Court File No. 2008-913(IT)I
TAX COURT OF CANADA
BETWEEN:
MESFIN HAGOS
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
HEARD BEFORE ASSOCIATE CHIEF JUSTICE ROSSITER
in the Courts Administration Service, Courtroom 6B,
180 Queen Street West,
Toronto, Ontario
on Tuesday, September 30, 2008 at 10:50 a.m.
ORAL REASONS FOR JUDGMENT
APPEARANCES:
Mesfin Hagos Self-represented
Ms. Sharon Lee For the Respondent
Also Present:
Mr. William O'Brien Court Registrar
Ms. Linda O'Brien Court Reporter
A.S.A.P. Reporting Services Inc. 8 2008
200 Elgin Street, Suite 1105 130 King Street West, Suite 1800
Ottawa, Ontario K2P 1L5 Toronto, Ontario M5X 1E3
(613) 564-2727 (416) 861-8720
Toronto, Ontario
‑‑‑ Upon commencing the Decision on Tuesday,
September 30, 2008 at 10:50 a.m.
JUSTICE ROSSITER: The Court will deliver its judgment now.
This particular case concerns a reassessment of the appellant's 2004 taxation year where the Minister of National Revenue disallowed the deduction in the amount of $35,000 under section 118, 118.2, medical expense tax credit of the Act.
It appears that the appellant became aware in December 2002 that his twin brother Assefa Hagos was extremely ill. Assefa had at one point in time been a Canadian resident. However, it appears in 1998 he became a resident of Eritrea and remained a resident of Eritrea until his death in February 2003.
The appellant claims that he incurred certain expenses in the amount of $35,000 which he seeks to deduct from the computation of his income for 2004.
In reviewing the evidence, the amounts that he expended included $12,000 for an exit visa for his younger brother to help him with the return of his twin brother to Canada; airline tickets of approximately $4,531; $2,700 for hotel and meals for himself; funeral expenses of $4,000 for his twin brother; family expenses of $6,750; airport tax of $250.
The position of the appellant is that these expenses were incurred for and on behalf really of himself because he is his twin brother. That's basically the essence of his argument, even though they were expended for the purpose of his twin brother's health and to retrieve his twin brother to Canada.
Section 118 of the Income Tax Act is a section that deals with medical expense tax credits. In particular, section 118.2 is the most relevant provision.
The law is quite clear that the appellant must satisfy all of the requirements of section 118.2 in order to be eligible for a medical expense tax credit.
Included in the requirements of 118.2 is that the moneys be expended in relation to a dependent. A dependent is defined specifically in section 118(6). It includes a brother if resident in Canada at any time in the year. So there's no question that the appellant's brother was his brother who would appear to have been a dependent to some extent, but was he a resident of Canada at any time in the year?
He passed away in 2003, so he was not a resident in Canada in 2004 when the moneys were alleged to be expended and claimed. If we're concerned with 2003, he was not a resident in Canada in 2003. He was not a resident in Canada since 1998, even though he was a citizen of Canada, and, therefore, the claim for deductibility must fail.
As well, the claim for deductibility was for 2004 when in fact they must be claimed in the year they were incurred, which is 2003, and for that reason, the expenses claimed must also fail.
The Court has all kinds of sympathy with respect to the personal circumstances of the appellant, but, unfortunately, the Court cannot make decisions based upon sympathy.
The Income Tax Act does not allow deductibility on the facts presented. The Income Tax Act does not allow the Court to bring into play the concept of sympathy. It's as simple as that. The jurisdiction of the Court does not extend to makings decisions based upon sympathy.
The Federal Court of Appeal stated quite succinctly in Chaya v. R, a decision of the Federal Court of Appeal in 2004, 2004 DTC 6676, when Justice Rothstein, speaking on behalf of the Court, stated at paragraph 4 as follows:
"The applicant says the law is unfair, and he asked the Court to make an exception for him; however, the Court does not have that power. The Court must take the statute as it finds it. It is not open to the Court to make exceptions to the statutory provisions on grounds of fairness or equity. If the applicant considers the law unfair, his remedy is with parliament, not with this Court."
So I state that to the appellant also. The appellant says that the law is unfair and he asked the Tax Court to make an exception for him. This Court, the Tax Court of Canada, does not have that power. The Tax Court of Canada must take the statute as it finds it. It is not open to the Tax Court of Canada to make exceptions to the statutory provisions on the grounds of fairness or equity.
If the appellant considers the law unfair, and I'm not saying that the law is not unfair, all I'm saying is that if the appellant considers the law unfair, his remedy is with parliament, not with this Court.
No one is suggesting, Mr. Hagos, that the Income Tax Act is fair. No one is suggesting the Income Tax Act is reasonable. That is not for me to determine.
My responsibility is to apply the law as it is before me. The Income Tax Act speaks precisely and clearly, as does the Federal Court of Appeal.
For the grounds already spoken of, I dismiss the appeal. There will be no order with respect to costs.
Any questions, Mr. Hagos?
MR. HAGOS: I'm not sure how to say this.
THE CHAIR: I'm not asking you to say something. I'm asking: Do you have any questions?
MR. HAGOS: Yeah, my question is, maybe this could be my misunderstanding, I thought this court was independent and was able to make exceptions.
JUSTICE ROSSITER: This Court is independent. We can make exceptions where the law allows. The law does not allow us to make exceptions in this particular case because the facts do not fit within the confines of section 118.2 of the Income Tax Act. There is nothing I can do. Okay.
MR. HAGOS: Yeah, so --
JUSTICE ROSSITER: Pardon me.
MR. HAGOS: How do I appeal this?
JUSTICE ROSSITER: If you want to appeal it ‑‑
MR. HAGOS: Is this final or ‑‑
THE CHAIR: ‑‑ there is provisions for you to appeal it to the Federal Court of Appeal. I'm sure if you talk to Ms. Lee, she'll tell you how the process works. I'm not in that business, to be quite frank.
Ms. Lee, any questions?
MS. LEE: No, Your Honour.
JUSTICE ROSSITER: The appeal is dismissed. Thank you. Have a good day.
‑‑‑ Whereupon the proceedings adjourned
at 10:58 a.m.
I HEREBY CERTIFY THAT I have, to the best
of my skill and ability, accurately recorded
by Shorthand and transcribed therefrom,
the foregoing proceeding.
Linda O=Brien, Computer-Aided Transcription