Docket: 2008-1574(IT)I
BETWEEN:
MARK MACDUFF,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal
heard on March 26, 2009, at Winnipeg, Manitoba
Before: The Honourable
Justice Valerie Miller
Appearances:
|
For the Appellant:
|
The
Appellant himself
|
|
Counsel for the Respondent:
|
Cam Regehr
|
____________________________________________________________________
JUDGMENT
The appeals from the reassessments made under the Income
Tax Act for the 2005 and 2006 taxation years are dismissed in accordance
with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 31st day of March 2009.
“V.A. Miller”
Citation: 2009TCC179
Date: 20090331
Docket: 2008-1574(IT)I
BETWEEN:
MARK MACDUFF,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
V.A. Miller, J.
[1]
The issue in this
appeal is whether the amounts paid by the Appellant to The Laureate Academy in
2005 and 2006 are medical expenses in accordance with paragraph 118.2(2)(e)
of the Income Tax Act (the “Act”).
[2]
The Appellant was the
only witness. He stated that his daughter Kelsey has dyslexia. She has problems
reading, understanding and comprehending. He personally knows of the hurdles faced
by someone with dyslexia as he himself has the disability.
[3]
He stated that there
are no programs in the regular school system to assist students who have
dyslexia. Whereas at The Laureate Academy, there were small classes and Kelsey
was able to get individual instruction. She was successful in attaining her
grade 9 and grade 10 certificates and one credit towards her grade eleven
certificate.
[4]
Paragraph 118.2(2)(e)
of the Act provides as follows:
(2) Medical
expenses -- For the purposes of subsection (1), a medical expense of an
individual is an amount paid
(e) [school,
institution, etc.] -- for the care, or the care and training, at a school,
institution or other place of the patient, who has been certified by an
appropriately qualified person to be a person who, by reason of a physical or
mental handicap, requires the equipment, facilities or personnel specially
provided by that school, institution or other place for the care, or the care
and training, of individuals suffering from the handicap suffered by the
patient;
[5]
To claim an expense under this
paragraph, the Appellant must be able to satisfy the following criteria as were
set out in Collins v. Canada[1]:
1. The
taxpayer must pay an amount for the care or care and training at a school,
institution or other place.
2. The
patient must suffer from a mental handicap.
3. The
school, institution or other place must specially provide to the patient
suffering from the handicap, equipment, facilities or personnel for the care or
the care and training of other persons suffering from the same handicap.
4. An
appropriately qualified person must certify the mental or physical handicap is
the reason the patient requires that the school specially provide the
equipment, facilities or personnel for the care or the care and training of
individuals suffering from the same handicap.
[6]
The Respondent has conceded that
the Appellant has met the first two requirements.
[7]
The Appellant had no documents
with him as they had been destroyed. I asked the Respondent to tender the
documents that had been reviewed by the Canada Revenue Agency (“CRA”) at the
objection stage.
[8]
These documents included a letter
from The Laureate Academy dated April 3, 2007, in which the Executive Director
of that school states the following:
The qualification
of tuition payments made to the Laureate Academy as a medical expense was reviewed by
Revenue Canada in September, 1996. At that time The Laureate
Academy was found to have the special equipment, facilities, and/or personnel
required to adequately care for the handicapped students we serve. Mr. Vincent
Wold of the Revenue Canada Tax Centre in Winnipeg concluded that “the tuition paid to The
Laureate Academy will qualify as a medical expense by Revenue Canada.”
[9]
I have not accepted that the
letter has established that the Appellant has met the third criteria as the
Respondent did not have the opportunity to cross examine the author of the
letter.
[10]
As well, the Federal Court of
Appeal has held that to determine if an institution provides special care as
contemplated by paragraph 118.2(2)(e), the test is one of purpose[2]. There was no evidence with
respect to the purpose of The Laureate Academy.
[11]
With respect to whether a
qualified person has certified that the Appellant’s daughter required the
equipment, facilities or personnel specially provided by The Laureate Academy, Justice
Trudel stated the following in The Queen v. Scott[3]:
23 However
there must be true certification: one which specifies the mental or physical
handicap from which the patient suffers, and the equipment, facilities
or personnel that the patient requires in order to obtain the care or training
needed to deal with that handicap: Title Estate v. R., [2001] F.C.J. No.
530 (Fed. C.A.) at paragraph 5.
[12]
Included in the materials reviewed
by the CRA was a letter dated May 29, 2007 from a Dr. Robinson. In the letter
he stated:
Kelsey attended the Laureate Academy from September 2005 to June 2007 and she had benefited from
this extra resource. It has allowed her to improve her school performance to an
acceptable level.
[13]
This letter does not amount to a
certification.
[14]
The appeal is dismissed.
Signed at Ottawa,
Canada, this 31st day of March 2009.
“V.A. Miller”
CITATION: 2009TCC179
COURT FILE NO.: 2008-1574(IT)I
STYLE OF CAUSE: MARK MACDUFF AND HER MAJESTY THE QUEEN
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: March 26, 2009
REASONS FOR JUDGMENT BY: The
Honourable Justice Valerie Miller
DATE OF JUDGMENT: March 31, 2009
APPEARANCES:
|
For the Appellant:
|
The Appellant himself
|
|
Counsel for the
Respondent:
|
Cam
Regehr
|
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the
Respondent: John H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa,
Canada
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