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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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Appeal heard on January 23, 2004 at Calgary, Alberta
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By: The Honourable Justice D.W. Beaubier |
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Appearances: |
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Counsel for the Appellant: |
Matthew Clark |
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Counsel for the Respondent: |
Dan Misutka |
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JUDGMENT
The appeals from the reassessments made under the Income Tax Act for the 1999 and 2000 taxation years are allowed, with costs, and the reassessments are referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.
Signed at Kelowna, British Columbia, this 11th day of February, 2004.
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"D.W. Beaubier" |
Beaubier, J.
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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. |
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.
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"D.W. Beaubier" |
Beaubier, J.
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CITATION: |
2004TCC90 |
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COURT FILE NO.: |
2003-1338(IT)I |
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STYLE OF CAUSE: |
Eileen M. Chomistek v. The Queen |
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PLACE OF HEARING: |
Calgary, Alberta |
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DATE OF HEARING: |
January 23, 2004 |
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REASONS FOR JUDGMENT BY: |
The Honourable Justice D.W. Beaubier |
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DATE OF JUDGMENT: |
February 11, 2004 |
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APPEARANCES: |
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Counsel for the Appellant: |
Matthew Clark |
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Counsel for the Respondent: |
Dan Misutka |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
Matthew Clark |
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Firm: |
Shea Nerland Calnan Calgary, Alberta |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |