QUESTION:
My wife and I are citizens of the USA, and we are in the process of applying
for permanent residency in Canada (Victoria, British Columbia). Until we
are granted permanent residency, I understand that we are allowed to remain
in Canada for only six months. After six months in Canada, how long must we
return to the United States before we can return to Canada? I have heard
that we can return after a day, and I have also heard that we can only stay
six months each year. If the latter is true, who keeps track of our time in
Canada if we come and go several times for a month or two at a time?
You've created a very useful web site; many thanks, and best wishes - JJ
=========================================
david ingram replies:
There is a difference between income tax and immigration rules.
When you cross the border into Canada (or in reverse, a Canadian enters the
US), you are given a time period to be here depending upon what you say as
you enter the country.
For instance, if you live in Blaine and state that you are coming to
Vancouver to shop for a day, you will be asked one set of questions. If you
were from Wheeling West Virginia and state that you are going to be in
Victoria for a six month vacation, you would be asked another set of
questions.
In each case, you would be granted an "unwritten" visa status for the time
limit applied for.
In the first case, you would have been granted a one day / 24 hour status.
Changing your mind and staying for a week is technically illegal. Staying
for a year is also illegal but that is the way that many people enter Canada
or the USA.
In the case of the US, if you were caught over staying more than 180 days,
you are automatically banned from the US for 3 years. If you are caught
overstaying for more than 365 days, you receive a 10 year ban.
So, if a Canadian went shopping for the day in the USA and stayed for 182
days, he or she (if caught) would be banned from the USA for 3 years.
However, unless they earned money in the USA, would NOT have triggered
income tax on their world wide income because they were not in the US for
more than 183 days.
In the case of an American coming to Canada, there is no automatic banning
for an American and there would be no income tax liability to Canada either
unless money was earned in Canada.
That looks after the income tax for "less than 183 days" in either country
and it does not matter if the less than 183 days was in a single stay or if
the person stayed in Canada for 14 days at a time a dozen times (14 x 12 =
170 days).
The Immigration people at the border issue a stay for the time you are here
or there.
In both countries, if the number of days adds up to more than 183 days (see
the April 1994 newsletter for special US rules about parts of three years
being used to ad up to over 183 days), then the Canadian becomes liable for
income tax to the US on their Canadian Income and the American becomes
liable to Canada for income tax on their US income. Each country will give
a foreign tax credit for tax paid to the home source tax paid but will still
calculate the tax for the country you have been in for more than 183 days.
How do "they" keep track? The simple answer is that "they" (the CRA or IRS)
do NOT keep track. It is up to you to keep track. However, with the use of
cell phones and credit cards, it is possible to track most people's presence
in a country within hours.
So it is up to YOU to keep track.
The other point I have to make is that it is the practice of the Canada
Revenue Agency (CRA - equivalent to your IRS) to start taxing you from the
date you "apply" for Canadian Permanent Residency status if you spend a lot
of time here and have purchased or rented a specific property to live in
while spending that time in Canada.
Therefore, if you have applied to come here and are spending a lot of time
here, you should prepare your returns as if you were here.
The following will help explain the US Canada and Canadian Taxation system a
little better. Pay particular attention to Article IV of the Tax Treaty.
The whole dissertation can be found at www.centa.com click on US/Canada
Taxation on the right hand side:
Article IV - Fiscal Domicile - (it is the same number in most treaties)
For the purposes of this Convention, the term "resident of a Contracting
State" means any person who, under the law of that State, is liable to
taxation therein by reason of that person's domicile, residence,
citizenship, place of management, place of incorporation or any other
criterion of a similar nature, but in the case of an estate or trust, only
to the extent that income derived by the estate or trust is liable to tax in
that State, either in its hands or in the hands of its beneficiaries. For
the purposes of this paragraph, a person who is not a resident of Canada
under this paragraph and who is a United States citizen or alien admitted to
the United States for permanent residence (a "green card" holder) is a
resident of the United States only if the individual has a substantial
presence, permanent home or habitual abode in the United states and that
individual's personal and economic relations are closer to the United states
than any other third State. The term "resident" of a Contracting State is
understood to include:
(a) the Government of that State or a political subdivision or local
authority thereof or any agency or instrumentality of any such government,
subdivision or authority, and
(b) (i) A trust, organization or other arrangement that is operated
exclusively to administer or provide pension, retirement or employee
benefits, and
(ii) A not-for-profit organization that was constituted in that State,
and that is, by reason of its nature as such, generally exempt from income
taxation in that State.
2. Where by reason of the provisions of paragraph 1 an individual is a
resident of both Contracting States, then his status shall be determined as
follows:
(a) he shall be deemed to be a resident of the Contracting State in which he
has a permanent home available to him. If he has a permanent home available
to him in both Contracting States, he shall be deemed to be a resident of
the Contracting State with which his personal and economic relations are
closer (centre of vital interests);
(b) if the Contracting State in which he has his centre of vital interests
cannot be determined, or if he has not a permanent home available to him in
either Contracting State, he shall be deemed to be a resident of the
Contracting State in which he has an habitual abode;
(c) if he has an habitual abode in both Contracting States or in neither of
them, he shall be deemed to be a resident of the Contracting State of which
he is a national;
(d) if he is a national of both Contracting States or of neither of them,
the competent authorities of the Contracting States shall settle the
question by mutual agreement.
-------------------
That gets a little complicated but essentially, it says that you can only be
taxed on your world income in either Canada or the United States. Article
IV(2)(a) states you will be taxable where you have a permanent home
available to you.
Buying a home which is really yours but registered in your daughter's name
and she lives in it would mean you had a home available to you in Canada.
Then we would have to look at where the rest of the family was living, where
they spent their time, and where they worked (centre of vital interests).
If you were truly living 220 days in the US, had a job in the US and your
spouse is with you and you have given up your provincial medical and
driver's licences and taken out state equivalents in the USA, your tax home
would clearly be in the US and the home in your name or your daughter's name
would not make you taxable in Canada. This is true because of
Article IV of the US / Canada Convention (Treaty). If you were in the
Bahamas or Saudi Arabia or Panama or another tax treaty less country, this
would not be true.
==================
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.
Answers to this and other similar questions can be obtained free on Air
every Sunday morning.
Every Sunday at 9:00 AM on 600AM in Vancouver, Fred Snyder of Cartier
Partners and I will be hosting an INFOMERCIAL but LIVE talk show called "ITS
YOUR MONEY"
Those outside of the Lower Mainland will be able to listen on the internet
at
www.600AM.com
Local phone calls to (604) 280-0600 - Long distance calls to 1-866-778-0600.
Old shows are archived at the site.
David Ingram's US/Canada Services
US / Canada / Mexico tax and working Visa Specialists
US / Canada Real Estate Specialists
4466 Prospect Road
North Vancouver, BC, CANADA, V7N 3L7
Calls accepted from 10 AM to 10 PM 7 days a week
Res (604) 980-3578 Cell (604) 657-8451
Bus (604) 980-0321
davidingram at shaw.ca
www.centa.com www.david-ingram.com
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 particular
circumstances. No contract exists between the reader & the author and any
and all non-contractual duties are expressly denied. All readers should
obtain formal advice from a competent financial, or real estate planner or
advisor & appropriately qualified legal practitioner, tax or immigration
specialist in connection with personal or business affairs such as at
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This from ask an income tax immigration planning and bankruptcy expert
consultant guru or prep from www.centa.com or www.jurock.com or
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