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Citation:2004TCC90
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Date: 20040211
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Docket: 2003-1338(IT)I
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BETWEEN:
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EILEEN M. CHOMISTEK,
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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
[1] This appeal pursuant to the
Informal Procedure was heard at Calgary, Alberta on January 23,
2004. The witnesses were the Appellant's daughter, Suzanne
Vallally, and her psychiatrist, Dr. Stewart Sanders. At all
material times the Appellant was diagnosed and suffered from
bipolar affective disorder and, commencing in the summer of 1999,
frontal temporal dementia. The taxation (and calendar) years
under appeal are 1999 and 2000.
[2] The Appellant was represented at
the hearing by a solicitor who is henceforth ordered to be the
addressee in this matter of the Appellant, namely:
Shea
Nerland Calnan
1900,
715-5th Ave SW
Calgary, Alberta T2P 2X6
Telephone: (403) 299-9600
Fax:
(403) 299-9601
[3] Paragraphs 7 to 15 inclusive of
the Reply to the Notice of Appeal outline the matters in dispute.
They read:
7. In
computing her income tax liability for the 1999 and 2000 taxation
years, the Appellant claimed, in calculating the medical expense
credit, medical expenses in the amount of $17,775.00 for 1999 and
$18,680.00 for 2000.
8. The
original notices of assessment for the 1999 and 2000 taxation
years were dated and mailed to the Appellant on June 8, 2000 and
June 18, 2001, respectively.
9. In
reassessing the Appellant for the 1999 taxation year on November
14, 2000 and in assessing the Appellant for the 2000 taxation
year on June 18, 2001, the Minister of National Revenue (the
"Minister") reduced the claim for medical expenses by
$17,125.00, from $17,775.00 to $650.00 for 1999 and by $18,000.00
from $18,680.00 to $680.00 for 2000.
10. In further reassessing
the Appellant for the 1999 taxation year on April 2, 2001 and for
the 2000 taxation year on April 25, 2002, the Minister allowed
the Appellant the credit for mental and physical impairment in
the amount of $4,233.00 and $4,293.00 for each year
respectively.
11. In so assessing the
Appellant, the Minister made the following assumptions of
fact:
(a) the Appellant
has been diagnosed with bipolar
disorder;
(b) the Appellant
paid rent totalling $17,125.00 for 1999 and $18,000.00 for 2000
to Canyon Meadows;
(c) the Appellant
claimed the rent she paid to Canyon Meadows as a medical expense
in the 1999 and 2000 taxation years;
(d) Canyon Meadows
is not a nursing home;
(e) Canyon Meadows
is a retirement home wherein the residents live
independently;
(f) at all
times, the Appellant lived in her own apartment at Canyon
Meadows;
(g) Canyon Meadows
does not provide full-time care to its residents;
(h) Canyon Meadows
does not retain any medical personnel on staff, rather medical
personnel would have to be called if an emergency arose; and
(i) the
amounts paid to Canyon Meadows were not amounts paid for the
care, or the care and training, at a school, institution or other
place of the Appellant 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 Appellant.
B.
ISSUE TO BE DECIDED
12. The issue to be
decided is whether the Minister properly disallowed the amounts
of $17,125.00 for 1999 and $18,000.00 for 2000 that were paid to
Canyon Meadows and claimed as medical expenses by the
Appellant.
C.
STATUTORY PROVISIONS, GROUNDS RELIED ON AND RELIEF
SOUGHT
13. He relies on sections
118.2 and 118.3 of the Income Tax Act, R.S.C. 1985 (5th
Supp.) c.1, (the"Act") as amended for the 1999
and 2000 taxation years.
14. He submits that the
amounts of $17,125.00 for 1999 and $18,000.00 for 2000 that were
paid to Canyon Meadows were not medical expenses within the
meaning of subsection 118.2(2) of the Act. Accordingly,
the Appellant is not entitled to claimed these amounts in
calculating the medical expenses credit for the 1999 and 2000
taxation years pursuant to subsection 118.2(1) of the
Act.
15. He further submits
that, if this Honourable Court should find that Appellant is
entitled to claim the amounts of $17,125.00 for 1999 and
$18,000.00 for 2000 as remuneration for an attendant or care in a
nursing home pursuant to section 118.2 of the Act,
otherwise than because of paragraph 118.2(2)(b.1) of the
Act, which is not admitted but is denied, the Appellant is
not entitled to the credit for mental or physical impairment
allowed in the amount of $4,233.00 for 1999 and $4,293.00 for
2000.
[4] Assumptions 11 (a), (b), (c), (d),
and (f) are correct.
[5] Respecting the remaining
assumptions:
11(e) The residents of Canyon Meadows do not live
independently. There are varying amounts of supervision and care
provided. Housekeeping is provided. Meals are provided. A
podiatrist is provided. In the years in question Canyon Meadows
was managed by two Registered Nurses, one of whom was on duty
throughout 24 hours of each day. They resided at Canyon
Meadows.
11(g) Is not altogether correct. After Mrs. Chomistek
was hospitalized in 1999, Dr. Sanders and Ms. Vallally each,
separately, personally visited, met with, and arranged with
Canyon Meadows in 1999 that its staff would supervise Mrs.
Chomistek taking her medication; take her to meals, if necessary;
and supervise and direct Mrs. Chomistek respecting her personal
hygiene. Dr. Sanders directed them to contact him on a 24-hour
basis if Canyon Meadows' staff felt that he was required to
attend upon Mrs. Chomistek. On Dr. Sanders' instructions
Canyon Meadows agreed to support, supervise, observe and care for
Mrs. Chomistek to the extent already described herein. Dr.
Sanders stated that if Canyon Meadows had failed to do these
things Mrs. Chomistek would presently be in a hospital or a
nursing home.
11(h) Canyon Meadows did provide management by two Registered
Nurses during the years in question.
11(i) Is the subject of the dispute.
[6] The dispute between the parties
turns on whether Mrs. Chomistek's care in Canyon Meadows
qualifies under paragraph 118.2(2)(e) of the Income Tax
Act. It will, if Canyon Meadows' fees are paid by Mrs.
Chomistek:
118.2(2)(e) 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.
[7] In 1999 and 2000, referring to
paragraph (e):
1. Mrs. Chomistek was
receiving care at Canyon Meadows;
2. Dr. Sanders, a
psychiatrist, certified personally at the time and in Court, that
Mrs. Chomistek required the personnel specially provided by
Canyon Meadows for her care because of her sufferings from
bipolar affective disorder and frontal temporal dementia. In
fact, in 1999, Dr. Sanders prescribed the care which Mrs.
Chomistek needed at Canyon Meadows and left Canyon Meadows a
telephone number at which he was on call 24 hours per day by
Canyon Meadows staff for Mrs. Chomistek's care.
[8] The appeal is allowed, but the
Appellant is not entitled to the credits for her impairment
allowed in the amounts of $4,233.00 for 1999 and $4,293.00 for
2000. These matters are referred to the Minister for
reconsideration and reassessment accordingly.
[9] The Appellant is awarded her costs
pursuant to the Informal Procedure Rules.
Signed at Kelowna, British Columbia, this 11th day of
February, 2004.
Beaubier, J.
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