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Citation: 2004TCC18
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Date: 20040108
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Docket: 2003-2614(IT)I
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BETWEEN:
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DAVID H. SELENT,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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____________________________________________________________________
REASONS FOR JUDGMENT
Beaubier, J.
[1] This appeal pursuant to the
Informal Procedure was heard at Nanaimo, British Columbia on
November 28, 2003. The Appellant was the only witness.
[2] Paragraphs 3 to 9 inclusive of the
Reply to the Notice of Appeal outline the disputes. They
read:
3. In
computing taxes payable for the taxation year, the Appellant
claimed medical expenses of $13,845.03.
4. The
Minister of National Revenue (the "Minister") initially
assessed the Appellant for the 2001 taxation year on May 2,
2002 as filed by the Appellant.
5. The
Minister reassessed the Appellant on February 21, 2003 and
reduced the medical expenses to $8,000.35, thereby disallowing
5,844.68 (the "Amount").
6. In response
to a Notice of Objection filed by the Appellant, the Minister
confirmed the assessment for the 2001 taxation year.
7. In so
confirming for the 2001 taxation year, the Minister relied on the
following assumptions of fact:
a) the
Appellant claimed medical expenses of $13,845.03 in 2001, the
deductible portion of which was $12,167.03;
b) the Amount
was disallowed in the 2001 taxation year;
c) the Amount
consisted of expenses incurred in 2001 in respect of vitamins,
herbal remedies, supplements, etc;
d) the Amount
was not paid in respect of drugs, medicaments or other
preparations or substances manufactured, sold or represented for
use in the diagnosis, treatment or prevention of a disease,
disorder, abnormal physical state, or the symptoms thereof or in
restoring, correcting or modifying an organic function, purchased
for use by the Appellant as prescribed by a medical practitioner
or dentist and as recorded by a pharmacist; and
e) the Amount
was not paid in respect of medical expenses as described in
subsection 118.2(2) of the Income Tax Act ( the
"Act").
B. ISSUE
TO BE DECIDED
8. The issue
is whether the Appellant is entitled to deduct the Amount as
medical expenses in the 2001 taxation year.
C.
STATUTORY PROVISIONS RELIED ON
9. He relies
on section 118.2 of the Act and on section 5700 of the
Regulations, as amended for the 2001 taxation year.
[3] Assumptions 7 a), b) and c) were
not refuted by the evidence.
[4] Assumption 7 e) is dependent upon
the validity of assumption 7 d) which the Appellant disputed.
[5] Paragraph 118.2(2)(n) of
the Income Tax Act (the "Act") allows a
claim:
118.2(2)
...
(n) for
drugs, medicaments or other preparations or substances (other
than those described in paragraph (k)) manufactured, sold
or represented for use in the diagnosis, treatment or prevention
of a disease, disorder, abnormal physical state, or the symptoms
thereof or in restoring, correcting or modifying an organic
function, purchased for use by the patient as prescribed by a
medical practitioner or dentist and as recorded by a
pharmacist;
[6] In particular, the Appellant
submitted Exhibit A-4, a letter dated July 11, 2003
(approximately 18 months after the year in question) by Erika
Gregory, a qualified, licensed pharmacist which
"recorded" the items described in assumption 7 d) which
the Appellant purchased from his naturopathic physician, Dr.
Ingrid Pincott. At the end of this letter, Ms. Gregory
specifically wrote:
"Disclaimer: I did not prepare, dispense or supply any of
the items listed above. None of these items was supplied from a
licensed pharmacy. I was not involved at all in the treatment of
this individual." (Namely, the Appellant).
[7] The Appellant argued that Exhibit
A-4 constituted a record and met the provisions of paragraph
118.2(2)(n). However the Court does not accept this
argument. The use of the word "recorded" in paragraph
(n) is in the past tense and is used conjunctively in the
paragraph. The meaning is, therefore, that together, at the
appropriate times the items must be prescribed by a medical
practitioner and conjunctively recorded by a pharmacist as
part of the prescription process ending in the taxation year in
question.
[8] That did not happen in this case.
The Appellant purchased the items from his naturopathic
physician.
[9] For this reason, the appeal is
dismissed.
Signed at Saskatoon, Saskatchewan, this 8th day of January,
2004.
Beaubier, J.
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