AROUND THE COURTS
ADHD qualified for disability tax credit
The disability tax credit, as the name implies, is available to individuals who are physically or mentally disabled. However, the legal requirements to claim the credit are quite detailed and complex.
Among other requirements, the individual must have one or “more severe and prolonged impairments in physical or mental functions”. These impairments must result in the individual’s ability to perform a basic activity of daily living being “markedly restricted”. The individual must also receive a prescribed form from a medical practitioner certifying that the disability requirements have been met.
If the disabled individual has little or no income and therefore cannot use the credit, they can transfer the credit to a supporting individual, like a parent or spouse.
In the recent Jungen case, the taxpayer’s son was diagnosed with attention deficit hyperactivity disorder (ADHD) in the taxation years in question, when the son was between nine and fifteen years old. Apparently, the ADHD resulted in extremely anti-social and disruptive behaviour to others, including friends, teachers, and his sister. The taxpayer testified that even with her son’s medication for the disorder, she needed to tend to him at least 90% of the time (when he was not in school or otherwise occupied with structured activities).
The son did not have enough tax payable to use the disability tax credit, so he transferred the credit to his mother, the taxpayer, who attempted to claim it. The taxpayer filed the prescribed form from her son’s pediatric physician, who certified that he met the conditions required for the disability credit.
The CRA denied the taxpayer’s claim. Although the CRA agreed that her son had significant and challenging issues, it held that they did not “markedly restrict” his basic activities of living. This was the sole issue before the Tax Court of Canada, which heard the taxpayer’s appeal of the CRA assessment.
The Tax Court held in favour of the taxpayer by accepting the “markedly restricted” requirement. Based on the evidence, the Tax Court held that during the relevant period the son “had substantial impairment of ability to engage in appropriate social interactions with other persons with whom he comes into contact.”