Door open to alternative medicine claims

National Post

2007-05-26


Quebec residents may now be able to get a credit for the costs of vitamins,
minerals and health supplements as a result of the latest Tax Court of Canada
decision, which may leave the door open for residents of other provinces too.

There have been numerous cases in which taxpayers have attempted to claim the
cost of alternative medical treatments as medical expenses.

No one has been successful -- until Montreal doctor Barry Breger took his own
case to court.

Dr. Breger practices orthomolecular medicine, described as "the practice of
the using of molecules 'known to the body' in the treatment and/or prevention of
disease and certain chronic conditions." Using orthomolecular medicine, Dr.
Breger treated his wife's various medical ailments by prescribing more than
$6,500 of medicinal, nutritional and herbal supplements, the cost of which was
claimed on his 2004 tax return.

For the purpose of the medical tax credit, the Income Tax Act defines a
medical expense as "an amount paid ... for drugs, medicaments or other
preparations or substances ... for use by the patient as prescribed by a medical
practitioner or dentist and as recorded by a pharmacist."

The issue in many of these cases is whether or not the medicine prescribed
meets the Tax Act's requirements that they be "recorded by a pharmacist."

When supplements can be purchased over the counter, they are not technically
required to be "recorded" by the pharmacist, hence, they don't meet the
requirements.

Dr. Breger argued that the rules are different in Quebec. He pointed to
provisions and regulations of the Quebec Pharmacy Act, in which a pharmacist in
Quebec is required to "keep at the place where he practices his profession a
record for each patient in respect of whom a prescription is filled."

The judge concluded that since the prescriptions for the supplements were
written by a qualified medical doctor (Dr. Breger) and were recorded by an
authorized pharmacist, they qualified for the credit.

He distinguished Dr. Breger's case from prior decisions by finding that under
Quebec law governing record keeping by Quebec pharmacists, these prescriptions
were indeed "filled and recorded by the pharmacist in his professional capacity
as a pharmacist."

Before celebrating Dr. Breger's victory, however, keep two things in mind:
First, the case specifically looked at Quebec's rules -- the rules may differ in
other provinces.

Second, the case was heard under the "informal procedure" process and is
therefore not legally binding on other judges (although the decision would be
persuasive). The Canada Revenue Agency may decide to appeal the decision.

It has until the end of the month to file such an appeal. We'll keep you
posted.

Jamie Golombek, CA, CPA, CFP, CLU, TEP, is vice-president, taxation
and estate planning, at AIM Trimark Investments in Toronto.

Jamie.Golombek@aimtrimark.com