96-2288(IT)I
BETWEEN:
GERALD JAMES CARMEN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on January 13, 1998, at Sudbury, Ontario, by
the Honourable Judge D.G.H. Bowman
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Natalie Goulard
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 1994 taxation year is allowed and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment to allow the appellant the disability tax credit provided by section 118.3.
The appellant is entitled to his costs, if any.
Signed at Ottawa, Canada, this 30th day of January 1998
|
"D.G.H. Bowman" |
J.T.C.C.
Date: 19980130
Docket: 96-2288(IT)I
BETWEEN:
GERALD JAMES CARMEN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Bowman, J.T.C.C.
[1] This is an appeal from an assessment for 1994 whereby the Minister of National Revenue refused to allow the appellant the disability tax credit provided by section 118.3 of the Income Tax Act.
[2] The issue is whether in that year Mr. Carmen had a severe and prolonged physical disability, the effects of which were to markedly restrict his ability to perform a basic activity of daily living.
[3] Mr. Carmen was involved in an automobile accident in 1983. His left hand was amputated at the wrist. It was surgically reattached. Complications developed and further surgery was required. He still has his left hand, but for all practical purposes it is useless. I suspect he might, with the benefit of hindsight, have been better off with a prosthetic device. The left hand can hold or grip nothing of any significance and the mobility in the hand, wrist and fingers is minimal.
[4] Mr. Carmen put in evidence a letter from the surgeon who reattached his hand and with whom he has continued to consult. I allowed the letter to be adduced since the case was being heard under the informal procedure. (see Ainsley v. The Queen, A-610-96 (May 26, 1997)). Following the decision of the Federal Court of Appeal in Calwell v. R., [1996] 1 C.T.C. 1 it is an error in law to inform a taxpayer that the court will accord less weight to unsworn testimony without explaining that a doctor may be subpoenaed. Since that decision, the explanation of a taxpayer's rights with respect to subpoenas accompanies the notice of hearing. As a practical matter, in a disability tax credit case, it is a little unrealistic to expect an appellant to subpoena a doctor in Toronto to appear in Sudbury, and pay him or her up to $300 per day plus travelling expenses.
[5] Dr. Manktelow's letter reads as follows:
June 4, 1996
TO WHOM IT MAY CONCERN:
Re: Mr. Gerald Carmen
This letter is written to further clarify this patient's medical condition and his subsequent disability. He sustained an amputation of his left hand at the wrist in 1983 and this was re-attached. There were some difficulties following the re-attachment with infection and wound breakdown and he required further surgery including some muscle and skin that was transferred from his leg. Subsequently he has developed a range of some motion of the fingers and he can use this for some activities. Sensation is not good enough to make use of the hand for activities which require knowing what you are touching.
Functionally this hand is virtually of no value to him and should be recognized as being totally disabled with respect to the left hand. In addition he is having increasing problems with his right hand because of over use with weakening and discomfort of the hand that effects him when he is trying to do the normal functions of eating, dressing and other self-care.
Therefore I would rate his impairment as being severe with respect to the basic activities of daily living and to be permanent. I trust this is helpful to you.
[6] Physicians' opinions are useful and may be an important factor in cases of this type, but they are not determinative. Ultimately, the decision must be based upon the court's appreciation of all of the evidence and, most importantly in the majority of cases, on the court's observation of the appellant and upon the viva voce testimony.
[7] In Lana Cornect Brennan v. The Queen, 95-3174(IT)I, September 22, 1997, I held that the parents of a four month old infant with only one hand were not entitled in the child's first year of life to claim the credit because at that age any child is incapable of performing any activity of daily living, irrespective of any disability she might have. I went on to say that as the child grew older the entitlement to the credit would probably increase. The observation was obiter dictum, but it happens to express my view.
[8] Mr. Carmen submitted a long list of things that he could not do or had difficulty doing with only one hand. Many of them have nothing to do with the basic activities of daily living listed in section 118.4 of the Income Tax Act. So far as that section is concerned, the real problem is with feeding and dressing himself. He testified that he has difficulty feeding himself unless his wife cuts his food up. He also has trouble dressing himself and needs to enlist the aid of his wife. He cannot pull up zippers, do up buttons or tie his shoes.
[9] One aspect of Mr. Carmen's testimony caused me some difficulty. He stated that the effect of having a virtually useless left hand has increased strain on his right hand, which thereby became weaker. I find this very hard to believe. I should have thought that the right hand would become stronger to compensate for the loss of the left hand. Nonetheless, I accept Mr. Carmen's testimony. It is supported by the letter of Dr. Manktelow quoted above.
[10] I find that Mr. Carmen qualifies for the disability tax credit on the basis either that he cannot dress and feed himself or that he requires an inordinate amount of time to do so.
[11] The appeal is therefore allowed and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment to allow the appellant the disability tax credit provided by section 118.3.
[12] The appellant is entitled to his costs, if any.
Signed at Ottawa, Canada, on this 30th day of January 1998.
|
"D.G.H. Bowman" |
J.T.C.C.
COURT FILE NO.: 96-2288(IT)I
STYLE OF CAUSE: Gerald James Carmen and
Her Majesty The Queen
PLACE OF HEARING: Sudbury, Ontario
DATE OF HEARING: January 13, 1998
REASONS FOR JUDGMENT BY: D.G.H. Bowman
DATE OF JUDGMENT: January 30, 1998
APPEARANCES:
For the Appellant: The Appellant himself
Counsel for the Respondent: Natalie Goulard
COUNSEL OF RECORD:
For the Appellant:
Name: --
Firm: --
For the Respondent: George Thomson
Deputy Attorney General of Canada
Ottawa, Canada