xxxx xxxxxxx wrote:
Below is the result of your feedback form. It was submitted by xxxx xxxxxxx on Sunday, February 21, 2010 at 14:32:30 --------------------------------------------------------------------------- My_question_is: Applicable-to-other-jurisdiction question: Last year I opened a CAD and US savings account at TD in Vancouver. As a non resident, do I have to pay tax on the meager interest earned? also, I would like to invest about 15,000 that I have literally sitting under my mattress (don't want to risk opening an account in Havana)- what are my options and tax implications as a Canadian living in Cuba? I travel to Vancouver every summer to visit my parents. I have a teenage son (Canadian as well) who is contemplating studying at UBC when he finishes high school, and I want to set aside funds for him. What to do other than keeping the money under the mattress?? I have an excellent job in Cuba with a foreign company that pays in hard currency, which is the source of my earnings. Help! -----------------------------------------------
david ingram replies:
Assuming that last year was 2009, there is no tax to pay by a non-resident on income earned in Canada provided the interest was earned at arm's length. What that means is that if your brother pays you interest, the interest can be taxed but if the bank pays it, there is no tax.
Be careful however. I do not know Cuban law well enough. But if you were in most other countries as a resident or as a full time worker, the Canadian interest would be taxable in that country. I know that is true in Mexico (few abide by it), Spain, the US, the UK, Indonesia, etc. I have no idea about Cuba. However, it is the kind of thing that Governments sometimes use to punish foreign workers. I could not find any reference to foreign nationals having problems with tax on interest in Cuba.
However, as a Canadian Citizen, Canada has the right to tax its citizens if they remain factual residents.
Factual residents are those who retain close ties to Canada because of family, job, financial accounts, intention, furniture stored in Canada, cars stored in Canada, driver's licences in Canada, Health or other insurance in Canada memberships, etc. They are best summarized by Judge Teskey in the Dennis Lee Case which I will reproduce later.
One of the things that Judge Teskey says is that a non-resident account in Canada is okay but i am almost willing to bet that you used your parent's address for your TD account and that the bank does not have you identified as a non-resident. If I am incorrect, I apologize now.
At any rate, If you are a genuine resident of Cuba and limit your visits to a couple of months a year you are okay and not taxable on your world income.
However, again, I would be happier if you had opened your account in Blaine or Bellingham. Why taunt the bull when you do not have to?
If your son returns to Canada to go to University as an adult, there are no problems either. It would just be nicer if any money was not on deposit in Canada.
Now that I have painted the spectre of Canada's CRA going after you, there is not much reason to worry.
Cuba is not the usual place for Canadians or Americans or any other person from a country with income taxes, to go to obtain or live in an 'income tax free' zone. Non-Cubans or Cubans employed in high paid positions by multi-nationals typically pay a local income tax rate of up to 50% meaning that whatever you receive is tax paid at a higher tax rate than that of Canada or the US or the UK, or France, etc.
Therefore, if the CRA (Canada Revenue Agency) did go after you, there would be enough tax already paid to Cuba to look after your tax obligations to Canada (or the US or France, etc.). the same situation applies in Indonesia, China and Libya among others.
Make sure that you keep all of your tax and payroll documents so that if and when 'you' decide to return to Canada, you can prove to the CRA that you paid tax to Cuba.
These older questions and the Teskey Case will give you some more guidance. Remember that KUWAIT, Saudi Arabia, the Bahamas and others are tax free countries. It is very important to sever ties with Canada in those situations. It is not so important with Cuba.
XXXXX XXXXXXXXX wrote:
Below is the result of your feedback form. It was submitted by XXXX XXXXXXXX on Sunday, January 10, 2010 at 16:39:50 --------------------------------------------------------------------------- My_question_is: Canadian-specific question: I work full time in the UAE for a oil rig company, building offshore oil rigs. I,am on a 28day in and a 28 day out rotation. I was wondering if there are any tax breaks I can take advantage off or if you could recommend a good tax account to do my taxes and help save me some money. Thank You ---------------------------------------------------------------------------
david ingram repliesAs described, you are taxable in Canada on your earnings in the UAE.
My Question - I am taking a job in Afghanistan for 1 year for an American corporation. My wife and kids will be staying in Canada. I will receive a base salary, danger pay, out of country pay, away from family pay, all in US funds. I am required to handle all taxes (as required) I can have my pay deposited anywhere in the world. Is all of the pay I receive subject to tax? If so is there anyway to avoid taxes? Do you have to report all income or are some of the benefits tax free? Is there any way to handle the funds legally speaking of course... Thanks in advance. xxxxx xxxxxxxxx Ontario, Canada-------------------------------------------------------
QUESTION: I am a Canadian Citizen and living in Canada for the past 10 years. Currently, I am exploring opportunities in UAE. Once we leave we do not intended to visit Canada for the next two years. We have properties in Canada which are rented out to individuals at arms length with proper paperwork for duration of one year or more. In addition to this we have registered and non-registered investments in Canada. We would prefer to keep our properties and investments in Canada. For mortgage and other property maintenance payments we plan on keeping our single bank account and a credit card. Also, we plan on keeping the driver’s license for some period of time until we can get a UAE drivers license. Health cards can be canceled since we would not be using it. In your opinion what would be the best course of action that we should take. If we need to chat let me know. ----------------------------------------------david ingram replies:
Hi there, I am currently a Canadian Citizen and working in B.C. I have been working in B.C for the month of January and first week of February and then left my job to pursue a job in the UAE. I will be moving there in Mid March or Early April. My wife will be working in Canada until beginning of May and moving down permanently in mid may. Will be getting our residency visas. We have decided to sell our rental, give our warm clothes to salvation army, take our cars off insurance/give back the plates (if our family needs a car they can then buy it when theirs breaks down), stopping my membership to sports teams etc, joining a hockey team in the UAE, getting new credit cards, drivers license from Dubai, and changing my accounts in Canada to non-residency. My question is since we have worked in Canada in 2008 (me as IC and no tax was taken and wife was taxed in hospital), sold our rental, do we declare income as a Canadian Resident or non-resident for 2008? -----------------------------------------david ingram replies:
Hi I am a registered nurse here in Ontario Canada and I am interested in going
to Saudi Arabia for a year or two to work. I will have to sever my ties with
Canada. I have loans I am paying so I will still have a bank account.
Other nurses I have known as kept there drivers license. Will I still be
taxed if I keep my drivers license? I don't own a home or a car so that
won't be a problem. What would you do in my situation? I was also told
I can keep my Visa but will cancel everything else. Thank you -------------------------------------------------------------------- david ingram replies:
Keeping a driver's licence AND a visa card is asking to be taxed if you are
only gone for a year or two.
Keeping the bank account as a non-resident account is fine. Read Judge Teskey's decision in the Dennis Lee case.
what are the rules?
Well, to leave Canada for tax purposes, you must give up clubs, bank accounts, memberships, driving licences, provincial health care plans, family allowance payments (if you are a returning resident, you can continue to get Family Allowance out of the country), your car, and furniture. You can keep a house here as an investment and rent it out, but it must be rented on lease terms of a year or more. And you MUST have an agent sign an NR6 for you (see example). This NR6 has the Canadian Resident AGENT ** guarantee the Canadian Government that if YOU do not pay your tax to Canada, the AGENT WILL. Even after fulfilling the foregoing, the Canadian government can still tax you or "try" to tax you on your income out of the country. If you are being paid by a Canadian Company, they can quite often succeed.
Even though you can collect family allowance out of the country, don't! One client's wife found out that she could get family allowance out of the country if she said they were coming back to Canada. She got some $3,000 of family allowance and cost the family some $80,000 in income tax when they came back to Canada from Brazil. I will never forget the husband's expression when he found out why he had been reassessed and I will never forget his wife's explanation. She said he was a skinflint and never gave her any money. The total episode cost them their house.
** The "agent" referred to above can be a friend, relative, or a business such as ours. We charge a minimum of $40.00 per month to be an "AGENT" for an NR-6 filing. This $480 per year is "in addition" to any other fees but "well worth it" of course. It stops your mother, father, brother, next door neighbour or ex-best-friend from being plagued by paperwork they do not understand.
OUT OF CANADA AND RESIDENT - IN CANADA AND NON-RESIDENT
It is possible to be physically "in Canada" and be treated as a Non-Resident and it is possible to be out of the country for seven years, or never have even lived in Canada, but wanted to, and be taxed as a Canadian resident as the following three cases show. In case you missed it, the reason for the different rulings is the "INTENT" of the parties involved. Wolf Bergelt intended to leave Canada. David MacLean was only working out of the country. He still maintained a residence and could not ever become a resident of Saudi Arabia anyway. Dennis Lee "wanted" to live in Canada.
In 1986, Wolf Bergelt won non-resident status before Judge Collier of the Federal Court, even though he was only out of the country for four months and his family stayed behind to sell his house. He had given up his memberships, kept only one bank account and rented an apartment in California until his house in Canada was sold. Four months after his move, his company advised him that he was being transferred back to Canada. Judge Collier said his move was a permanent (although short) move and he was a non-resident for tax purposes for those four months.
In 1985, David MacLean lost his claim for non-residence status even though he was gone for seven years. He kept a house and investments in Canada and returned a couple of times a year to visit parents. He had even been to the Tax Office and received a letter on January 29, 1980 stating that his Canadian Employer could waive tax deductions because he was a non-resident. However, he did not advise his banks, etc. that he was a non-resident so that they would withhold tax, he did not rent his house out on a long term lease and he did not do any of the things that makes a person a "NON-RESIDENT". Judge Brule of the Tax court of Canada said that he thought Mr. MacLean had stumbled on the non-resident status by chance rather than by design. In other words, to become a non-resident of Canada, you must become a bone fide resident of another country. As a rule, only a Muslim born in Saudi Arabia to Saudi Arabian parents can become a Saudi Arabian citizen. The best that David MacLean can hope for is that he has a Saudi Arabian temporary work permit.
In other words, when a person leaves a place, they usually leave and establish a new identity where they are because the "new place" is where they live now. Trying to "look" like a non-resident is not the same as "BEING" a non-resident - think about it.
In 1989, Denis Lee won part but lost most of his claim for non-resident status. He was a British Subject who worked on offshore oil rigs. He maintained a room at his parents house in England and held a mortgage on his ex-wife's house in England. For the years 1981, 82 and 83 he did not pay income tax anywhere. in 1981 he married a Canadian and she bought a house in Canada in June of 1981. On September 13, 1981, he guaranteed her mortgage at the bank and swore an affidavit that he was "not" a non-resident of Canada. [As I have said in the capital gains section of this book, bank documents will get you every time.] During this time he had a Royal Bank account in Canada and the Caribbean but no Canadian driver's licences or club memberships, etc.
Judge Teskey said:
"The question of residency is one of fact and depends on the specific facts of each case. The following is a list of some of the indicia relevant in determining whether an individual is resident in Canada for Canadian income tax purposes. It should be noted that no one of any group of two or three items will in themselves establish that the individual is resident in Canada. However, a number of the following factors considered together could establish that the individual is a resident of Canada for Canadian income tax purposes":
- past and present habits of life;
- regularity and length of visits in the jurisdiction asserting residence;
- ties within the jurisdiction;
- ties elsewhere;
- permanence or otherwise of purposes of stay;
- ownership of a dwelling in Canada or rental of a dwelling on a long-term basis (for example, a lease of one or more years);
example, a lease of one or more years);
- residence of spouse, children and other dependent family members in a dwelling maintained by the individual in Canada;
maintained by the individual in Canada;
- memberships with Canadian churches, or synagogues, recreational and social clubs, unions and professional organizations (left out mosques);
unions and professional organizations (left out mosques);
- registration and maintenance of automobiles, boats and airplanes in Canada;
- holding credit cards issued by Canadian financial institutions and other commercial entities including stores, car rental agencies, etc.;
entities including stores, car rental agencies, etc.;
- local newspaper subscriptions sent to a Canadian address;
- rental of Canadian safety deposit box or post office box;
- subscriptions for life or general insurance including health insurance through a Canadian insurance company;
Canadian insurance company;
- mailing address in Canada;
- telephone listing in Canada;
- stationery including business cards showing a Canadian address;
- magazine and other periodical subscriptions sent to a Canadian address;
- Canadian bank accounts other than a non-resident account;
- active securities accounts with Canadian brokers;
- Canadian drivers licence;
- membership in a Canadian pension plan;
- holding directorships of Canadian corporations;
- membership in Canadian partnerships;
- frequent visits to Canada for social or business purposes;
- burial plot in Canada;
- legal documentation indicating Canadian residence;
- filing a Canadian income tax return as a Canadian resident;
- ownership of a Canadian vacation property;
- active involvement with business activities in Canada;
- employment in Canada;
- maintenance or storage in Canada of personal belongings including clothing, furniture, family pets, etc.;
clothing, furniture, family pets, etc.;
- obtaining landed immigrant status or appropriate work permits in Canada;
- severing substantially all ties with former country of residence.
"The Appellant claims that he did not want to be a resident of Canada during the years in question. Intention or free choice is an essential element in domicile, but is entirely absent in residence."
Even though Dennis Lee was denied residency by immigration until 1985 (his passport was stamped and limited the number of days he could stay in the country) and he did not purchase a car until 1984, or get a drivers licence until 1985, Judge Teskey ruled that he was a non-resident until September 13, 1981 (the day he guaranteed the mortgage and signed the bank guarantee) and a resident thereafter.
My point is made. Residency for "TAX PURPOSES" has nothing to do with legal presence in the country claiming the tax. It is a question of fact. My thanks to Judge Teskey for an excellent list. The italics are mine and refer to the items which I usually see people trying to "hold on to" after they leave and are trying to become non-residents. No single item will make you a resident, but there is a point where the preponderance of "numbers" leap out and say, "He / She is a resident of Canada, no matter what he / she says."
The case above is not unusual in any way. It is a fairly typical situation in my office.
In 1990, John Hale was taxed as a resident on $25,000 of directors fees he had received from his Canadian Employer and on $125,000 he received for exercising a share stock option given to him when he had been a resident of Canada (the option, not the stock). Judge Rouleau of the Federal Court ruled that section 15(1) of the Great Britain / Canada Tax Convention did not protect the $125,000 as it was not "salaries, wages, and other remuneration". It was, however a benefit received by virtue of employment within the meaning of section 7(1)(b) of the act.
Even a car you do not own can make you a resident as the next sailor found out.
In 1988, Frederick Reed was claimed by the Canadian Government as one of their own. He lived on board ship and shared an apartment with a friend in Bermuda but only occasionally. He also stayed with his parents in Canada when visiting his employer in Halifax. Judge Bonner of the Tax court ruled that he could not claim his place of employ or the ship as his residence and just because he did not have a fixed abode, did not make him a non-resident. He was also the beneficial owner of a car in Canada which even though of minor consequence, served to add to his Canadian Residency. He had in fact borrowed money from a credit union to buy the car, even though it was registered in his father's name. He had maintained his Canadian Driver's licence as well.
An interesting case in June, 1989 involved Deborah and James Provias who left Canada in October of 1984. They had sold a multiple unit building to James' father on September 21, 1984 but the statement of adjustments did not take place until December 1, 1984. They tried to write off rental losses and a terminal loss against other income as `departing Canadians'. Judge Christie of the Tax Court ruled that they had left before the sale and were not entitled to the terminal loss or another capital loss as these could only be applied against income earned in Canada from October 13, 1984 (the day they left) to November 30, 1984 (the day before the sale) and there was no income, only a rental loss.
But June, 1989 was a good month for Henry Hewitt. He had been a non-resident living in Libya for four years and received some back pay after returning to Canada. DNR tried to tax him on the money but Judge Mogan of the Tax Court came to the rescue. He ruled that although Canadians were usually taxable on money when received, that assumed that the money itself was taxable in Canada, which was not true in this case.
In 1989, James Ferguson lost his claim for non-residency status but from the information, it didn't stand a chance anyway. He had been in Saudi Arabia on a series of one year contracts for four years. His wife remained employed in Canada, and he kept his house, car, driver's licence, union membership, and master plumber's licence. Judge Sarchuk ruled that he had always intended to return to Canada and was a resident.
A similar situation involved John and Johnnie M. Eubanks in the United States. He was working on an offshore oil rig in Nigeria with a Nigerian work permit and attempted to claim non-resident status for the purposes of exempting the foreign earned income exclusion. His wife was in the United States at all times and because he worked 28 days on and 28 days off, he returned to the U.S. for his rest periods using 4 days for travel and 24 days for rest with his family. He did not spend any 330 day period (out of a year) in Nigeria and only had a residency permit for the purposes of working in Nigeria. Judge Scott ruled he was a resident of the U.S. and taxed him some $20,000 with another $6,000 penalties and interest.
The Tax departments in Canada and the U.S. issue Interpretation Bulletins and Information Circulars and Guidance Pamphlets. These documents sometimes get people in trouble because the individual reads the good part and doesn't pay any attention to the exceptions. The following case ran contrary to a Guidance Pamphlet issued by the IRS.
On and Off-shore Oil rigs were involved with William and Margaret Mount and Jesse and Mary Wells. William and Jesse worked in the United Arab Emirates. However, they kept their homes and families in Louisiana and kept their driver's licences in Louisiana and voted in Louisiana. No evidence was shown that they had tried to settle in The United Arab Emirates. Judge Jacobs turned down claimed exclusions of approximately $75,000 each.
There isn't any question about what oil rig people talk about on oil rigs. It has to be "how to beat the tax man". Unfortunately, they all seem to think it is easy. Another such story follows.
In 1989, Clarence Ritchie found out that bona fide residence means just what it says. You cannot be a non-resident of the U.S. for tax purposes if you are not a bona fide resident of another country. He was working on the Mobil Oil Pipeline in Saudi Arabia and although when he left he was married with a couple of kids, by the time he returned permanently, he was a happily divorced man. Judge Scott ruled that though he did not have an abode in the United States, he had not established one in Saudi Arabia and therefore was not entitled to the foreign earned income exclusion which requires you to be away for 330 days out of 365. He had worked a 42 days on, 21 days off schedule and usually returned to the U.S. for his days off although he did spend time in Tunisia, England, Italy and Greece.
On a final note, as explained on page 143 of the "PINK" 17th edition of my ULTIMATE TAX BOOK, it is possible to have three countries after you for tax. If you are thinking of taking a job because a recruiter told you the money is tax free, think twice and check three times with competent individuals about what the rules "really are". No government likes giving up the right to tax its citizens.
DEBT SECURITIES - BANK ACCOUNTS
Non-residents of Canada with investments in Canada are subject to a 25% non-resident withholding tax on any money paid to them while they are out of the Canada. Therefore, if they have $10,000 in the Bank of Montreal and they live in Argentina, The Bank of Montreal must withhold 25 cents out of every dollar of interest paid to the account. Most tax treaty countries such as Great Britain, Germany, the United States, and Australia have a reciprocal agreement with Canada that limits the withholding to 15%.
CEN-TA Cross Border Services - Tax, Visas, Immigration