Citation: 2008TCC494
Date: 20080904
Docket: 2007-4944(IT)I
BETWEEN:
ELIZABETH J. BARTLETT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
V.A. Miller, J.
[1]
This is an appeal of a
reassessment for the Appellant’s 2006 taxation year wherein the Minister of
National Revenue (the “Minister”) disallowed a claim for a medical expense in
the amount of $7357.
[2]
Mr. Donald Bartlett,
the Appellant’s spouse, acted as agent for the Appellant. He stated that the
Appellant was in palliative care and could not be present at the hearing. Mr.
Bartlett also stated that he agreed with all of the assumptions made by the
Minister. Those assumptions are:
(a)
at all material times,
the Appellant and her spouse resided in Corner Brook, Newfoundland and Labrador (the “Locality”);
(b)
during the relevant
period, the Appellant was required to travel away to obtain medical treatment
or services that were not available in the Locality;
(c)
during the relevant
period, the Appellant travelled not less than 80 kilometres from the Locality
for the purpose of obtaining medical treatment or services;
(d)
during the relevant
period, the Appellant was incapable of travelling without an attendant;
(e)
the Appellant was
accompanied by her spouse, who acted as her attendant (the “attendant”);
(f)
the Appellant and her
attendant did not use public transportation;
(g)
the Appellant and her
attendant travelled in the same private vehicle;
(h)
the Appellant
calculated her medical travel expenses using the Minister’s simplified method,
and the total expenses she claimed in respect of her travel was $7,357;
(i)
the Appellant’s medical
travel expenses also included an additional $7,357 with respect to her
attendant’s travel; and
(j) the disallowed expenses with respect
to the attendant’s travel were a duplication of the medical expenses claimed
and allowed with respect to the Appellant’s travel.
[3]
It was Mr. Bartlett’s
position that the Minister did not follow his own rules as stated in
Interpretation Bulletin IT-519R2, paragraph 33. Mr. Bartlett’s interpretation
of this paragraph is that the Appellant is entitled to claim the travel
expenses twice, once for herself and once for her spouse who accompanied her.
Paragraph 33 reads as follows:
33. Paragraph 118.2(2)(h)
refers to travel expenses other than those referred to in paragraph 118.2(2)(g)
(discussed in ¶ 32 above). Paragraph 118.2(2)(h) provides that an
individual may include, as qualifying medical expenses, such other reasonable
travel expenses (see ¶ 34 below) for a patient to obtain medical services if
the patient travels to a place that is at least 80 kilometres away from the
locality where he or she dwells to get the medical services, and provided the
following other conditions are met:
(a)
Substantially equivalent medical services are unavailable within the patient's
locality.
(b) The
patient takes a reasonably direct travel route.
(c) It is reasonable, in the
circumstances, for the patient to travel to that place for the medical
services.
The individual
claiming travel expenses for the patient under paragraph 118.2(2)(h) may
also claim, under the same paragraph, the same kinds of travel expenses (that
is, reasonable travel expenses other than those referred to in paragraph
118.2(2)(g)) for one individual to accompany the patient as long as the
patient has been certified by a medical practitioner as being incapable of
travelling without an attendant
[4]
Mr. Bartlett stated that this
paragraph allowed an individual who accompanied a patient to claim reasonable
travel expenses and the patient can claim the same reasonable travel expenses. In
other words, the claim for travel expenses can be duplicated. His
interpretation is based on the fact that both the word “individual” and the
word “patient” are used in this paragraph.
[5]
However, the two words
do not necessarily refer to two separate persons. Paragraph 118.2(2)(a)
of the Act states that the medical expense of an individual is an amount
paid for services provided to a patient who is the individual, the individual’s
spouse or common-law partner or a dependant. Paragraph 118.2(2)(a) reads
as follows:
(2) Medical
expenses -- For the purposes of subsection (1), a medical expense of an
individual is an amount paid
(a) [medical
and dental services] – to a medical practitioner, dentist or nurse or a
public or licensed private hospital in respect of medical or dental services provided
to a person (in this subsection referred to as the “patient”) who is the
individual, the individual’s spouse or common-law partner or a dependent of the
individual (within the meaning assigned by subsection 118(6)) in the taxation
year in which the expense was incurred;
[6]
Paragraph 118.2(2)(h) of
the Income Tax Act (the “Act”) reads as follows:
(2) Medical expenses -- For the purposes of subsection (1), a
medical expense of an individual is an amount paid
(h) [travel expenses] -- for reasonable travel expenses
(other than expenses described in paragraph (g)) incurred in respect of the
patient and, where the patient was, and has been certified by a medical
practitioner to be, incapable of travelling without the assistance of an
attendant, in respect of one individual who accompanied the patient, to obtain
medical services in a place that is not less than 80 kilometres from the
locality where the patient dwells if the circumstances described in
subparagraphs (g)(iii), (iv) and (v) apply;
[7]
Neither paragraph 33 of the
Interpretation Bulletin nor paragraph 118.2(2)(h) of the Act
bears the interpretation given by Mr. Bartlett. As well, the initial clause in
subsection 118.2(2) of the Act makes it clear that the medical expense
of an individual has to be an amount that is paid. The amount of $7,357 included the travel expenses for the
Appellant and for her spouse. This amount
was paid only once and it can be claimed only once.
[8]
The appeal is dismissed.
Signed at Halifax, Nova Scotia, this 4th day of September 2008.
“V. A. Miller”
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