Date: 20021112
Docket: 2002-2069-IT-I
BETWEEN:
SHELLEY G. COURSER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
__________________________________________________________________
For the Appellant: The Appellant herself
Counsel for the Respondent: Cecil Woon
____________________________________________________________________
Reasons for Judgment
(Delivered orally from the Bench at Saint John, New Brunswick,
on Tuesday, September 10, 2002 and revised as to style and syntax at
Ottawa, Canada on November 12, 2002)
Margeson, J.T.C.C.
[1] This case proceeded on the basis of an agreed statement of facts as follows:
AGREED STATEMENT OF FACTS
1. In computing income for the 2000 taxation year, the Appellant claimed the amount of $3,368.07 as a disability amount transferred from a dependant other than a spouse with respect to Doris Barton.
2. Doris Barton is eligible for the Disability Tax Credit in the 2000 taxation year. She suffers from Alzheimer's disease and has lived in a nursing home since February 1, 1999.
3. Doris Barton is the Appellant's grandmother and was born in 1915. She was a Canadian resident in the 2000 taxation year.
4. No person made a claim for Doris Barton as an "equivalent to spouse" in the 2000 taxation year and no one was eligible to make such a claim as Doris Barton's own funds were used to pay her nursing home costs during the 2000 taxation year.
5. No other persons was eligible to make a claim for Doris Barton on line 315 of the T1 General Form as the only home provided for her during the 2000 taxation year was a nursing home.
6. The Appellant has held a Power of Attorney for Doris Barton for several years prior to her admission to the nursing home.
7. The Appellant is responsible for arranging payment for a variety of family bills including Doris Barton's monthly nursing home costs as there is no contribution from the Province of New Brunswick for her costs. Funds used to pay these bills are Doris Barton's and her husband, Ronald Barton's.
8. The Appellant completed Doris Barton's Income Tax Return and made application on behalf of Doris Barton for the Senior's Low Income Tax Rebate and the Old Age Security Guaranteed Supplement in 2000.
9. The Appellant made application on behalf of Doris Barton to the New Brunswick Human Resources Department for financial assistance in 2000.
10. During the first two months of 2000, Doris Barton had a personal care person who was hired to go into the nursing home to assist her in getting up and with breakfast in the morning and someone else to go in and assist her with lunch. The Appellant was responsible for all matters relating to these people including their hiring and scheduling as well as ensuring that they received payment for their services. Payment was made bi-weekly. Payment for these services was from funds owned by Doris Barton.
11. The Appellant was responsible for ensuring that the nursing home hairdresser was paid for services provided to Doris Barton. Payment for these services was from funds owned by Doris Barton. There were 3 such payments made in 2000.
12. The Appellant was responsible for ensuring that the drug store was paid for the non prescription drugs and other items, including a wheelchair, that were purchased for Doris Barton. There were 4 such payments made in 2000. Payment for these services were from funds owned by Doris Barton.
13. During 2000, Doris Barton was part owner of a rental property. This property (was) sold by private sale and the Appellant who is a lawyer, was responsible for all legal matters relating to the sale of this property. Doris Barton's funds were used to pay $25.00 to a lawyer in Minto to take the signature of the Appellant as she had to sign the Deed on behalf of Doris Barton.
14. The Appellant was responsible for sending out Christmas cards and money gifts from Doris Barton and her husband to their children, grandchildren and great-grandchildren. Doris Barton's funds were used for these gifts.
15. Since Doris Barton lost both her false teeth and her glasses while at the nursing home in 2000, the Appellant had to arrange to have both of these replaced for her. Doris Barton's funds were used to purchase these items.
16. The Appellant assisted with and arranged for payment of renovations to the home of Doris Barton and Ronald Barton. Payment for these renovations were from Doris Barton's and Ronald Barton's funds.
17. The Appellant did not receive any compensation or reimbursement of personal expenses such as postage, gas, unbillable time spent during the work day or long distance calls charged to the Appellant's home for any of these services with the exception of the sale of the rental property for which she received $100.00 to pay for her gas for two trips to Minto for matters relating to the sale. Long distance calls charged to the Appellant's place of business were reimbursed to her business.
18. The Appellant did not pay for any of the above expenses with her own money. All payments were from funds owned by Doris Barton and/or Ronald Barton.
19. The Appellant did not contribute to or provide the basic necessities of food, clothing or shelter for Doris Barton.
[2] The Appellant did not provide the basic necessities of life, that is food, clothing and shelter to the resident Doris Barton who was her grandmother. What she did provide were ancillary services such as going to the bank for her, lining up appointments for her, paying her bills and other errands as set out in the agreed statement of facts. The grandmother had been in a nursing home since February 1, 1999. It is clear that no person made a claim as an "equivalent to spouse" in the taxation year in issue. No one was eligible to make such a claim.
[3] If the Appellant were eligible to claim the deductions here, one could see a situation where there might be other people who qualified as well. One might see a situation where two nieces, two aunts, two brothers or two sisters each provided some services to the disabled person. Who is entitled to make the claim? Would they only be entitled to make the claim for the amount of money which they expended? How would the Minister of National Revenue ("Minister") decide how much each one was entitled to claim?
[4] The Appellant argued that the accountant said that she qualified and that the only requirement was that the grandmother did not claim it. This was not a deduction. The claimant still had to meet the requirements of the section.
[5] She further argued that the amount that could be deducted would be decided by the Court but this was one tax credit that could be split. Her situation was not just having the grandmother over for dinner on occasion. She did something for her every day and she was going to continue to do these errands for her.
[6] The amounts expended all came from the funds of Doris Barton. All bills that were paid came out of her funds. The Appellant completed her income tax return or had it completed by someone else. She made a claim for an income tax rebate and the Old Age Security Guaranteed Supplement. She made application on behalf of Doris Barton to the New Brunswick Human Resources Department for financial assistance.
[7] The Appellant did make herself responsible for hiring and scheduling of people coming into the home to assist Doris Barton. Payment for these services were all made out of funds of Doris Barton and not out of those of the Appellant herself.
[8] The Appellant also made herself responsible for ensuring that the nursing home hairdresser was paid for services out of funds of Doris Barton. This was done three times in the year 2000.
[9] She also made herself responsible for ensuring that the drug store was paid for non-prescription drug items. She also was required to sign a deed under a power of attorney on behalf of Doris Barton. She sent out Christmas cards and money gifts on behalf of Doris Barton and her husband to the children. She arranged to have her false teeth repaired; assisted in arranging for paying for renovations and she did not receive any compensation for any of those services.
[10] There is no issue about what she did for the alleged "dependent". The whole question is whether or not the Appellant has satisfied the conditions set out in subsection 118(6) of the Income Tax Act ("Act").
[11] There are two terms there, "support" and "dependent". "Support" is referred to in subsection 118(5) of the Act but it does not say what support is and what it is not. So when it talks in terms of an amount it seems to this Court that the Act is attempting in some way to quantify it, that it must be an expenditure of a monetary nature by one on behalf of the person that is being claimed as a dependent.
[12] Since there is no clear definition of the terms "support" and "dependent", the Court is required to go to the dictionaries, and as in most cases, if you look through the dictionary you can find some definition that supports either side. In this particular case if one looks at the Merriam-Webster's Collegiate Dictionary, and considers the portion referred to by counsel for the Respondent it says:
"to pay costs of; to provide a basis for the existence or subsistence of".
[13] If the Court looks at the Appellant's reference, support can mean much different than that. It says to "assist or help". "The act or process of supporting", "the condition of being supported", "one that supports". If one looks at the definition in The Canadian Oxford Dictionary, again, there is assistance for both the Respondent's position and the Appellant's position. Starting at section 3a, "provide with a home and the necessities of life"; "provide enough food and water to keep someone or something alive"; "help by giving one's approval, sympathy, encouragement"; "be actively interested in"; "endure, tolerate"; "maintain or represent adequately" and a wide range of things which might entail what the Appellant did here.
[14] There can be no doubt that what the Appellant did was for the benefit of the person who was in the home. The question is, does it fall within the definition of "support" and does the paid grandmother fall under the definition of "dependent" of the Appellant?
[15] The Court is cognizant of what the Supreme Court of Canada said in Mattabi Mines Ltd. v. Ontario (Minister of Revenue).[1]This Court normally takes the position that interpretation bulletins are just that, they set out the position of the Minister with respect to how he is going to interpret a certain section of the Act. This Court has to decide what is the correct interpretation.
[16] In Mattabi, supra, at page 14, para. 28, the Court referred to Nowegijick v. The Queen,[2] where Dickson, J. said:
Administrative policy and interpretation are not determinative but are entitled to weight and can be an "important factor" in case of doubt about the meaning of the legislation: per de Grandpré, J., Harel v. Deputy Minister of Revenue of Quebec. . .
[17] It has been argued that an interpretation bulletin can be relied upon by a taxpayer in support of his position but not by the Minister. There is good logic for that argument.
[18] This Court is of the opinion that in the sections in issue today the Court should make a more restrictive interpretation, take a more restrictive view of what "dependent" is and what "support" is. This Court is satisfied that it would be almost impossible to enforce the section of the Act or give any meaning to the section of the Act if it were to interpret the meaning of "support" or "dependent" so broadly that almost any type of ancillary service that a person provides would qualify that person to claim the other as a "dependent". There would be real ambiguity in deciding just how much one could claim. If there were more than one person who might qualify, how much could each claim? How would you value such services?
[19] The Appellant maintains that once she provides a service she can claim the whole amount so long as no one else does, immaterial of the amount of money she expended or even if it cost her nothing. There is no evidence in this case that the Appellant expended any amount of money on the services.
[20] The only reasonable interpretation to give to this section would be that what the Act is talking about is providing support in the form of necessities of life such as food, clothing and shelter. The Court is also of the opinion that in order to be able to claim such a credit one must have expended the monies out of one's own resources, and one would have to quantify as to what was actually expended. This conclusion is not contrary to the definitions of "support" or "dependent" as found in the various definitions in the dictionaries. This interpretation is not contrary to the plain and ordinary meaning of the terms "support" and "dependent".
[21] The Appellant has not made out the case on a balance of probabilities that her grandmother was her dependent during the year in issue or that she expended any proven amount upon her as a result of that "dependency".
[22] The appeal is dismissed.
Signed at Ottawa, Canada, this 12th day of November 2002.
|
"T.E. Margeson" |
J.T.C.C.
COURT FILE NO.: 2002-2069(IT)I
STYLE OF CAUSE: Shelley G. Courser and
Her Majesty The Queen
PLACE OF HEARING: Saint John, New Brunswick
DATE OF HEARING: September 10, 2002
REASONS FOR JUDGMENT BY: The Honourable T.E. Margeson
DATE OF JUDGMENT: November 12, 2002
APPEARANCES:
For the Appellant: The Appellant herself
Counsel for the Respondent: Cecil Woon
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada