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Docket: 2004-235(IT)I |
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BETWEEN: |
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KEITH JORGENSON, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
____________________________________________________________________
Appeal heard on June 4, 2004 at Saskatoon, Saskatchewan
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Before: The Honourable Justice D.W. Beaubier |
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Appearances: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent: |
Anne Jinnouchi |
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JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 2001 taxation year is dismissed in accordance with the attached Reasons for Judgment.
Signed at Calgary, Alberta, this 14th day of June 2004.
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"D.W. Beaubier" |
Beaubier, J.
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Citation: 2004TCC422 |
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Date: 20040614 |
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Docket: 2004-235(IT)I |
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BETWEEN: |
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KEITH JORGENSON, |
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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
Beaubier, J.
[1] This appeal pursuant to the Informal Procedure was heard at Saskatoon, Saskatchewan, on June 4, 2004. The Appellant testified and called his father, Murray Jorgenson, and Sally Greenough, B.A., B. Ed., M. Ed. The Respondent called Yvonne Provost, an Appeals Officer.
[2] Paragraphs 6 to 11 of the Reply to the Notice of Appeal set out the matters in dispute. They read:
6. By letter received December 23, 2002, the Appellant requested an adjustment to his 2001 income tax return to allow the Disability Amount.
7. The Appellant was denied his request in a letter dated March 3, 2003 issued by N. Rawluk in T1Client Services of the Canada Customs and Revenue Agency.
8. By letter dated July 11, 2003 the time period in which to file a Notice of Objection was extended to the date of the letter.
9. In response to the Notice of Objection, the Minister confirmed the assessment for the 2001 taxation year by means of a Notification of Confirmation dated October 10, 2003 as the Appellant was not markedly restricted in his ability to perform an activity of daily living.
10. In so assessing the Appellant and in so confirming that assessment, the Minister relied on the same facts as follows:
(a) the Appellant sought to claim the credit for the Disability Amount for himself in respect of his ability to perceive, think and remember;
(b) the above described impairment did not markedly restrict the Appellant's ability to perform a basic activity of daily living in the 2001 taxation year;
(c) in a report issued April 17, 1992 by Pauline Greenough, M.ED., N.F.F. (London), an Associate Professor at the University of Saskatchewan with the Department for the Education of Exceptional Children, College of Education:
(i) test results/comments indicate that:
(a) the results of the Raven's Progressive Matrices Test, a test of non-verbal logical reasoning and thus presumably not affected by a language learning disability, showed that the Appellant did exceptionally well scoring above the 95%ile, in the tip 5% of the population which is described as the "intellectually superior" group;
(b) the results of the Peabody Picture Vocabulary Test, which has a high correlation with tests of verbal intelligence, the Appellant scored at the 81st percentile, a high score even compared with university students and this test measures understanding of words heard;
(c) the Appellant's written language vocabulary assessed using the Test of Adolescent Language was at the 84th percentile, again a superior score;
(d) his performance reading silently, using the Gapadol Reading Comprehension (Cloze) Test, though adequate (65%) is not the level expected from a student with the Appellant's intellectual calibre; and
(e) in the Advanced Reading Inventory (Johns) the Appellant was able to read and understand the College level paragraphs; and
(ii) the conclusion was that the Appellant was a "very intelligent eighteen year old who has a neurologically based learning disability, dysgraphia/dyslexia";
(d) the Disability Tax Credit Certificate signed on December 6, 2002 by Sally Greenough, a registered psychologist indicating:
(i) the Appellant was born on June 8, 1973;
(ii) the Appellant could not perceive, think and remember all or almost all of the time;
(iii) the Appellant was diagnosed with a severe and prolonged lifelong learning disability; and
(e) the Appellant is not entitled to include the Disability Amount in the computation of his non-refundable tax credits and tax payable for the 2001 taxation year.
B. ISSUES TO BE DECIDED
11. The issue is whether the Appellant was entitled to a Disability Amount under section 118.3 of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp) (the "Act").
[3] None of the assumptions were refuted by the evidence.
[4] Ms. Greenough signed the required Certificate without examining the Appellant. She did so based on her mother (a psychologist who is now 77) having treated the Appellant as a school-boy and again when he was in university some years ago. Ms. Greenough's mother filled in the form without any current examinations of the Appellant. For these reasons, the Certificate is valueless.
[5] The Certificate states that the Appellant, who was born in 1973 and has a B.A. (English) and a B. Ed. cannot "perceive, think and remember". The form further states "...answer no if he or she cannot manage or initiate personal care without constant supervision". "No" was checked. On the evidence, the Certificate is false.
[6] In 2001 the Appellant was a professional, employed teacher in Saskatchewan. He is a bachelor. For the first five months of the year he lived on his own in a house in Punnichy, Saskatchewan and for the year he provided for himself, handled his own investments, bills and banking. He initiated and participated in a team which attempted to get a research grant. Later in 2001 he moved to Saskatoon to assist in caring for his dying grandmother who had raised him. In 2002 he purchased a house.
[7] Based upon Ms. Greenough's evidence, the Appellant may have succeeded in compensating for his disability over the years.
[8] But in any event, the evidence is patently clear that the Appellant does not have a disability within the meaning and terms of the Income Tax Act, and did not have one in 2001.
[9] The Appeal is dismissed.
Signed at Calgary, Alberta, this 14th day of June 2004.
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"D.W. Beaubier" |
Beaubier, J.
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CITATION: |
2004TCC422 |
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COURT FILE NO.: |
2004-235(IT)I |
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STYLE OF CAUSE: |
Keith Jorgenson v. The Queen |
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PLACE OF HEARING: |
Saskatoon, Saskatchewan |
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DATE OF HEARING: |
June 4, 2004 |
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REASONS FOR JUDGMENT BY: |
The Honourable Justice Beaubier |
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DATE OF JUDGMENT: |
June 14, 2004 |
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APPEARANCES: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent: |
Anne Jinnouchi |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
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Firm: |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |