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Resident of Canada or Pakistan for tax

QUESTION: Hi. I have Canadian/Pakistani dual nationality. I am
currently in Pakistan with my wife and kids (moved 3 years ago
from Canada). I was working for a major Financial company in
Toronto before moving to Pakistan. I sold off my house, cars etc.
before coming here. There's no income coming from Canada.
I am running a successful business here (in Pak) and file income
taxes as required. Canada and Pakistan (as you know) have a tax
treaty. Since I do not have any income from Canada, I have been
filing Canadian income taxes with zero income.
My wife and kids visit Canada almost every year for vacations as
my wife's parents live in Brampton, ON. They still have the OHIP
plan to cover them when they are there and have a Canadian credit
We are expecting our 3rd kid in Feb, 2007. My wife wishes to have
the baby delivered in Canada while she stays with her mom. Since
my kids are very attached to her, I was thinking of sending my
wife and kids to Canada for 5-6 months and have the kids (11 and
7) admitted to a school there.
Keeping the Canadian/Pakistani tax treaty in mind, do you think
there will be any tax impact (taxing on worldwide income) for me
having our 3rd kid delivered in Canada and having my other kids
go through school for 5 months. I will still be in Pakistan
though and will travel when my wife's about to have a baby.
I believe the Can/Pak tax treaty allows us to tax on income where
the income is generated only. Your guidance will be highly
appreciated. Thanks,
david ingram replies:
The short answer is that your family has OHIP and is using it.
If your wife and child are in Canada with OHIP, Canada has every
right to try and tax you.  You are in the position of being at
the very least a factual resident who must report his world
income but is likely exempt from Canadian income tax under
Article IV of the Canada Pakistan Income Tax Convention.
To qualify for OHIP, your wife and children have to be in Ontario
for 253 days a year every year.
In that case, your Canadian tax returns have been filed
incorrectly.  If there is any reason to file one, you should be
reporting your world income.  Then, if you are a real resident of
Pakistan, you  would exempt ALL of your income on line 256 of the
return under Article IV of the Treaty.
Having the baby here does NOT make you a resident.  Belonging to
OHIP does.
Read the following.
So what are the rules?
Well, to leave Canada for tax purposes, you must give up clubs,
accounts, memberships, driving licences, provincial health care
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
guarantee the Canadian Government that if YOU do not pay your tax
to Canada,
the AGENT WILL. Even after fulfilling the foregoing, the Canadian
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
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
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
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
It is possible to be physically "in Canada" and be treated as a
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
intended to leave Canada.  David MacLean was only working out of
country.  He still maintained a residence and could not ever
become a
resident of Saudi Arabia anyway. Dennis Lee "wanted" to live in
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
memberships, kept only one bank account and rented an apartment
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
Canadian Employer could waive tax deductions because he was a
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
The best that David MacLean can hope for is that he has a Saudi
temporary work permit.
In other words, when a person leaves a place, they usually leave
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
status. He was a British Subject who worked on offshore oil rigs.
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
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
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
- 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
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
- 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
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
- 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
clothing, furniture, family pets, etc.;
- obtaining landed immigrant status or appropriate work permits
in Canada;
- severing substantially all ties with former country of
"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
13, 1981 (the day he guaranteed the mortgage and signed the bank
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
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
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
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
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
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
registered in his father's name. He had maintained his Canadian
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'.
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
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
States. He was working on an offshore oil rig in Nigeria with a
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
and Information Circulars and Guidance Pamphlets. These documents
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
However, they kept their homes and families in Louisiana and kept
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
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
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
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
about what the rules "really are". No government likes giving up
the right
to tax its citizens.
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
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
but an American with money in a Canadian Bank has 15 cents out of
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
US / Canada / Mexico tax, Immigration and working Visa
US / Canada Real Estate Specialists
Home office at:
4466 Prospect Road
North Vancouver,  BC, CANADA, V7N 3L7
Cell (604) 657-8451 -
(604) 980-0321 Fax (604) 980-0325
Calls welcomed from 10 AM to 10 PM 7 days a week (please do not
fax or phone
outside of those hours as this is a home office)
email to taxman at <mailto:taxman at> <>
Disclaimer:  This question has been answered without detailed
information or
consultation and is to be regarded only as general comment.
Nothing in
this message is or should be construed as advice in any
circumstances. No contract exists between the reader and the
author and any
and all non-contractual duties are expressly denied. All readers
obtain formal advice from a competent and appropriately qualified
practitioner or tax specialist for expert help, assistance,
preparation, or
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