non-resident alien with US rental property -

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.

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QUESTION:

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?

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david ingram replies:

First of all, keep your rental if you ever intend to come back to BC.  I have had a dozen people I know sell their places in BC in 2001, 2 or 3 and move to Dubai, Qatar or Kuwait.  When they have come back 5 or six years later, they find that the house they sold has gone up in value more than the gross income they made in their tax free haven and their savings do not come close to getting them back into the market with an equal housing unit.

You can keep a $5,000,000 house in Canada and as long as it is rented to a stranger for a lease which is a year or more, it does not affect your residency.

You will have become a non-resident at some time.  For you, it may be April 1 and for your wife, it may be May15th.

Leaving your cars here in some sort of storage (even for free  in your brother-in-laws backyard) is more dangerous for residency purposes than leaving a rented $5,000,000 house.

You each need to file form NR6 for the 2008 rental BEFORE you leave. 

Then a year from now, you each need to file a 2008 departing Canada tax return with forms 1161 and maybe 1243 and 1244.  Failure to file T1161 usually results in a fine of $2,500 ($25.00 a day for 100 days).  Although I concede that you could be just a day late, the minimum penalty is $100 (4 days worth) but I have never seen one less than $2,500 because the forms are always three or four months or more late when late. These departing returns for 2008 are due by April 30, 2009.

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Then, assuming that you have followed my advice and kept the rental, you will need to file forms T1159 and T776 to report the non-resident rental income for the rental.  These 2008 Sec 216(4) Canadian non-resident rental returns are due by June 30, 2009.
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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 


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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);

• - residence of spouse, children and other dependent family members in a dwelling maintained by the individual in Canada;

• - memberships with Canadian churches, or synagogues, recreational and social clubs, 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.;

• - 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;

• - 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.;

• - 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%.