By Deron Hamel
People living with severe epilepsy not controlled by medications often find it challenging to obtain the disability tax credit (DTC) because the condition falls into a grey area. However, people with epilepsy and family members supporting people with the condition have avenues to take in order to receive the DTC.
The DTC is used to reduce the income tax people with disabilities or certain conditions pay. The tax credit is available for people with a taxable income who have severe and prolonged physical or psychological impairment. Family members supporting a person with a disability are also eligible. People must be approved by the Canada Revenue Agency (CRA) in order to receive the tax credit.
The purpose of the tax credit is to help people financially with the extra expenses they have as a result of their condition that are not covered by the medical expense tax credit.
Conditions like epilepsy, Alzheimer’s disease and multiple sclerosis do not always present noticeable symptoms, so they are often “hidden disabilities,” says Lembi Buchanan, a Victoria, B.C.-based advocate.
Because of this, it can be difficult to determine how much a disability is impairing a person’s life and at what point they should be able to benefit from the DTC.
Essentially, people with epilepsy must have severe and prolonged epilepsy, and people must have epilepsy that is not fully controlled with medications in order to apply for the DTC, Buchanan says.
“The problem with epilepsy is that there is not a mathematical model to measure how severely impaired someone is, but their physician (can help) make that determination by looking at the spectrum of their patients, and obviously, some people with epilepsy will have more severe (cases) than others,” Buchanan says.
“The Canada Revenue Agency has a tendency to interpret the Income Tax Act very narrowly and technically, so a lot of people have ended up going to tax court. But the judges generally interpret the tax act more broadly and show more compassion.”
Often, people with epilepsy and other episodic conditions do not get the tax credit unless they appeal a CRA decision to the Tax Court of Canada. If people believe they should be eligible for the DTC but are denied, there is an appeal process.
The person needs to first file a notice of objection. This can be a simple letter to the CRA stating the person objects to the decision made. If the CRA responds with a letter of determination that backs its decision, the person has 90 days to appeal to the Tax Court of Canada.
In one case where a person with epilepsy was denied the tax credit by the CRA but challenged the decision in court, the judge ruled that if someone is always vulnerable, due to the unpredictability of seizures, they should be able to access the tax credit, Buchanan notes.
“The chances of winning in the Tax Court of Canada are pretty good; the odds are better than when you’re appealing a decision with CRA,” she says.
Information on how to appeal a decision made by the Tax Court of Canada can be found on Buchanan’s website, fightingforfairness.ca.
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