Jacejko v. R., [1999] 4 CTC 2032 (Informal Procedure)

Rowe D.J.T.C. (orally):

The Appellant appeals from an assessment of income tax for her 1994 taxation year. In computing her income for that year, the Appellant sought to claim a credit for tuition fees, of which the sum of $2,000.00 pertained to a tour of the Holy Land. The Holy Land Tour was organized by Newman Theological College. The Holy Land Tour was not part of any formal credit program at the institute or college and the Minister disallowed the tuition credit on the basis that the level of instruction on the Holy Land Tour was not at a postsecondary level and that the Holy Land Tour was not marketed to solicit people who had completed secondary school.

The evidence of the Appellant was to the effect that she is a teacher - a vice-principal - and that she had been taking courses in theological studies at Newman Theological College. Newman College was incorporated by an act of the Alberta Legislature and is an institution that has degree granting status at the Bachelor level - in one limited area - but generally speaking is an institution which grants post-graduate and masters degrees in theological studies with various branches such as pastoral studies or philosophy or aspects of studies in divinity.

The particular tour undertaken was arranged through the auspices of Newman College and the Appellant testified she understood it was a course sanctioned as a study course by Newman College, even though it was a noncredit course and she understood there was a tuition credit available. The particular nature of the tour was such that there was preparation beforehand and it had a substantial component of lecturing at the various sites in the Holy Land by Father Duchesneau: She indicated that 90 percent of the tour contained students or former students of Father Duchesneau who were continuing studies in the sense of having participated in this particular tour or otherwise were studying theology and related courses.

Mr. Fritze testified that, at the time, he was Executive Director of the College and the instigator of the travel program. He stated Newman College is owned by the Catholic Archdiocese of Edmonton and studies can be done there of full-time, part-time, by correspondence or a mixture of various programs, and that he consulted with the University of Alberta, Simon Eraser University in Burnaby and Grant MacEwan College in Edmonton, all of whom offer travel programs in connection with studies. They referred him to a particular Interpretation Bulletin from Revenue Canada. He also spoke to an individual at Revenue Canada and then with a person at the University of Alberta, but mostly with regard to the method by which one calculated the percentage of the total cost of the trip which would be properly and reasonably attributable to the educational portion, that would be the subject of a tuition credit based on a tax receipt.

1992 was the first tour operated and tours were offered in ’93, ’94, ’95 and Mr. Fritze then left the college in October of 1995 to go into the travel business, which operates these kinds of tours to the Holy Land and areas surrounding the Holy Land.

There was a letter introduced from the Ministry of Advanced Education indicating the Ministry in matters of education levels does not. and has not, dictated or determined for these adult education institutions when a program is or is not post-secondary. The Deputy Minister Lynn Duncan, in a letter dated February 12 , 1996, which was entered as Exhibit A-l, in the third paragraph said,

We can confirm that Newman Theological College is operating as we would expect it to operate under its Act of Incorporation. Newman Theological College’s promotion and management of non-credit continuing education offerings is entirely consistent with the promotion and management of these offerings at other adult educational institutions.

There are no specific regulations in place which assist us in defining courses at the post-secondary level. The evidence here and the material filed in relation to the particular brochures describing the tour and the evidence of the Appellant and Mr. Fritze satisfy me that, certainly, the educational component here was substantial, was at the post-secondary level and was being offered in the context of Newman Theological College as the sponsor and organizer and that this particular college is an educational institution which, in fact, provides courses at a post-secondary school level.

The fear, I suppose, of the Minister is that on a wide basis there may be individuals or institutions taking unfair advantage and therefore offering trips which are little more than a disguise in order that participants can obtain some tax relief; but if that occurs the Minister will have to deal with the situation on a case by case basis.

In this particular instance, the issue before me is whether or not the Minister was correct in disallowing that tuition credit. When I look at the wording of section 118.5 governing the tuition credit, I am, in fact, satisfied that the Appellant was, during the year, a student enrolled in an educational in- stitution, Newman Theological College, which is a college that provides courses at a post-secondary school level, and further, that the particular course, comprised of the Holy Land Tour, was a course in respect of a subject matter that was at the post-secondary school level.

It is not for me - or for the Minister - to say, unless there is clear evidence to that effect, that Newman Theological College is not capable, itself, of defining whether a particular course is a course at the post-secondary school level. Certainly the Minister of Education in Alberta does not intervene, and I fail to see why I should substitute my opinion, which in any event would be on the basis of the evidence and looking at the material consistent with the determination that, yes, it was a course that was offered at the post-secondary school level.

The evidence also satisfies me that the attribution of the $2,000.00, of the total tour cost of $5,000.00 or more, was one that was reasonable and carried out in utmost good faith after Mr. Fritze had done as much research into that field as he possibly could do by conferring with other educational institutions - two of which are right here in Edmonton - and having reference to the appropriate Interpretation Bulletins.

Therefore, the appeal is hereby allowed and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the tuition credit in the sum of $2,000.00 for fees paid to Newman Theological College be allowed. No costs.

Appeal allowed.