February 14, 2021
It took a chess match with my seven-year-old grandson to fully understand the surreptitious nature of the abuse of administrative discretion by the Canada Revenue Agency (CRA).
Thousands of Canadians with disabilities are unjustly denied the DTC because the Form T2201 Certificate for the Disability Tax Credit sets 90% as the legal requirement for a marked restriction in the determination of eligibility for the DTC.
Even more egregious is the fact the CRA intentionally misleads these individuals as well as their doctors, by stating, unequivocally, that its decision to deny the DTC is supported by the rule of law.
The deception is spelled out in the taxpayer’s Notice of Determination, in plain language, linking “the specific eligibility criteria in the Income Tax Act” with “90% of the time.”
“Although we do not question the seriousness of your medical condition, we must base the decision on the specific eligibility criteria in the ‘Income Tax Act.’… As a result, we cannot consider that the restriction is present all or substantially all of the time (at least 90% of the time).”
Nothing could be further from the truth.
Of course, taxpayers have every right to appeal an unjust decision all the way to the Tax Court of Canada. However, they are severely disadvantaged when the CRA is providing them with false information for disallowing the DTC.
How would they know that the 90% guideline is not carved in stone?
Here’s the excerpt from the Income Tax Act:
Section 118.4 (1)(b) (b) an individual’s ability to perform a basic activity of daily living is markedly restricted only where all or substantially all of the time, even with therapy and the use of appropriate devices and medication, the individual is blind or is unable (or requires an inordinate amount of time) to perform a basic activity of daily living.
Seems to me that there’s plenty of latitude for doctors completing Form T2201 for their patients.
And yet, the CRA continues to enforce the 90% rule as an absolute determination of eligibility for the DTC.
Why?
Ask Rory.
Rory had his own set of rules for chess that would clearly give him an advantage.
Although Rory’s rules were only a slight deviation from the standard moves, I opted for the official rules. Chess is a complicated game and I wasn’t about to let him win without a fair fight.
The CRA has also created its own playbook with rules stacked against Canadians with disabilities.
“Who decided on 90%?” asked by the Honourable Carolyn Bennett, a medical doctor and former chair of the Subcommittee on the Status of Persons with Disabilities at a parliamentary hearing with the Finance Committee on December 4, 2001. “We just want to know, what's the process for coming to 90%?”
No mystery there.
It’s “All ‘bout the money.”
“90% is a lot” agreed Mr. Serge Nadeau, the former Director, Personal Income Tax Division, Tax Policy Branch, Department of Finance, explaining that “there's a trade-off that must be made among the fiscal cost, the fairness, and also how easily it can be administered.”
Seems that the cost of fairness continues to be too great of a challenge for our elected representatives and policy makers.
But there is no excuse to misrepresent the rule of law.
Even Rory understands the difference between right and wrong, when it comes to the rules governing chess.
Rather reluctantly, Rory agreed to play fair.
And Rory won.
TAGS - DTC, CRA
