The original question and answer follows this.
Thank you for your response. Unfortunately, I am still slightly unclear as to one of your points regarding residence and "Canada has the right to tax its citizens if they are not someplace else for 'most' of the time". Assuming all the facts from my prior attached e-mail (one and only tie to Canada would be my Canadian passport).
When a Canadian citizen moves to Switzerland (tax treaty country) their presence in Switzerland needs to be 180 days or more to be considered a Swiss resident, in addition to having Switzerland the centre of ‘vital interests’. If 180 days presence in Switzerland is not possible than the person MUST spend more time in Switzerland than in any other country in order to maintain residence status (along with centre of vital interests still in Switzerland only). Allowed to live in Switzerland – 4 months; tourist in United States – 3 months (not 120+ days to trigger US tax); tourist in France – 3 months; tourist in Canada – 2 months.
1) Canadian citizen (with only with ‘residential tie’ to Canada = Canadian Passport) resident of the Bahamas and 100% retired, with no assets or ties to any other countries. Could one than apply the same ‘Switzerland principal’ to Bahamas residence = Bahamas – 4 months as principal residence; United States – 3 months as tourist (not 120+ days to trigger US tax); France – 3 months as tourist; Canada – 2 months as tourist? or
2) Does the Canadian citizen have to be present in the Bahamas for 183 days or more and zero presence in Canada? or
3) Can the Canadian citizen be present in the Bahamas for 183 days or more and then allowed minimal presence in Canada (62 days - July & August) and the balance (120 days) in five other countries at 24 days each?
Thanks a million.
Sincerely,
===========================================================
david ingram replies:
1. To be a non-resident of another country, the policy of Canada does not match that of Switzerland.
2. This would be the ideal but is impractical, unfair and unlikely. I would prefer that the person attempting to escape Canadian residency were to remain out of Canada for at least one full calendar year to start.
3. After being away for the year, the Canadian should be in his home country for more than the 183 days and spend less than 2 or 3 months in Canada. as I said in my first reply.
.
----- Original Message -----
From: David Ingram at home - bus at taxman at centa.com
Sent: Friday, September 03, 2004 1:11 AM
Subject: Non-Resident of Canada - ask an International real estate mutual funds immigration income tax expert experts - David Ingram 's CENTA Services in North Vancouver BC Canada AM600 Radio
From:
Reply_To:
My_question_is: Canadian-specific
Subject: Non-Resident of Canada
Expert: taxman at centa.com
Date: Thursday September 02, 2004
Time: 07:23 PM -0700
QUESTION:
I am a Canadian born citizen and life-long resident of Canada. I plan to move permanently to the Bahamas, from Canada, and become a non-resident of Canada for tax purposes - according to Canada Revenue Agency bulletin IT-221R3 (Consolidated) Determination of an Individual's Residence Status.
Following bulletin IT-221R3 my only secondary residential tie to Canada will be my Canadian passport!
No dwelling place (or places), spouse or common-law partner, or dependants. In addition no personal property in Canada (such as furniture, clothing, automobiles and recreational vehicles), or social ties with Canada (such as memberships in Canadian recreational and religious organizations), or economic ties with Canada (such as employment with a Canadian employer and active involvement in a Canadian business, and Canadian bank accounts, retirement savings plans, credit cards, and securities accounts), or hospitalization and medical insurance coverage from a province or territory of Canada, or a driver's license from a province or territory of Canada, or a vehicle registered in a province or territory of Canada, or a seasonal dwelling place in Canada or a leased dwelling place referred to in 6, or memberships in Canadian unions or professional organizations. Also, no retention of a Canadian mailing address, post office box, or safety deposit box, personal stationery (including busin
In the Bahamas I will first obtain either an annual residence permit or a permanent residence permit followed immediately by a house purchase, personal property in the Bahamas (such as furniture, clothing, automobiles and recreational vehicles), social ties with the Bahamas (such as memberships in Bahamian recreational organizations), economic ties with the Bahamas (such as active involvement in a Bahamian business, and Bahamian bank accounts, credit cards, and securities accounts), medical insurance coverage from a private non-Canadian company, a Bahamian driver's license from Nassau, Bahamas, a vehicle registered in Nassau, Bahamas, memberships in Bahamian professional organizations. Also, a Bahamian only mailing address, post office box, or safety deposit box, personal stationery (including business cards) showing a Bahamian address, telephone listings in the Bahamas, and local (Bahamas) newspaper and magazine subscriptions.
How many days can I spend in Canada per year on an extended vacation? I have been told up to 180-days per year, but I only wish to spend the months of June, July, and August in Canada every year. If I stayed in Canada up to 180 days per year would I still be a non-resident of Canada?
Please let me know what you think. I can be reached at (306); fax (306) or e-mail at zz.ca. Thank you very much.
Sincerely,
=============================================
david ingram replies:
Canada has the right to tax its citizens who have not demonstrated that they are true residents of another country.
If you are actively working and living in the Bahamas or Turks and Caicos or Grand Cayman or any other tax haven country and are in that country for 9 months of the year and come back to North America for three month vacations, you should be okay. If, on the other hand, you spend 4 months in the US, 4 months in the Bahamas, a month in Europe and three months in Canada, and the US will each have a chance to tax you because the US has a 120 day a year average for three year rule and Canada has the right to tax its citizens if they are not someplace else for "most" of the time.
In Judge Teskey's decision in the Dennis Lee case, Judge Teskey referred to the frequency and "duration" of visits to Canada. Three months has a strong duration. Four months does make you taxable in the USA if there for 120 days a year three years in a row.
The actual US calculation is all the days in the current year plus 1/3 of the days in the previous year and 1/5 of the days two year previous. If this adds up to more than 183 days, the parking flag is up and you owe tax to the US on your world wide income. A batch of airline pilots who set up legal residence in Costa Rica while keeping an apartment in the US while flying for Air Canada or Canadian Airlines. They ended up spending 4 1/2 months in the US, 4 months flying overseas and spent the rest in Canada and Costa Rica.
They are all still under appeal but you get the idea.
In other words, I think three months is too long in Canada.
Read the following cases and you will see what I mean.
Judge Teskey says it all in the following which I have taken out of my BORDER BOOK. You can find the whole chapter at www.centa.com - click on US / CANADA taxation.
So 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%. So we have the anomaly that a Canadian with money in a bank in the U.S. has no withholding but an American with money in a Canadian Bank has 15 cents out of every dollar withheld as a foreign withholding tax. The American would report his interest on schedule A of his 1040 tax return and claim the tax withheld as a foreign tax credit on a form 1116.
David Ingram's US/Canada Services
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