Eligible Relocation | Canadian Tax Decisions & Tax Law

Severe Disability – Moving and Medical Expense Claimed

Olney v The Queen, 2014 TCC 262

The issue was whether the following expenses were proper medical expenses, deductible pursuant to section 118.2, and proper moving expenses, deductible pursuant to section 62, of the Income Tax Act:

Medical Expenses: Cell Phone, Lawn Care, Personal Grooming, CAA Auto Club Membership, Clothing Alterations, Personal Trainer, Housekeeping
Moving Expenses: Search for new home, packing assistance, moving-storage, transport of vehicle to new city, meals, accommodation, taxi to airport, and return airfare.

Justice Campbell J Miller of the TCC held that all the expenses, other than the scouting for a new home, cell phone, and CAA membership are properly deductible. This is yet another excellent decision by Justice Miller.

The taxpayer suffers from the effects of Thalidomide, and was classified by her doctor as suffering from a major disability (category 3). Despite this, she has strived to be independent and contributes fully to Canadian society. She moved from Ontario to Alberta for work purposes.

All the medical expenses has been previously claimed and accepted by the CRA, but it was the move resulting in her returns going to a different taxation office that resulted in the CRA questioning her claimed expenses.

ANALYSIS

The taxpayer relied on the attendant care provision in paragraph 118.2(2)(b.1) of the ITA. The Court noted that the medical expense provisions are intended to provide relief, and have to be liberally and humanely interpreted: Radage v Her Majesty the Queen, 1996 3 C.T.C. 2510., which were cited by Justice Bowie in Pina Garcea Zaffino v Her Majesty the Queen, 2007 TCC 388. See also Johnston v. The Queen, [1996] 3 C.T.C. 2510.

In Zaffino, the TCC held that “Attendant care” refers to:

[…] the totality of the services provided by an attendant, and that if a particular service falls within it when it is delivered along with other services, then it must necessarily fall within when delivered alone. The fact that a particular taxpayer requires to obtain only one of the services commercially surely does not change the nature of that service from being “attendant care” to something else.

[…]

[…] an “attendant” [is] “a person employed to wait on others or provide a service” and the meaning meanings of the word “care” include “process of looking after or providing for someone … the provision of what is needed for health or protection”.

Though the court agreed that the taxpayer needed the cell phone and CAA membership because of her disability, these did not fall into the definition of medical expense in subsection 118.2(2) and it was not open for the court to create new categories (para 17). The CAA membership could not fit the definition of “Attendant Care”.

The TCC stated that the cell phone may fall under paragraph 118.2(2)(m) being a prescribed device or equipment, but none of the prescribed items in Regulation 5700 include a cell phone. (paras 20-21).

The personal trainer, as recommended by her physician, was deductible under paragraph 118.2(2)(b.1) as “attendant care” and would have also qualified under paragraph 118.2(2)(l.9) as treatment of a physical disorder or therapy (rehabilitative therapy being theory to restore normal life by training) (para 25).

Payments to have someone alter her clothing, like lawn care and house cleaning, qualifies as “attendant care” – being the payment to someone else to do a thing a person cannot do for themselves (para 27).

Unfortunately, moving expenses do not include house hunting expenses, as moving expenses require actual moving: Robert T. Ball v Her Majesty the Queen, [1996] 3 C.T.C. 2178.

– Sas Ansari, JD LLM PhD (exp)

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Moving Expenses of Employees – What is Deductible for Income Tax Purposes?

Sirivar v The Queen, 2014 TCC 24

At issue was whether paragraph 62(3)(c) which limited deductions for costs of meals and lodging to 15 days worth works to limit the deduction of lodging expenses that are properly moving expenses.

The TCC held that the 15 day limit only applies to room and board and is intended to extend deduction to expenses not properly “moving expenses” and not to limit proper moving expense deductions.

FACTS

A CRA officer moved from Ottawa to Toronto to take up a new position with the CRA. He spent one week in a hotel, and then rented a room in a private home, postponing his purchase of a home in Toronto because for 20 weeks after the move he was required to work on large cases back in Ottawa (but was reimbursed only for 8 weeks). There was also uncertainty which CRA office he would report to in Toronto. He made claims for the room rental in Toronto, 9 trips to Ottawa, Ottawa home ownership expenses while that home was vacant, other travel expenses, and storage and moving expenses.

The CRA denied the all or part of the amounts claimed.

ANALYSIS

The Court began by reviewing Sections 62 of the Income Tax Act, and the definition of “eligible relocation” in subsection 248(1) of the ITA.

The court then referred to the decision in Storrow v. The Queen, [1979] 1 F.C. 595, dealing with the interpretation of 62(3), where it was said that moving expenses are “the ordinary out-of-pocket expenses incurred by a taxpayer in the course of physically changing his residence” and does NOT include (except as expressly included in subsection 62(3)) increased cost of a new residence over the old one, cost of installing household items from the old home in the new one, cost of refitting household items in the old residences, or outlays costs associated with the acquisition of the new residence. “Only outlays incurred to effect the physical transfer of the taxpayer, his household, and their belongings to the new residence are deductible”.

The court then referred to the FCA decision in A.G. of Canada v. Séguin, 97 DTC 5457, moving expenses don’t include “accessory damages that are unrelated to the actual move to and resettlement in the new residence”, such as interest expenses on loans not pertaining to the physical move of the taxpayer.

Lodging expense deduction are limited to a period of 15 days by paragraph 62(3)(c) – refers to cost of meals and lodging for temporary accommodations – and is meant to capture things not otherwise considered to be “moving expenses”. The TCC distinguished Christian v. The Queen, 2010 TCC 458, and said that there is no intention by parliament to restrict lodging expenses property part of moving expenses, but only to allow deduction of “room and board”. Where the conditions of employment prolong the completion of an eligible relocation – in this case, because a permanent home could not be found until the exact workplace was identified by the employer – the taxpayer is not to be penalized for accommodating the needs of his employer.

The TCC allowed the expenses for lodging for the hotel and the room in a private residence but did not allow the other deductions.

Sas Ansari, BSc BEd PC JD LLM PhD (exp) CPA In-Depth Tax 1, 2 &3

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Category Archives: Eligible Relocation

Severe Disability – Moving and Medical Expenses Claimed

Moving Expense of Employees – CRA Officer v CRA

Income Tax – HST/GST – International Tax