Paturel v. R., [1999] 2 CTC 2774

St-Onge T.C.J. (orally):

The appeal of Guy Paturel was heard in the City of Montréal, Province of Quebec, on July 30, 1996. The point for determination is whether the appellant is entitled to a tax credit for severe and prolonged mental or physical impairment in computing his total non-refundable tax credits.

In his reply to the notice of appeal, the respondent alleges the following:

[TRANSLATION]

2. When the appellant filed his returns of income for the 1986 and 1987 taxation years, he did not claim any deductions for severe and prolonged mental or physical impairment in computing his taxable income.

3. When the appellant filed his returns of income for the 1988, 1989 and 1990 taxation years, he did not claim any tax credits for severe and prolonged mental or physical impairment in computing his total non-refundable tax credits.

4. When the appellant filed his return of income for each of the taxation years 1991, 1992 and 1993, he claimed tax credits of $700.05 ($4,118.00 x 17%) for severe and prolonged mental or physical impairment in computing his total non- refundable tax credits for the 1991 taxation year and of $719.61 ($4,233.00 x 17%) for each of the taxation years 1992 and 1993.

5. In accordance with subsection 152(1) of the Income Tax Act (the “Act”), the Minister of National Revenue (the “Minister”) issued notices of assessment to the appellant on June 29, 1992, for the 1991 taxation year, on July 13, 1993, for the 1992 taxation year and on May 9, 1994, for the 1993 taxation year.

6. On April 9, 1992, the appellant sent the Minister a letter asking him to revise his returns of income for the 1986, 1987, 1988, 1989 and 1990 taxation years to allow him the deduction provided for in subsection (2) for the 1986 and 1987 taxation years and the non-refundable tax credit provided for in subsection (3) for the 1988, 1989 and 1990 taxation years. He filed a duly completed T2201 form for this purpose.

7. On March 26, 1993, the Minister notified the appellant that his form T2201. “Disability Tax Credit Certificate”, had been submitted to the disability advisory service of Health and Welfare Canada, as provided for in subsection 118.3(4) of the Act, and that, based on the findings of their assessment, he could not allow the disability deduction for the 1986 and 1987 taxation years or the non-refundable disability tax credit for the 1988, 1989, 1990 and 1991 taxation years since the requirements for the purposes of section 118.3 of the Act had not been met. Furthermore, he notified the appellant that a notice of reassessment would be issued to him for the 1991 taxation year and the non-refundable disability tax credit previously allowed would thus be disallowed.

8. On November 2, 1994, the Minister notified the appellant that, based on the review conducted by the medical advisers at Human Resources Development (Health and Welfare Canada) for the 1992 and 1993 taxation years, it had been determined that he was still not entitled to the non-refundable disability tax credit and that his returns of income for the 1992 and 1993 taxation years would be revised so as to disallow the non-refundable disability tax credit previously allowed.

9. In notices of reassessment dated April 1, 1993, for the 1991 taxation year and November 10, 1994, for the 1992 and 1993 taxation years, the Minister denied the appellant the $700.06 non-refundable tax credit for severe and prolonged mental or physical impairment which he had claimed for the 1991 taxation year, and the $719.61 that he had claimed in the same respect for each of the 1992 and 1993 taxation years.

10. On April 16, 1993, the appellant filed a notice of objection. The notice of objection refers to the 1991 and 1992 taxation years.

11. On October 28, 1994, the Minister notified the appellant that his notice of objection concerned only the 1991 taxation year.

12. On November 7, 1994, the Minister sent the appellant a notice of confirmation relating solely to the reassessment for the 1991 taxation year, because the notice of objection that could have covered the 1992 taxation year had been filed on April 16, 1993, and the notice of assessment for that taxation year had been issued on July 13, 1993.

13. The appellant appealed to the Tax Court of Canada on November 18, 1994.

14. In his notice of appeal, the appellant did not state the taxation year for which he was appealing. However, he stated that he disagreed with Revenue Canada’s decision.

15. A letter from the Tax Court of Canada dated December 23, 1994, indicates that the taxation years appealed are 1992 and 1993.

16. While the appeal instituted by the appellant concerns the 1991, 1992 and 1993 taxation years, he contends that this Honourable Court does not have juris- diction to rule on the appeal for the 1992 taxation year since the notice of objection dated April 16, 1993, preceded the notice of assessment for the 1992 taxation year, which is dated July 13, 1993. Furthermore, this Honourable Court does not have jurisdiction to rule on the appeal for the 1993 taxation year given that the appellant did not object to the assessment dated May 9, 1994, for the 1993 taxation year within the time allowed and that he failed to object by notice of objection to the reassessment issued by the Minister on November 10, 1994, for the 1993 taxation year.

17. In making and confirming his reassessment dated April 1, 1993, for the 1991 taxation year and his reassessments dated November 10, 1994, for the 1992 and 1993 taxation years, the Minister made the following assumptions of fact, inter alia: (a) the appellant filed a disability tax credit certificate duly signed by a physician; (b) the appellant’s case was referred to the physicians at Health and Welfare Canada, who determined that, based on the information received, the appellant showed no evidence that his illness markedly restricted his ability to perform a basic activity of daily living; (c) during the 1991, 1992 and 1993 taxation years, the appellant was not markedly restricted by any impairment whatever in performing a basic activity of daily living.

18. The points at issue are: (a) whether the appellant’s appeal related solely to the 1991 taxation year or for the 1991, 1992 and 1993 taxation years; (b) whether this Honourable Court has jurisdiction to rule with respect to the 1992 and 1993 taxation years and (c) whether, if the appeal concerns the 1991 taxation year, the appellant is entitled to a non-refundable tax credit for severe and prolonged mental or physical impairment under subsection 118.3(1) of the Act.

19. He relies, inter alia, on sections 165 and 166.1 and subsections 118.3(1), 118.3(4), 118.4(1), 169(1) and 248(1) of the Act, as amended and applicable to the 1991 taxation year.

20. He contends that, if the appeal relates to the 1992 and 1993 taxation years, it must be dismissed since (a) the objection filed by the appellant for the 1992 taxation year was filed before the notice of assessment for the 1992 taxation year was issued by the Minister: the objection was filed on April 16, 1993, and the notice of assessment was issued by the Minister on July 13, 1993; furthermore, (b) the appellant failed to file a notice of objection to the reassessments dated November 10, 1994, issued by the Minister for the 1992 and 1993 taxation years, as required by subsection 169(1) of the Acct.

21. He contends that, for the 1991 taxation year, the appellant is not entitled to a non-refundable disability tax credit under paragraph 118.3(1) (a.1) of the Act because the appellant’s ability to perform a basic activity of daily living was not markedly restricted as a result of the impairment.

At the hearing, the appellant admitted all the paragraphs from 2 to 16 inclusive of the reply to the notice of appeal.

In light of these admissions, the Court finds that it does not have jurisdiction and the appeal for the 1988 to 1990 and 1992 and 1993 taxation years is dismissed. As to 1991, the respondent filed the medical report provided by the appellant for the disability tax credit.

According to that report, the appellant is able to feed and dress himself and control his bowel and bladder functions. He has a marked loss of function in the left shoulder, with no possibility of active movement, and chronic instability in the right knee that sometimes causes him to fall, but the report states that he can walk a distance of 100 metres. Consequently, it has been shown that the appellant is able to perform basic activities of daily living within the meaning of subsections 118.3(1) and 118.4(1) of the Income Tax Act. The appeal is dismissed.

Appeal dismissed.