Gorling v. The Queen, docket 2002-570(IT)I (Informal Procedure)

Date: 20020924

Docket: 2002-570-IT-I

BETWEEN:

LEONA GORLING,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Judgment

Little, J.

A.             FACTS

[1]            Graham A.M. Gorling represented his mother in the appeal.

[2]            The parties agree that the Appellant suffers from hypertension, atherosclerosis, cerebrovascular deficiency and depression (the "Handicap") and consequently qualifies for the disability tax credit under section 118.3 of the Income Tax Act (the "Act").

[3]            In computing income for the 2000 taxation year the Appellant claimed a medical expense tax credit in the amount of $22,225.00. The amount of $22,225.00 was the amount paid by the Appellant to obtain the use of an apartment, three meals per day and other services in Concorde-by-the-Sea ("Concorde"). Concorde is a group retirement home located in White Rock, British Columbia.

[4]            The Appellant was 86 years of age in 2000.

[5]            The amount paid by the Appellant to Concorde provided her with the following:

                (i)             an apartment;

                (ii)            all utilities except telephone and cablevision;

                (iii)           maintenance and repairs;

                (iv)           three meals per day;

                (v)            laundry facilities;

                (vi)           weekly housekeeping service;

                (vii)          a variety of social and recreational activities;

                (viii)         scheduled transportation; and

                (ix)            24-hour security monitoring.

[6]            Concorde did not provide the Appellant with the following:

                (i)             the services of a full-time attendant for the care of the Appellant;

                (ii)            qualified medical personnel for the care of the Appellant; and

                (iii)           special equipment, facilities or personnel for the care of individuals

                                suffering from the Handicap suffered by the Appellant.

B.             ISSUE

[7]            The issue to be determined is whether the Appellant may claim the amount of $22,225.00 that she paid to the Concorde as a medical tax credit in determining her income for the 2000 taxation year.

C.             ANALYSIS

[8]            Medical expenses are governed by section 118.2 of the Act. "Medical expenses" are defined in subsection 118.2(2) of the Act.

[9]            Paragraph 118.2(2)(b) refers to full-time attendant care or full-time nursing home care. This provision does not apply in this situation because the Appellant did not pay for a full-time attendant nor did she pay for full-time care in a nursing home.

[10]          The second provision of the Act which should be considered is paragraph 118.2(2)(b.1). This provision states that an amount is a medical expense if it is paid as remuneration for attendant care provided in Canada to the patient if the patient is a person for whom a disability tax credit may be claimed under section 118.3 of the Act and if no part of that remuneration for the attendant care has been deducted under any other provision of the Act. The subsection also specifies that the deduction of remuneration for attendant care is limited to $10,000.00.

[11]          In my opinion this provision does not apply because what the Appellant was paying for in this situation was not attendant care but was for the rent of an apartment plus the other services as outlined in paragraph [5] above. On the facts that were presented to the Court the Appellant does not come within the plain meaning of the words contained in paragraph 118.2(2)(b) or paragraph 118.2(2)(b.1) of the Act.

[12]          In reaching this conclusion I have considered and I agree with the following decisions:

                Flumerfelt v. R., [1999] 3 C.T.C. 2168

                Estate of Freeman Miles v. The Queen, 99 DTC 958

                Harverson v. R., [ 2001] 2 C.T.C. 2480

[13]          The appeal is dismissed.

Signed at Vancouver, British Columbia, this 24th day of September 2002.

"L.M. Little"

J.T.C.C.

COURT FILE NO.:                                                 20002-570(IT)I

STYLE OF CAUSE:                                               Leona Gorling and

                                                                                                Her Majesty the Queen

PLACE OF HEARING:                                         Vancouver, British Columbia

DATE OF HEARING:                                           July 10, 2002

REASONS FOR JUDGMENT BY:      The Honourable Judge L.M. Little

DATE OF JUDGMENT:                                       September 24, 2002

APPEARANCES:

Agent for the Appellant:                     Graham A.M. Gorling

Counsel for the Respondent:              Michael Taylor

COUNSEL OF RECORD:

For the Appellant:                

Name:                               

Firm:                 

For the Respondent:                             Morris Rosenberg

                                                                                Deputy Attorney General of Canada

                                                                                                Ottawa, Canada

2002-570(IT)I

BETWEEN:

LEONA GORLING,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeal heard on July 10, 2002 at Vancouver, British Columbia, by

the Honourable Judge L.M. Little

Appearances

Agent for the Appellant:                     Graham A.M. Gorling

Counsel for the Respondent:              Michael Taylor

Judgment

                The appeal from the assessment made under the Income Tax Act for the 2000 taxation year is dismissed.

Signed at Vancouver, British Columbia, this 24th day of September 2002.

"L.M. Little"

J.T.C.C.