is assistance for both the Respondent's position and the
Appellant's position. Starting at section 3a,
"provide with a home and the necessities of life";
"provide enough food and water to keep someone or something
alive"; "help by giving one's approval, sympathy,
encouragement"; "be actively interested in";
"endure, tolerate"; "maintain or represent
adequately" and a wide range of things which might entail
what the Appellant did here.
[14]
There can be no doubt that what the
Appellant did was for the benefit of the person who was in the
home. The question is, does it fall within the definition of
"support" and does the paid grandmother fall under the
definition of "dependent" of the Appellant?
[15]
The Court is cognizant of what the
Supreme Court of Canada said in Mattabi Mines Ltd. v. Ontario
(Minister of Revenue).This Court normally
takes the position that interpretation bulletins are just that,
they set out the position of the Minister with respect to how he
is going to interpret a certain section of the Act. This
Court has to decide what is the correct
interpretation.
[16] In
Mattabi, supra, at page 14, para. 28, the Court referred to Nowegijick v. The
Queen, where Dickson, J.
said:
Administrative policy
and interpretation are not determinative but are entitled to
weight and can be an "important factor" in case of
doubt about the meaning of the legislation: per de
Grandpré, J., Harel v. Deputy Minister of Revenue of
Quebec. . .
[17] It has
been argued that an interpretation bulletin can be relied upon by
a taxpayer in support of his position but not by the Minister.
There is good logic for that argument.
[18]
This Court is of the opinion that in the
sections in issue today the Court should make a more restrictive
interpretation, take a more restrictive view of what
"dependent" is and what "support" is. This
Court is satisfied that it would be almost impossible to enforce
the section of the Act or give any meaning to the section
of the Act if it were to interpret the meaning of
"support" or "dependent" so broadly that
almost any type of ancillary service that a person provides would
qualify that person to claim the other as a
"dependent". There would be real ambiguity in deciding
just how much one could claim. If there were more than one person
who might qualify, how much could each claim? How would you value
such services?
[19]
The Appellant maintains that once she provides
a service she can claim the whole amount so long as no one else
does, immaterial of the amount of money she expended or even if
it cost her nothing. There is no evidence in this case that the
Appellant expended any amount of money on the
services.
[20]
The only reasonable interpretation to
give to this section would be that what the Act is talking
about is providing support in the form of necessities of life
such as food, clothing and shelter. The Court is also of the
opinion that in order to be able to claim such a credit one must
have expended the monies out of one's own resources, and one
would have to quantify as to what was actually expended. This
conclusion is not contrary to the definitions of "support" or
"dependent" as found in the various definitions in the
dictionaries. This interpretation is not contrary to the plain
and ordinary meaning of the terms "support" and
"dependent".
[21]
The Appellant has not made out the case
on a balance of probabilities that her grandmother was her
dependent during the year in issue or that she expended any
proven amount upon her as a result of that
"dependency".
[22] The appeal
is dismissed.
Signed at
Ottawa, Canada, this 12th day of November 2002.
J.T.C.C.
COURT FILE
NO.:
2002-2069(IT)I
STYLE OF
CAUSE:
Shelley G. Courser and
Her Majesty The Queen
PLACE OF
HEARING:
Saint John, New Brunswick
DATE OF
HEARING:
September 10, 2002
REASONS FOR
JUDGMENT BY: The Honourable T.E.
Margeson
DATE OF
JUDGMENT:
November 12, 2002
APPEARANCES:
For the
Appellant:
The Appellant herself
Counsel
for the
Respondent:
Cecil Woon
COUNSEL OF
RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
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