2001-4155(IT)I
BETWEEN:
LAWRENCE JOHNSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on September 30, 2002, at Prince George, British Columbia, by
the Honourable Judge L.M. Little
Appearances
Counsel for the Appellant: The Appellant himself
Counsel for the Respondent: Amy Francis
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 1999 taxation year is allowed, without costs, and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the Appellant be allowed to deduct the cost of the hot tub in the amount of $6,549.02 in accordance with the attached Reasons for Judgment.
Signed at Vanvouver, British Columbia, this 21st day of January 2003.
|
"L.M. Little" |
J.T.C.C.
Date: 20030121
Docket: 2001-4155(IT)I
BETWEEN:
LAWRENCE JOHNSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Little, J.
FACTS:
[1] The Appellant suffers from a chronic low back pain.
[2] The Appellant testified that in 1973 he injured his back while he was at work. The Appellant was employed by Canadian Forest Products Ltd. ("Canfor") and he worked at a sawmill owned by Canfor.
[3] The Appellant also testified that a further injury to his back occurred as a result of an automobile accident in 1983. The Appellant also stated that he had an automobile accident in the year 1999 which increased the discomfort suffered by him in his chronic back pain.
[4] The Appellant testified that in an attempt to relieve his back pain he purchased a hot tub on the recommendation of his doctor, Dr. Edgar Tussler. The cost of the hot tub was $5,927.97 plus additional equipment at a cost of $170.95 plus $450.10 for a total of $6,549.02.
[5] The Appellant testified that in an attempt to relieve the severe pain and to treat other medical problems he incurred the following expenses:
- massage therapy - November and December 1999 $463.00
- tanning fees - February, March and September 1999 320.86
- gym membership - 1999 year 384.60
- use of public swimming pool - 1999 204.65
- electrodes for a TENS unit 44.40
- vitamins and non prescription drugs 307.86
- herbs and other substances
[6] When the Appellant filed his income tax return for the 1999 taxation year, he claimed medical expenses in the amount of $13,210.00.
[7] By Notice of Reassessment dated the 4th day of January 2001 the Minister of National Revenue (the "Minister") reassessed the Appellant to disallow medical expenses of $10,302.00.
[8] By Notice of Reassessment dated the 16th day of February 2001 the Minister reassessed the Appellant to disallow a further $345.00 of the medical expenses that were claimed by the Appellant.
B. ISSUE:
[9] Is the Appellant entitled to deduct the medical expenses totalling $10,302.00 plus $345.00 in determining his income for the 1999 taxation year?
C. ANALYSIS:
[10] As noted above, one of the largest items making up the medical expenses that have been disallowed was the purchase of the hot tub plus the related equipment.
[11] The Appellant testified that he finds it virtually impossible to move in the morning without the use of the hot tub
[12] In Gibson v. R., [2001] 1 C.T.C. 2054, His Honour Judge Mogan of the Tax Court of Canada dealt with a taxpayer's attempt to deduct the cost of a whirlpool spa ($8,761.49) as a medical expense. At page 2057, paragraph 6, Mogan J. said:
... The Appellant was emphatic in stating that the tub was not a recreational device for her family and that it really did help loosen up the muscles in her neck and arms.
At page 2059, paragraphs 12 and 13, Mogan J. said:
I accept the Appellant's credible and uncontradicted evidence that she purchased the hot tub only for the purpose of hydrotherapy and relief of pain. In particular, I find that it was not intended to be and has not been a recreational device for her family. The Appellant uses the hot tub everyday for the relief of pain and, for all practical purposes, she uses it alone. The hot tub loosens up her muscles, reduces her pain, and on many days she could not work without it. With respect to domestic work in her home and performing her profession as a school teacher, her mobility is dependent upon her regular use of the hot tub.
... I find that the cost of installing the hot tub was a "reasonable expense" within the meaning of paragraph 118.2(2)(I.2).
[13] Judge Mogan's decision in Gibson was appealed to the Federal Court of Appeal and his decision was upheld. (See Gibson v. R., [2002] 1 C.T.C. 147).
[14] The Appellant testified that the daily use of the hot tub made it possible for him to be mobile or to function.
[15] I accept the Appellant's testimony in connection with the mobility that he obtains from the daily use of the hot tub and I find that the facts in this situation are very similar to the facts in the Gibson decision.
[16] The Appellant's appeal will be allowed to permit the deduction of the cost of a hot tub.
[17] Unfortunately, I am not persuaded that the other expenses as outlined above in paragraph 5 should be allowed as medical expenses. In reaching this conclusion I have reviewed and I agree with the comments of Judge MacArthur in Melnychuk v. R., [2002] 2 C.T.C. 2389 and Associate Chief Judge Bowman in Banman v. R., [2001] 2 C.T.C. 2111.
[18] The appeal is allowed, without costs, and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the Appellant is allowed to deduct the amount of $6,549.02.
Signed at Vancouver, British Columbia, this 21st day of January 2003.
|
"L.M. Little" |
J.T.C.C.
COURT FILE NO.: 2001-4155(IT)I
STYLE OF CAUSE: Lawrence Johnson and
Her Majesty the Queen
PLACE OF HEARING: Prince George, British Columbia
DATE OF HEARING: September 30, 2002
REASONS FOR JUDGMENT BY: The Honourable Judge L.M. Little
DATE OF JUDGMENT: January 21, 2003
APPEARANCES:
For the Appellant: The Appellant himself
Counsel for the Respondent: Amy Francis
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada