BETWEEN:
and
____________________________________________________________________
Appeal heard on November 24, 2006, at Saskatoon, Saskatchewan
Before: The Honourable Justice D.W. Beaubier
Appearances:
____________________________________________________________________
JUDGMENT
The appeal from the reassessment made under the Income Tax Act for the 2004 taxation year is allowed with regard to the issue of tuition credits, and the reassessment is referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.
The Appellant is awarded the sum of $200 for her out of pocket disbursements for conducting this appeal.
Signed at Vancouver, British Columbia, this 8th day of December, 2006.
BETWEEN:
AMIE E. ROBINSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
[1] This appeal pursuant to the Informal Procedure was heard at Saskatoon, Saskatchewan, on November 24, 2006. The Appellant was the only witness.
[2] Paragraphs 3 to 12 of the Reply to the Notice of Appeal set out the matters in dispute. They read:
3. The 2004 Taxation Year income tax return was initially assessed on May 9, 2005.
4. In computing income for the 2004 Taxation Year, the Appellant claimed, in the computation of non-refundable tax credits and tax payable, $12,484 as a tuition credit (the "Tuition Credit") and $3,600 as an education credit (the "Education Credit").
5. By means of a Notice of Reassessment dated October 11, 2005, the Minister of National Revenue (the "Minister") disallowed the Appellant's claim for the Tuition Credit and the Education Credit in the 2004 Taxation Year. The Minister considered:
(a) that the courses taken by the Appellant through the University of Phoenix did not qualify for the tuition credit as the Appellant was not in full-time attendance in courses lasting at least 13 consecutive weeks; and
(b) that the Appellant was not entitled to the education credit as the courses taken by the Appellant were not at least 13 consecutive weeks in duration.
6. The Appellant filed a Notice of Objection to the reassessment, postmarked January 5, 2006.
7. The Minister confirmed the reassessment by means of a Notification of Confirmation dated March 17, 2006.
8. In so reassessing the Appellant's 2004 Taxation Year and in confirming that assessment, the Minister assumed the same facts as follows:
(a) the Appellant resided in Canada during the 2004 Taxation Year;
(b) during the 2004 Taxation Year, the Appellant maintained full-time employment in Canada;
(c) while working and living in Canada, the Appellant took on-line courses in the MBA program through the University of Phoenix;
(d) the Appellant was not in full-time attendance and (sic) University of Phoenix;
(e) the Appellant was not a full-time student at the University of Phoenixfor a period of at least 13 consecutive weeks; and
(f) each course taken by the Appellant in the MBA program with the University of Phoenix was 12 weeks in duration.
B. ISSUES TO BE DECIDED
9. The issue is whether the Appellant is entitled to claim the Tuition Credit and the Education Credit in the 2004 Taxation Year.
C. STATUTORY PROVISIONS, GROUNDS RELIED ON AND RELIEF SOUGHT
10. He relies on section 118.5 and 118.6 and subsection 248(1) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp) (the "Act") as amended for the 2004 Taxation Year.
11. He submits that as the Appellant was not in full-time attendance at a university outside Canada, she is not entitled to claim the Tuition Credit pursuant to section 118.5 of the Act.
12. He further submits that as the Appellant was not enrolled as a full-time student at a designated educational institution, she is not entitled to claim the Education Credit pursuant to section 118.6 of the Act.
[3] Assumptions 8(a), (b) and (c) are correct. The remaining assumptions are in dispute.
[4] With respect to the remaining assumptions, the Court finds that the Appellant was always a resident of the area of Landis, Saskatchewan, a farm village about 130 kilometres west of Saskatoon. At the time of beginning her course at the University of Phoenix, which led to her obtaining her MBA degree there, she had obtained a B. Comm. from the Universityof Saskatchewan in 2000. But to keep her job, she had to get a post-graduate degree. She searched among the universities and the University of Phoenixoffered the best course for her purposes. The University of Phoenixhad two campuses at that time: one in Phoenix, Arizona, USA, and the second in Burnaby, British Columbia, Canada. Financially, the Appellant had to keep her job and this meant that she had to take her MBA degree on-line. From February 19, 2004 until December 19, 2005 she was continuously taking on-line classes at the University of Phoenix. She never attended or visited either of its two campuses in that time. Classes lasted for either three or six weeks each. During each summer she took two classes at the same time and worked on them for between 60 and 45 hours per week. In other months she took one class at a time and worked on them for over 20 hours each week and sometimes for 45 hours in a week. All of these classes were successive. She obtained her MBA in the shortest time possible. She was enrolled full-time for 95 successive weeks to do so. Thus, she testified, she was attending for in excess of 30 weeks each year and obtained 24 or more credits each year. She was enrolled as a full-time student and continued to work at her job for 40 hours per week, but had six weeks off each summer. She paid for her courses and degree with a student loan.
[5] There are two questions to be answered respecting this appeal and the application of Section 118.5 of the Income Tax Act to the Appellant's appeal. They include:
1. Was the University of Phoenixan educational institution in Canada? (Para. 118.5(1)(a)).
2. If not, was the Appellant in full-time attendance at a university outside Canadain a course leading to a degree? (Para. 118.5(1)(b)).
[6] The University of Phoenixhad a campus in Canadain 2004. It conforms with subparagraph 118.5(1)(a)(i) of the Income Tax Act since it is an "other educational institution providing courses at a post-secondary school level". For this reason, it is not necessary to deal with question [5]2.
[7] As a result, the jurisprudence cited by the parties dealing with the applicability of paragraph 118.5(1)(b) is not necessary for this discussion. Furthermore, all of the cases cited were Informal and not binding on this Court.
[8] On this basis, the Court finds that the Appellant was enrolled as a full-time student at an educational institution in Canada and she is entitled to claim the tuition credit pursuant to paragraph 118.5(1)(a) of the Income Tax Act.
[9] With respect to the educational credit, the University of Phoenixdoes not comply with the definition of "designated education institution" pursuant to Section 118.6 of the Income Tax Act. Accordingly, the Appellant is not entitled to the educational credit.
[10] The appeal is allowed with regard to the issue of tuition credits and this matter is referred to the Minister of National Revenue for reconsideration and reassessment pursuant to these reasons. The Appellant is awarded her out of pocket disbursements for conducting this appeal. Because she had to travel from Landis to Saskatoonand back for the hearing, they are fixed at $200.
Signed at Vancouver, British Columbia, this 8th day of December, 2006.
"D.W. Beaubier"
Beaubier J.
COURT FILE NO.: 2006-1800(IT)I
STYLE OF CAUSE: Amie E. Robinson v. The Queen
PLACE OF HEARING: Saskatoon, Saskatchewan
DATE OF HEARING: November 24, 2006
REASONS FOR JUDGMENT BY: The Honourable Justice D.W. Beaubier
DATE OF JUDGMENT: December 8, 2006
APPEARANCES:
|
For the Appellant: |
The Appellant herself |
|
Counsel for the Respondent: |
Charlene Telles-Langdon |
COUNSEL OF RECORD:
Firm:
For the Respondent: John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Canada