DETERMINATION OF RESIDENCY STATUS

In general, in determining whether or not a person is resident in Canada one must look to both factual tests relevant to common law rules (largely derived from UK tax cases) as well as statutory rules found in the Income Tax Act. In addition, in many cases "tie breaker" rules found in Canada's tax treaties may also come into play. These rules are all discussed in general terms below.

Individuals

An individual will be resident in Canada in a particular year if that individual is "ordinarily resident" in Canada in that year. Disputes with the Canada  Revenue Agency most often arise in this regard in connection with individuals who attempt to cease being in resident in Canada for tax purposes.

The Canada  Revenue Agency's views in respect of the main considerations that are relevant in determining whether an individual is resident in Canada are well outlined in Interpretation Bulletin IT-221R3, which should be consulted in planning for all potentially contentious situations.

In addition, under a number of statutory rules an individual may be deemed to be a Canadian resident for tax purposes even if that individual was not "ordinarily resident" in that year.

The most significant of these rules is one that states that where, in any particular year, an individual "sojourns" in Canada for 183 days or more, that individual will be deemed to be resident in Canada throughout that particular taxation year. To "sojourn" is usually interpreted as being the equivalent of "visit" or "stay temporarily".

Trusts

There is little Canadian case law dealing with the residency of trusts for tax purposes.

However, the general rule that most tax practitioners follow is that a trust will be considered to be resident where a majority of its trustees reside.

The Canada  Revenue Agency's views on the residency of trusts are summarized in Interpretation Bulletin IT-447.

Corporations

Any corporation incorporated in Canada after April 26, 1965 is deemed to be resident in Canada.

A corporation incorporated outside of Canada may still be considered to be resident in Canada if its "mind and management" or "central management and control" are situated in Canada. Normally, this is found in the place where the director's meetings are held.

APPLICATION OF TREATIES

Canada's tax treaties generally have rules that come into play where a person would otherwise be considered to be resident in both Canada and the other country that is party to that treaty ("tie breaker rules").

In the case of individuals (other than trusts) these rules normally provide as follows:

• (a) If the individual has a permanent home available to him in one (but not both) of those countries, he shall be deemed to be resident in that country;
• (b) If the individual has a permanent home available to him in both or none of those countries he will be deemed to be resident in the country with which his personal and economic relations are closer ("centre of vital interests");
• (c) If the country with which he has his centre of vital interests cannot be determined, he will be deemed to be resident in the country in which he has a habitual abode;
• (d) If he has an habitual abode in both or neither country, he will be deemed to be resident in the country of which he is a citizen; and
• (e) If he is a citizen of both or neither country, the "competent authorities" of both countries will settle the question by mutual agreement.