Docket: 2010-2410(IT)I
BETWEEN:
HOWARD OSTLUND,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal
heard on March 28, 2011, at Regina, Saskatchewan
Before: The Honourable
Justice G. A. Sheridan
Appearances:
|
For the Appellant:
|
The
Appellant himself
|
|
Counsel for the Respondent:
|
Bryn Frape
|
____________________________________________________________________
JUDGMENT
The appeal from the assessment made under the Income
Tax Act for the 2007 taxation year is dismissed in accordance with the
attached Reasons for Judgment.
Signed at Ottawa, Canada,
this 1st day of April 2011.
“G. A. Sheridan”
Citation: 2011TCC197
Date: 20110401
Docket: 2010-2410(IT)I
BETWEEN:
HOWARD OSTLUND,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Sheridan J.
[1]
The issue in this
appeal is whether the Minister of National Revenue properly disallowed the
claim of the Appellant, Howard Ostlund,
for a Disability Tax Credit in 2007 in respect of his son who has been
diagnosed with Asperger’s Syndrome. Mr. Ostlund and his wife, Sandra Ostlund,
testified at the hearing and were entirely credible in their evidence.
[2]
But as Mr. Ostlund explained at the hearing, it is not so
much the facts that are in dispute as the
Minister’s restrictive application of the eligibility criteria for the
Disability Tax Credit as set out in sections 118.3 and 118.4 of the Income
Tax Act. These are detailed and technical provisions which include the
eligibility criteria and the formula for the calculation of the credit but
briefly summarized, a Disability Tax Credit will be available where the person
in respect of whom it is claimed has a severe and
prolonged physical or mental impairment that markedly restricts his ability to
perform a single basic activity of daily living as further defined in the Act.
[3]
In reassessing the 2007
taxation year, the Minister made the following assumptions of fact:
a.
P.O. was born in 1990;
b.
P.O. has been diagnosed with Asperger Syndrome;
c.
P.O. is able to perform daily living skills such as simple chores,
personal hygiene and simple purchases;
d.
P.O. is able to express his basic needs, but has difficult interpreting
social cues or making friends;
e.
P.O. can make appropriate decisions and judgments in day to day
situations;
f.
P.O. has no significant memory deficits;
g.
P.O. requires an excessive amount of support to adapt to change, but
only during periods of exacerbation or in stressful situations;
h.
P.O. requires little or no supervision;
i.
P.O.’s mental functions necessary for everyday life are intact;
j.
P.O. does not have a severe and prolonged mental or physical impairment;
and
k.
P.O.’s ability to perform a basic activity of daily living was not
markedly restricted and, more specifically, P.O. was not markedly restricted in
his ability to perform mental functions.
[4]
Mr. and Mrs. Ostlund
agreed with the essence of the above description of their son’s medical condition. They were candid in their admission
that as of 2007, Asperger Syndrome did not “markedly restrict” his ability to
perform daily living skills or mental functions. Their point in appealing was
to show the unfairness of the Disability Tax Credit provisions to parents who invest
themselves - physically, emotionally and financially - in the task of enhancing
their children’s potential. In their case, Mrs. Ostlund gave up a career in the
civil service to attend to their son’s needs; as for Mr. Ostlund, having only
one income put a greater burden on him. Happily, their efforts have borne fruit
– their son has just completed his third year of university and is looking
forward to further success in the sciences, an area in which his parents say he
excels.
[5]
While the Ostlunds are pleased
with the improvement in their son’s condition, they argued that they ought not
to be penalized for having helped him to reduce his degree of impairment. In
his argument, Mr. Ostlund reminded the Court of the purpose of the Disability
Tax Credit, citing the following passage from a document entitled Disability
tax Fairness, Report of the Technical Advisory Committee in Tax Measures for
Persons with Disabilities:
The purpose of
the disability tax credit is to provide for greater tax equity by allowing some
relief for disability costs, since these are an unavoidable additional expense
not faced by other taxpayers. In effect, the disability tax credit provides tax
relief for assumed non-itemizable costs of $6,486 (the credit amount for 2004),
which translates to a reduction of federal income tax otherwise owing or
payable of a maximum of $1,038 (16 percent of $6,486). The credit
therefore is intended to act as a tax fairness measure rather than a subsidy or
support for persons with disabilities.
[6]
In the Ostlunds’ view, the
Disability Tax Credit provisions should be changed to recognize the true
“non-itemizable” cost to parents of helping a child to overcome his disabilities.
[7]
The Ostlunds were well informed
and eloquent in their explanation of their son’s disability and their concerns
with the legislation. As I explained to them at the hearing, however, such a
presentation is more usefully made to the legislators. What they were
effectively asking me to do was to change the law, a power conferred exclusively
on Parliament; my authority is restricted to applying the law as it is. Thus, while
I have no reason to doubt their evidence of the impact of their son’s condition
on their family, it is equally clear that in 2007, his disability was not one
which met the criteria under sections 118.3 and 118.4 of the Act. For
that reason, the appeal of the 2007 taxation year must be dismissed.
Signed at Ottawa, Canada, this 1st
day of April 2011.
“G. A. Sheridan”
CITATION: 2011TCC197
COURT FILE NO.: 2010-2410(IT)I
STYLE OF CAUSE: HOWARD OSTLUND AND HER MAJESTY THE QUEEN
PLACE OF HEARING: Regina, Saskatchewan
DATE OF HEARING: March 28, 2011
REASONS FOR JUDGMENT BY: The
Honourable Justice G. A. Sheridan
DATE OF JUDGMENT: April 1, 2011
APPEARANCES:
|
For the
Appellant:
|
The Appellant himself
|
|
Counsel for the
Respondent:
|
Bryn Frape
|
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the
Respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa,
Canada
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