BETWEEN:
and
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Appeal heard on January 11, 2006, at Ottawa, Ontario.
Before: The Honourable Justice Lucie Lamarre
Appearances:
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JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 2003 taxation year is dismissed.
Signed at Ottawa, Canada, this 23th day of January 2006.
BETWEEN:
AL H. GILLICH,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
[1] The sole question at issue is whether the two-year program leading to the associate degree granted the appellant's daughter by Cottey College located in the state of Missouri, USA, qualifies for the tuition tax credit provided for in paragraph 118.5(1)(b) of the Income Tax Act ("Act").
[2] Paragraph 118.5(1)(b) of the Act specifies that, to qualify for that credit, the individual (here the appellant's daughter) must during the year have been a student in full-time attendance at a university outside Canadain a course leading to a degree.
[3] Here there has been an admission by the appellant that Cottey College is a junior college.
[4] The appellant referred to some dictionary definitions of the term "university". The Concise Oxford Dictionary, 7th edition, defines a university as an educational institution designed for instruction in the more important branches of advanced learning, conferring degrees in various faculties, and often embodying colleges.
[5] The Oxford English Dictionary Online defines "university" as follows:
university, n.
I. 1. a. The whole body of teachers and scholars engaged, at a particular place, in giving and receiving instruction in the higher branches of learning; such persons associated together as a society or corporate body, with definite organization and acknowledged powers and privileges (esp. that of conferring degrees), and forming an institution for the promotion of education in the higher or more important branches of learning; also, the colleges, buildings, etc., belonging to such a body.
[6] The case law distinguishes a university from other institutions. A university has the power and authority to grant titles or degrees, such as Bachelor degrees, Master degrees and Doctorates, by which it is certified that the holders have attained some definite proficiency (see Rogutski v. Canada, [1999] T.C.J. No. 371 (QL), [1999] 3 C.T.C. 2679, a decision referring in paragraph 4 to the cases of Li v. M.N.R., 78 DTC 1758 (TRB); Sweeney v. M.N.R., 78 DTC 1885 (TRB); and Re City of London and Ursuline Religious of the Diocese of London, [1964] 1 O.R. 587 (Ontario Court of Appeal)).
[7] Here, CotteyCollege is recognized as a two-year college accredited by an accrediting body in the United States. It offers courses leading to an associate degree and designed to prepare students for continued education in transfer institutions of their choice at which they can go on to complete their bachelor's degrees (see the Cottey College 2004-2006 Catalog, Exhibit A-2, at page 4). In more precise terms, the Catalog states at page 8 that, ultimately, CotteyCollege aims to facilitate each student's educational progress in a manner that enables the student to graduate from Cottey Collegeand transfer to a baccalaureate institution.
[8] Cottey College defines itself as being transfer oriented. At page 11, the Catalog states the following:
While Cottey students commence their undergraduate careers at Cottey, they and the entire Cottey community proceed with the expectation that Cottey students will accomplish their ultimate undergraduate goals at baccalaureate institutions. Programs at Cottey College, therefore, focus not only on the development of student abilities, but also on assisting students in the selection of transfer institutions.
[9] Furthermore, counsel for the respondent referred to a definition of "associate degree" found in TERMIUM Plus (Government of Canada's terminology and linguistic database, Translation Bureau, Public Works and Government Services Canada), which reads as follows:
A credential or qualification generally awarded after a two-year program in a junior college or technical institute but also awarded by some four-year institutions; thus, it may be a terminal degree as well as an intermediate qualification. Refers to Associate in Arts (A.A.), Associate in Science (A.S.), and others (United States and United States-derived systems).
[10] According to some web definitions, a junior college is a two-year institution of higher education giving credits toward a bachelor's degree.
[11] Finally, Interpretation Bulletin IT-516R2 states at paragraph 5 that an educational institution located in a country outside Canada is presumed to qualify for the purposes of paragraph 118.5(1)(b) of the Act if it is recognized by an accrediting body as being an educational institution which confers degrees at least at the bachelor or equivalent level.
[12] Here, the associate degree granted to the appellant's daughter is not a bachelor's degree. On the strength thereof she was given credits equivalent to one year in her bachelor's program at CarletonUniversity. Her associate degree from Cottey Collegeis a step toward obtaining a bachelor's degree from another educational institution. Cottey College does not belong to any such educational institution.
[13] I therefore conclude that CotteyCollege does not qualify as an institution having the power and authority to grant a degree within the meaning given that word in the case law. Nor does CotteyCollege qualify as a university within the literal meaning given to that word in the dictionaries. It therefore does not qualify as a university within the meaning of paragraph 118.5(1)(b) of the Act.
[14] For these reasons the appeal is dismissed.
Signed at Ottawa, Canada, this 23th day of January 2006.
"Lucie Lamarre"
Lamarre, J.
COURT FILE NO.: 2005-1727(IT)I
STYLE OF CAUSE: AL H. GILLICH v. HER MAJESTY THE QUEEN
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 11, 2006
REASONS FOR JUDGMENT BY: The Honourable Justice Lucie Lamarre
DATE OF JUDGMENT: January 23, 2006
APPEARANCES:
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For the Appellant: |
The Appellant himself
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Counsel for the Respondent: |
Geneviève Léveillé |
COUNSEL OF RECORD:
Firm:
For the Respondent: John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario