Calvin Wesley Greaves v. Minister of National Revenue, [1977] CTC 2585, 78 DTC 1017

A W Prociuk:—The appellant, Calvin Wesley Greaves, appeals from the respondent’s reassessment of his income for the taxation year 1975 wherein a deduction of $4,405 representing tuition fees paid by the appellant to Heed University in Hollywood, Florida, USA, in the said year, in respect of a post-graduate program leading to a doctorate degree in Educational Administration was disallowed on the ground that the appellant was not in full-time attendance at the said university within the meaning of paragraph (e) of section 60 of the Income Tax Act which reads as follows:

60. There may be deducted in computing a taxpayer’s income for a taxation year such of the following amounts as are applicable:

(e) where the taxpayer was during the year a student in full-time attendance at a university outside Canada in a course leading to a degree, the amount of any fees for his tuition paid to the university in respect of a period not exceeding 12 months commencing in the year and not included in the calculation of a deduction under this subsection for a previous year except any such fees

(i) paid in respect of a course of less than 13 consecutive weeks’ duration, or

(ii) paid on his behalf by his employer to the extent that the amount thereof exceeds an amount included in his income for the year in which such payment was made in respect of such payment;

Briefly stated, the respondent’s position is that the appellant, during the 1975 taxation year, was a full-time employee with the Solicitor General’s Department of Penitentiaries as a supervisor of education and that he was not in full-time attendance at Heed University.

The appellant obtained a Master’s degree in Educational Administration at Queen’s University and in 1973 held a position of supervisor of education services with the Solicitor General’s Department in the Millhaven penitentiary. He was interested in continuing his academic work during his employment where he planned to devote all his spare time, weekends and holidays to that end. In the summer of 1974 the appellant proceeded to arrange for an appropriate post-graduate program leading to a doctorate degree in his field. He was unable to find a suitable program in a Canadian university. Heed University of Hollywood, Florida, USA offered such a program and the appellant travelled there to discuss the courses that would be required with the head of post-graduate studies. It was arranged there that he would enrol in one major course and two others. He was assigned supervisors to whom he would report from time to time and with whom he would confer on the progress of his dissertation. The university regarded him as a full-time student as long as he was able to produce 10 credits per semester. He was required to hand in 10 papers for each credit. The anticipated graduation date was set out as August of 1976 although, if my memory serves me correctly, the appellant obtained his PhD towards the end of that year. Daily physical attendance at the university for this program was not a requirement and indeed, in view of the nature of research and papers written, the appellant was able to work thereon wherever he found suitable material and at his own time.

The appellant’s ground of appeal is that, having complied with all the university’s requirements and having been regarded as a full-time student by the said university, he, in fact, complied with the provisions of the Income Tax Act and should be permitted to deduct the amount of tuition fees paid by him from his other income.

There were difficulties in the penitentiary in 1974 and the program which the appellant supervised had virtually closed down. While he remained as a full-time employee he did have more spare time to devote to his academic work than he had originally anticipated. He also worked on his own time every evening from 7:30 pm to 1:30 or 2:00 am, as well as on weekends. He spent 8 to 10 weekends in Boston where he travelled to meet and discuss his work with his supervisor. During the Christmas and Easier breaks as well as during his summer holidays he travelled to the university where he did further research and conferred with the faculty members there. He applied for and obtained permission to conduct an exploratory study in education within the Canadian Penitentiary Services, using 50 to 60 inmate Students from the Ontario Area Institutions. This was in respect of his doctoral dissertation. The purpose of that study was to “analyze selected academic factors associated with prisoner education and to determine motivational characteristics of inmate students enrolled in Community College programmes”. (See Exhibits A-4, A-5, A-6 and A-7.) Exhibit A-2 is a copy of the Heed University Semester Program Plan in which the appellant enrolled. It is, indeed, a most comprehensive program. It, by far, exceeds the minimal credit requirement and the appellant’s evidence in explanation thereof convinces me beyond any doubt that he worked constantly and assiduously to complete it in a little over two years. His physical attendance at the university during that period was approximately 60 days or so, in addition to his weekend trips to Boston to confer with his supervisor.

The issue to determine here is whether in the special circumstances of this case, the appellant is entitled to the benefits of paragraph 60(e) Supra. Does full-time attendance in this case mean day-to-day physical attendance in a classroom at the university? It is obvious that this was not necessary nor were there any courses that he could so follow. The university, as stated earlier, regarded him as a full-time student having regard to the nature of his program, his undertaking on enrolment and the results he produced in the course of his work. The university granted him his doctoral degree. It seems to me that one must recognize the difference between an enrolled undergraduate student seeking his first degree, where it is common knowledge that regular physical attendance is requisite, and a doctoral program such as the appellant pursued.

The circumstances of this case are exceptional indeed, and in my view, it would be unduly restrictive to interpret the words of the particular section in the narrow literal sense as the respondent seems to have done.

The appellant in my humble opinion, has amply discharged the onus the Income Tax Act places on him and is entitled to succeed. The appeal, accordingly, is allowed and the matter is referred back to the respondent for reassessment.

Appeal allowed.