Test Bank and Solution Manuals for Introduction to Federal Income Taxation in Canada, 44th Edition () By Nathalie Johnstone

Test Bank and Solution Manuals for Introduction to Federal Income Taxation in Canada, 44th Edition () By Nathalie Johnstone CHAPTER 1 Introduction Solution 1: Identify section of the Act The following summary is discussed in more detail below: Case Topic Part Division Subdivision Provision (A) Person ..................................................... XVII — — subsection 248(1) (B) Donation by individual............................ I E a subsection 118.1(3) (C) Balance-due day...................................... XVII — — subsection 248(1) (D) Life insurance premiums......................... I B a subsection 6(4) (E) Capital dividend ...................................... I B h subsection 83(2) (F) Income tax instalments for individual..... I I — subsection 156(1) (G) Qualified small business corporation share I C — subsection 110.6(1) (H) Information return for dividends............. — — — Reg. Part II, paragraph 201(1)(a) (I) Definition of testamentary trust. ............. I B k subsection 108(1) (J) Employee loan. ....................................... I B f subsection 80.4(1) (K) Disposition of non-depreciable capital property................................................... XVII — — subsection 248(1) (L) RRSP administration fees. ...................... I B b paragraph 18(1)(u) (M) Limit on deductible expenses.................. I B f section 67 (N) Taxable dividends received by Canadian corporation .............................................. I C — subsection 112(1) (O) RRSP excess contributions ..................... X.I — — subsection 204.1(1) (A) Person — Part XVII, subsection 248(1): The term is used throughout the Act, so it is likely to be found in the interpretation section. The definition is similar to many in the Act in that it does not tell you exactly what a person is; it tells you what a person includes. (B) Donation by an individual — Part I, Division E, Subdivision a, subsection 118.1(3): Tax credits are found in Division E. Credits that are particular to individuals are found in Subdivision a of Division E. (C) Balance-due day — Part XVII, subsection 248(1): The term has application to all tax filers and, therefore, should be found in the interpretation section. However, the term has a different meaning depending on the type of tax filer. For trusts and individuals, specific timing is provided. For corporations, the provision refers to section 157. (D) Group term life insurance premiums paid by employer — Part I, Division B, Subdivision a, subsection 6(4): Payments made on behalf of an employee by an employer likely result in income from employment. Subdivision a includes the provisions for calculating income from employment. (E) Capital dividend — Part XVII, subsection 248(1): The term is found in subsection 248(1) but a definition is not actually provided, only a reference. It refers to another section — Part I, Division B, Subdivision h, subsection 83(2): Capital dividends are tax-free distributions by a corporation to its shareholders, so the provision is likely to be found in Part I, Division B, Subdivision h that deals with corporations and their shareholders. (F) Income tax instalments for an individual — Part I, Division I, subsection 156(1): The information that is required deals with payments to the CRA; therefore this information should be found in Division I dealing with returns, assessments, payment and appeals. [Some students may also identify subsection 155(1) as dealing with farmers and fishermen.] (G) Qualified small business corporation share — Part I, Division C, subsection 110.6(1): The capital gains deduction that is available for qualified small business corporation shares is a deduction that is available in computing taxable income and is therefore found in Division C. 1 2 Introduction to Federal Income Taxation in Canada (H) Filing information return for dividends paid — Regulations Part II, subsection 201(1): The Regulations provide important detail regarding a number of the income tax rules. In order to ensure that individuals are advised of the information required to be reported on their personal tax returns (and to allow the CRA to ensure that the income is reported), corporations are required to file slips such as T5s for dividends paid. (I) Testamentary trust — Part I, Division B, Subdivision k, subsection 108(1): The phrase describes a trust so it is likely that the definition will be found in Subdivision k dealing with trusts. Section 108 contains definitions for the subdivision. (J) Interest-free loan benefit — Part I, Division B, Subdivision f, subsection 80.4(1): Since the amount relates to an employee, it might be expected that the provision would be found in section 6 (in fact the provision that requires an income inclusion is found in subsection 6(9)). However, the actual calculation of the amount of income is found in Subdivision f which contains rules related to the calculation of income. (K) Disposition of non-depreciable capital property — Part XVII, subsection 248(1): The term “disposition” is used throughout the Act, so it is likely to be found in this definition section. (L) Limit on deduction of RRSP administration fees — Part I, Division B, Subdivision b, paragraph 18(1)(u): At one time, when the fees were deductible, they were considered a carrying charge deductible in computing income from property. Therefore, the restriction on the deduction is found in section 18 which provides a list of items that are specifically not deductible in computing income from business or property. (M) Limit on deductible expenses — Part I, Division B, Subdivision f, section 67: The restriction on the amount of deductible expenses applies throughout the Act. Therefore, the provision is found in general rules for computing income that are found in Subdivision f. (N) Corporate dividend deduction — Part I, Division C,subsection 112(1): The concept deals with a deduction that is available to a corporation. It might be expected to be found in Division B, Subdivision b dealing with the calculation of income from property. However, in this case, the deduction is not considered to reduce income from property but is a general deduction available in computing taxable income. (O) Excess RRSP contributions — Part X.I, subsection 204.1(1): This is a special tax that is found in the Act and applies when an individual has contributed more to an RRSP than is allowed by the Act. In this case, the special tax is intended to discourage people from taking advantage of the benefits of an RRSP beyond those that are provided for in the rules. Solutions to Chapter 1 Assignment Problems 3 Solution 2: Determine Income Using Ordering Rules [Note to instructors changes to this problem from the prior year include: Employment Income increased from $72,600 to $78,400; Business loss increased from 4275 to $400] Division B — Sec. 3 Par. 3(a) Subdivision a Sec. 5, 6, 7, 8 Employment income...................................................... $ $ 78,400 Subdivision b Sec. 9 Property income............................................................... $ 775 Sec. 9 Rental property income.................................................... 975 1,750 Subdivision d: Miscellaneous sources Par. 56(1)(a) Employment insurance..................................................... $ 600 Par. 56(1)(a) Retiring allowance ........................................................... 800 1,400 $ 81,550 Par. 3(b) Subdivision c: Net taxable capital gains Par. 38 Taxable capital gains (net of allowable capital losses)..... 100 $ 81,650 Par. 3(c) Subdivision e: Miscellaneous deductions Sec. 62 Moving expense............................................................... $ 1,700 Sec. 63 Child care expense ........................................................... 1,800 CPP enhanced deduction 631 (4,131) Par. 3(d) Losses from non-capital sources: $ 77,519 Sec. 9 Business loss................................................................ (400) Division B income....................................................................................... $ 77,119 Division C: Deductions — Sec 111.1 Par. 111(1)(a) Non-capital losses................................................................................ (600) Taxable income........................................................................................................................................$ 76,519 Division E: Basic federal tax — Sec. 118.92 Tax before credits ....................................................................................................................... $ 12,752 Sec. 118 Personal credits..................................................................................................... (2,250) Sec. 118.7 CPP contribution credit ....................................................................................... (469) Sec. 118.7 EI premium credit ................................................................................................ (150) Ssec. 118(10) Canada Employment tax credit ............................................................................ (205) Sec. 118.2 Medical expense credit ......................................................................................... (9) Sec. 118.1 Charitable donations credit ........................................................................................ (26) Basic federal tax.......................................................................................................................... $ 9,643 4 Introduction to Federal Income Taxation in Canada Solution 3: Identify and Define Words/Terms Found in Section 2 Words and terms found in section 2 (A) Division A of Part I of the Act consists of section 2 of the Act. Section 2 consists of three subsections. Subsection 2(1): “taxable income” — This is defined in subsection 2(2). “taxation year” — Subsection 249(1) contains the definition of a taxation year. For corporations, the taxation year is the fiscal period of the corporation; for individuals, the taxation year is the calendar year. “fiscal period” — This is also a defined term, found in subsection 249.1(1). “corporation” — This word is part of a defined term in subsection 248(1), “corporation incorporated in Canada”. “individual” — Subsection 248(1) defines individual as a person, other than a corporation, “person” — This is also defined in subsection 248(1). This is expanded below. “calendar year” — This is not defined in the Act. However, the Interpretation Act defines the term in paragraph 37(1)(a) to mean a period of twelve consecutive months commencing on January 1. “person” — The definition of person is found in subsection 248(1). Section 248 is an interpretation section and many of the words and terms used in the Act, which require definition, are found in this section. Person is defined to include any body corporate and politic, and the heirs, executors, administrators or other legal representatives of such body. “resident” — Although the Act includes a definition of deemed residents (subsections 250(1) and (4)), the word “resident” is not itself defined in the Act. Canadian residents are taxed on their worldwide income. As this term is fundamental to establishing a liability for Canadian tax, there have been many court cases centred on the issue of residency. The common law principles which have evolved from these cases are the basis for the interpretation of this word. Residency is more fully discussed in Chapter 2. “Canada” — Section 255 defines Canada to include certain sea beds adjacent to the coasts, as well as the airspace above the geographic boundaries of Canada. Subsection 2(2): As mentioned above, subsection 2(2) is itself a definition. This subsection is for the purpose of defining “taxable income.” “taxpayer” is found in subsection 248(1). This is any person, whether or not liable to pay tax. “income for the year” — Section 3 contains the blueprint for the calculation of income. The term “income,” however, is not defined. Section 3 states: “The income of a taxpayer for a taxation year for the purposes of this Part is his income determined by the following rules ...” In order to determine income under section 3, one has to first know what income is. As income is not defined, we again must turn to jurisprudence and common language. Again, there are numerous court cases over the issue of what constitutes income. Subsection 2(3): “employed” — Subsection 248(1) defines this word as performing the duties of an office or employment. “business” — Subsection 248(1) defines this word to include a profession, calling, trade, manufacture, or undertaking of any kind whatever, and an adventure or concern in the nature of trade. The definition excludes an office or employment. “carrying on a business in Canada” — Section 253 provides an extended meaning of this term, as it applies to nonresidents. This provides a number of criteria to expand when a business will be considered to be conducted in Canada. However, the term “carrying on a business” is not, itself, defined. Therefore, although we have an extended meaning of this term legislated by the Act, we will not find a legislated definition of the term itself. Again, there have been numerous cases disputing whether a business was carried on. “disposed” — Although the term disposed is not itself defined, “disposition” is defined in subsection 248(1) to be, in paragraph (a), any event or transaction which entitles the taxpayer to “proceeds of disposition.” “Proceeds of disposition” is, itself, a defined term found in subsection 13(21) and section 54. “taxable Canadian property” — This is defined in subsection 248(1) and is quite a lengthy definition. Taxable Canadian property includes, among other items, real property situated in Canada, shares of private Canadian companies, and certain partnership interests and trust interests which derive their value principally from these former two types of property. “taxable income earned in Canada” — Subsection 248(1) defines this term to mean taxable income determined in accordance with Division D of Part I, but in no case can this ever be less than nil. Solutions to Chapter 1 Assignment Problems 5 A review of section 2 clearly emphasizes the importance of understanding the terms used throughout the Act. In many examples, the Act will expand upon terms or provide computational rules for certain terms, but does not extend to providing a statutory definition of the term itself. This is one of many reasons why interpretation of the statute remains, at times, an imprecise practice. It also demonstrates that, while the Act is the cornerstone for the taxation system, it cannot be studied in isolation as it draws meaning from other external sources. Components of subsection 2(3) Subsection 2(3), like subsection 2(1), is a “charging provision”, because it charges someone with the responsibility to pay a tax. Components ofsubsection 2(3) (i) the person who is the subject of the provision • "a person who is not taxable under subsection (1)", i.e., a person who is not resident in Canada (i.e., a non-resident) (ii) the activity, event or condition that must be met for the provision to apply • a person • was employed in Canada • carried on business in Canada or • disposed of taxable Canadian property • note the use of the word "or" in the list of three activities (iii) the consequences of the activity or event to the person who is the subject of the provision • "an income tax shall be paid ... on the person's taxable income earned in Canada for the year ..." • note the use of the word "shall", indicating a mandatory payment (iv) the timeframe for the application of the provision • income is earned • at any time in the year or a previous year CHAPTER 2 Liability for Tax Solution 1: Individual residency — Multi-Part 1. Gather all the facts leading up to, during, and after the move. 2. Develop your best arguments for both resident and non-residentstatus. Be balanced in your analysis. 3. Analyze the strengths and weaknesses of your arguments by evaluating the facts rather than simply classifying or listing the facts. 4. Arrive at a conclusion of resident, non-resident, or deemed resident consistent with your analysis. 5. If there is a change in residency status, then determine the date on which that change most likely took place. In the year of change the individual will be a part-year resident, i.e., resident for part of the year and non-resident for part of the year. 6. If your conclusion is non-resident, then did the individual sojourn in Canada for 183 days or more while a non-resident? 7. If there is a change in residency status, then determine how the individual will pay tax: a. before the date on which their residency changed, b. after the date on which their residency changed, and c. for the year in which their residency changed. (a) Anthony and his wife both moved to Canada this year and have indicated an intention to stay permanently. We don’t have any information on how they cut their ties with their home country or how they established their ties in Canada. We also don’t have any information on their immigration status. Assuming Anthony has made a fresh start in Canada this year, he will be considered to have become a resident in this year. While his wife and children moved on December 15th, he will likely be considered to have become a resident on the earlier date. His wife and children will become residents on December 15th. Because Anthony had a change in residency in the year, the next step is to determine when his clean break/fresh start took place. In this case there is limited information so the obvious choice is March 1st. As of March 1, this year, he will be taxed in Canada on his world income. He will also be deemed to have acquired any capital property that he owned on that date at fair market value, so his cost base in Canada will be that fair market value. Also, because he had a change in residency in the year, he is considered a part-year resident. Accordingly, he will be taxed on his worldwide income from March 1 to December 31. Prior to March 1, he would only pay Canadian tax on income from Canadian sources. (b) Lubie is a US citizen who has lived there her entire life. She does not have property or family in Canada. Since she only spends her working hours in Canada, it would be reasonable to assume that her strongest ties are to the United States. Her trading activities can be conducted from either her US home or from her Canadian workplace. Since all of her primary residential ties are to the United States, the evidence would suggest that she would be considered resident of the United States. The 183-day sojourner rule would not apply, because Lubie does not stay in Canada overnight. Since there is no change in residency status, she is not a part-year resident. In Canada, as a non-resident, she will be taxed on her employment income as she is “employed in Canada”. There will also be withholding tax on any investment income earned in Canada. As a US citizen and resident, Lubie will be taxed in the United States on her world income. Therefore, she will have to apply for a foreign tax credit on her US return for the tax she pays in Canada. 7 8 Introduction to Federal Income Taxation in Canada (c) Since Ephran moved for a job, the house he shared with his common-law partner was sold, and his common-law partner moved with him, it seems clear that the primary residential ties were broken and that Ephran did make a clean break during the current year. There is no evidence that would indicate otherwise. The next question is “On what date did he become a non-resident?” The CRA’s position is that it will not be May 1st when he moved, but July 30th when his house was sold and his common-law partner moved to be with him. This would be considered the date of the “clean break”. An argument could also be made that Ephran made a clean break from Canada on May 1st. The sojourner rule only considers that period during the year when Ephran was a non-resident. Since there is no indication that he spent any time back in Canada after July 30th, he would not be considered to be sojourning in Canada during the current year. Ephran and his common-law partner will pay tax in Canada on their world income up to July 30th. After July 30, he will only be taxed on income from Canadian sources. They will also be deemed to have disposed of all capital property on July 30th. (d) Although she is a U.S. citizen, Julia’s primary residential ties are to Canada so she will likely be considered a resident of Canada. She lives in Canada with her parents. She attends a Canadian university and, on completion of university, she took a full-time job in Canada. All evidence indicates that she became a Canadian resident. Her summer job in Colorado seems to have been temporary. The difficult question is “When did she become a Canadian resident?” Was it in August two years ago when she moved to Canada or this year when she began full-time employment in Canada? Or did she make a decision in last year to move to Canada on a long-term basis? It appears that this year, at the latest, she will be considered a resident of Canada and taxed on her worldwide income. Citizenship is irrelevant to a person’s resident status in Canada, but Julia will also be taxable in the United States, since they tax based on citizenship. Consequently, Julia will be taxed in both Canada and the United States and will need to apply for a foreign tax credit on her US return for the tax she pays in Canada. (e) Because Helen’s primary residential ties remain in the United States, she will not be considered a resident of Canada under common law. However, she has sojourned in Canada for 183 days or more and will, therefore, be deemed to be a resident of Canada and taxed in Canada on her world income. However, as a citizen of the United States, she will also be taxed there on her world income. To avoid double taxation, she will need to refer to the Canada–US tax treaty to resolve the issue. Solutions to Chapter 2 Assignment Problems 9 Solution 2: Individual Residency—Case [Reference: Glow v. The Queen, 92 DTC 6467 (F.C.T.D.)] 1. Gather all the facts leading up to, during, and after the move. 2. Develop your best arguments for both resident and non-residentstatus. Be balanced in your analysis. 3. Analyze the strengths and weaknesses of your arguments by evaluating the facts rather than simply classifying or listing the facts. 4. Arrive at a conclusion of resident, non-resident, or deemed resident consistent with your analysis. 5. If there is a change in residency status, then determine the date on which that change most likely took place. In the year of change the individual will be a part-year resident, i.e., resident for part of the year and non-resident for part of the year. 6. If your conclusion is non-resident, then did the individual sojourn in Canada for 183 days or more while a non-resident? 7. If there is a change in residency status, then determine how the individual will pay tax: a. before the date on which their residency changed, b. after the date on which their residency changed, and c. for the year in which their residency changed. (A) Resident: taxed in Canada on worldwide income for the whole year. Criterion: continuing state of relationship with Canada; i.e., ties. Evidence: — born, raised and educated in Canada, — agreed to short-term contract abroad, — contract provided for living expenses, indicating the temporary nature of the stay abroad, — fees under the contract were paid to the client’s Canadian corporation, — he continued as a shareholder, director and officer of the Canadian corporation, — he maintained an interest in the activities of the Canadian corporation, — he maintained a Canadian bank account, — he owned a rental property in Canada, — he arranged a rental on a month-to-month basis to allow him to resume his habitation of the residence on short notice, — he stored his major furnishings and winter clothing in Canada, indicating an intention to return, — he retained credit cards issued in Canada and his RRSP accounts, — he maintained his health coverage in Canada, — he did not extend his visa in Nigeria, indicating an intention to return, — he did not pay income tax in Nigeria, indicating a lack of permanence in his stay there, — his girlfriend returned to Canada, spending only a fall term and a summer in Nigeria with him, indicating a lack of permanence in his stay, — he returned to Canada, leaving nothing in Nigeria. 10 Introduction to Federal Income Taxation in Canada (B) Deemed resident of Canada: taxed in Canada on worldwide income for the whole year. Criterion: sojourned in Canada for an aggregate of 183 days or more in the year [par. 250(1)(a)]. Evidence: — when he was in Canada until July 2022, he was not sojourning, despite being in Canada more than 183 days in that year, — therefore, deemed residence is not a possibility in this particular case for 2021. (C) Part-year resident in 2021: taxed in Canada on worldwide income for the part of the year while resident. Criterion: “clean break”, i.e., severed ties in July 2022. Evidence: — the Canadian bank account was only to avoid foreign exchange difficulties and to maintain his rental property, — no withholding of income tax on his fees, — he intended to establish an international consulting business abroad and to that end attempted to promote such a business in Nigeria, — he intended to sell his rental property in Canada when market conditions were right and to this end he arranged a rental on a month-to-month basis to facilitate a sale, — he moved his personal effects to Nigeria, — he sold his car, — he cancelled his auto insurance and a gasoline company credit card, — he was accompanied to Nigeria by his girlfriend who stayed with him when not in school, — he rented an apartment in Nigeria because more permanent accommodation was not available, — he obtained a Nigerian driver’s licence, — he maintained two bank accounts and cars in Nigeria, — he joined clubs in Nigeria, — he had an office in Nigeria, — his business cards identified him as a consultant to the Nigerian government, — the credit cards he kept could be used internationally, — he maintained his health coverage in Canada only because it was a requirement of his contract. (D) Non-resident: taxed in Canada on Canadian-source income. Criterion: employed in Canada, i.e., performed services of employment in Canada. Evidence: — after leaving in July 2022, he was not providing services of employment in Canada, — therefore, non-resident taxable in Canada is not a possibility in this case. (E) Conclusion: — while the client stated an intention to establish residence abroad, he was not successful in doing so: — in fact, he returned immediately at the termination of a short-term contract, — he did not sever his major ties to Canada or establish strong ties abroad, — his ties to Nigeria were merely those necessary to sustain a lifestyle while there; OR — on the other hand, it could be argued that: — he made an effort to establish a consulting practice abroad and the lack of business was unforeseen and beyond his control, — he attempted to integrate himself into Nigerian society by living there and joining clubs, — his lack of more permanent housing was due to market conditions beyond his control. Solutions to Chapter 2 Assignment Problems 11 Solution 3: Individual Residency—Case [Reference: Lee v. M.N.R., 90 DTC 1014 (T.C.C.)] 1. Gather all the facts leading up to, during, and after the move. 2. Develop your best arguments for both resident and non-residentstatus. Be balanced in your analysis. 4. Arrive at a conclusion of resident, non-resident, or deemed resident consistent with your analysis. 5. If there is a change in residency status, then determine the date on which that change most likely took place. In the year of change the individual will be a part-year resident, i.e., resident for part of the year and non-resident for part of the year. 6. If your conclusion is non-resident, then did the individual sojourn in Canada for 183 days or more while a non-resident? 7. If there is a change in residency status, then determine how the individual will pay tax: a. before the date on which their residency changed, b. after the date on which their residency changed, and c. for the year in which their residency changed. (A) Resident of Canada after a “fresh start”: taxed in Canada on worldwide income for the whole year. Criterion: “a continuing state of relationship”, i.e., continuing ties with Canada after a “fresh start”. Evidence of residence: — although U.K. passport indicated residence in U.K., can be resident in more than one place, — room in parent’s house maintained for his use before his marriage, but not likely after that time, — married in Canada to a person who continued to reside in Canada, — supported his wife who was wholly dependent on him in Canada, — his wife bought a house in Canada with funds which he provided, — house mortgaged in Canada with a guarantee provided by the client, — he provided an affidavit with the mortgage in which he swore that he was not a non-resident, — he regularly returned to Canada: — length of stay is not determining (see Thomson case), — the use of the term “visitor” by immigration officials does not mean that the term is applied with the same meaning under the Act, — income from his employment was deposited to a Canadian bank account, — he never filed or paid income tax anywhere: — it must be assumed that every person has at all times a residence (see Thomson case), — the mortgage on his first wife’s house in Britain and the Caribbean bank account may have been simply a foreign investment of a resident of Canada, — during the period in question, i.e., 2021 to 2023: — he purchased a car, — he obtained a Canadian driver’s licence, — he obtained a Canadian visa, — he became a landed immigrant. (B) Deemed resident of Canada for the years in question: taxed in Canada on worldwide income for the whole year. Criterion: sojourned in Canada for an aggregate of 183 days or more in a year [par. 250(1)(a)]. Evidence: — he may have been sojourning when he regularly returned to Canada, — but he was out of the country more than 183 days per year. 12 Introduction to Federal Income Taxation in Canada (C) Part-year resident in Canada after a “fresh start” and not resident before that time: taxed on worldwide income for the part of the year after the “fresh start”. Criterion: “fresh start” preceded by a period of non-residence. Evidence of non-residence: — history in England, — U.K. passport held throughout the period in question: — passport indicates residence in U.K., — parents maintain a room in England available for his use at any time, — affidavit on which he swore that he was not a non-resident was not for income tax purposes but for Ontario land transfer tax: — the concept of a non-resident for the transfer tax may differ from that for income tax, — on his entry to Canada, the length of his stay was limited by the setting of a date for his departure, — immigration officials considered him to be a visitor on stamping his passport, — he was employed on a full-time basis outside of Canada: — he indicated that he did not want to work in Canada, — — he was not allowed to work in Canada, — he could not join OHIP, pay El, maintain an RRSP or join a pension plan in Canada, — he held a mortgage in Britain on his first wife’s house, — he had a bank account in the Caribbean, — the bank account in Canada may have been for convenience or an investment like any other that a nonresident might make in Canada. (D) Non-resident throughout the period in question: taxed on Canadian-source income. Criterion: employed or carried on business in Canada. Evidence: — during the period in question he was neither employed nor carried on business in Canada. (E) Conclusion: — he cannot be deemed a resident, because he does not meet the criterion, — if he is held to be a non-resident throughout the period in question, he will not be taxable in Canada because he has no Canadian-source income, — therefore, either he made a “fresh start” at some point in the period or he was a non-resident throughout the period: — his ties to Canada appear to have begun with his marriage in June of 2021 and the subsequent purchase of a matrimonial home to which he returned regularly, — at least, he could be considered to have become a resident in September of 2021 when he swore that he was not a non-resident. Note: A conclusion for non-resident is acceptable, if an argument for a weighing of the facts in that direction is presented. Solutions to Chapter 2 Assignment Problems 13 Solution 4: Individual Residency—Case [Reference: Dale Boston v. The Queen, 98 DTC 1124 (T.C.C.)] 1. Gather all the facts leading up to, during, and after the move. 2. Develop your best arguments for both resident and non-resident status. Be balanced in your analysis. 3. Analyze the strengths and weaknesses of your arguments by evaluating the facts rather than simply classifying or listing the facts. 4. Arrive at a conclusion of resident, non-resident, or deemed resident consistent with your analysis. 5. If there is a change in residency status, then determine the date on which that change most likely took place. In the year of change the individual will be a part-year resident, i.e., resident for part of the year and non-resident for part of the year. 6. If your conclusion is non-resident, then did the individual sojourn in Canada for 183 days or more while a non-resident? 7. If there is a change in residency status, then determine how the individual will pay tax: a. before the date on which their residency changed, b. after the date on which their residency changed, and c. for the year in which their residency changed. (A) Resident of Canada: taxed in Canada on worldwide income for the whole year(s) in question. Criterion: “a continuing state of relationship”, i.e., continuing ties with Canada. Evidence of residence: — during the entire period in question his wife and 3 children (including one minor child) remained in Canada; — he had the family home in Edmonton available to him throughout the entire period in question as his wife and youngest son continued to reside in this home; — he remained on the payroll of the Canadian subsidiary of Exxon; — his monthly pay was deposited into his Edmonton bank account; — he remained a member of the pension plan of the Canadian subsidiary of Exxon; — he did maintain some Canadian investments: — his 50% interest in the family home in Edmonton, — a 50% investment in rental property which his wife purchased after his move to Malaysia because she thought it would be a good investment, — his RRSP, — his company savings plan, and — a few personal shares in Canadian public companies. (B) Deemed resident of Canada for the years in question: taxed in Canada on worldwide income for the whole year(s) in question. Criterion: sojourned in Canada for an aggregate of 183 days or more in a year [par. 250(1)(a)]. Evidence: — he may have been sojourning when he came to Canada for brief periods during 2018 and 2019; — but in neither of these years did he sojourn for a period in aggregate of 183 days; visits were 14 days in each of 2018 and 2019 and no days during 20, 2021 and 2022 prior to his return during the summer. 14 Introduction to Federal Income Taxation in Canada (C) Part-year resident in Canada in year of “clean break” or resident before the time: taxed on worldwide income for the part of the year prior to the “clean break”. Criterion: “clean break”, i.e., severed ties in September 2016. Evidence: — his employer obtained a work permit for him in Malaysia; — he sold his car in Canada; — he cancelled his Canadian provincial health plan; — his employer obtained private health insurance for him; — he closed all of his existing bank accounts at the Royal Bank; — he opened a savings account at the Bank of Nova Scotia because this bank had a branch in Kuala Lumpur, the capital of Malaysia; — although he was paid by the Canadian subsidiary of Exxon, the cost of his pay was transferred from the Canadian subsidiary to Exxon International; — no Canadian income taxes were withheld at source on his salary; — he allowed his membership in the Edmonton Petroleum Club to lapse; — he allowed his participation in the Model Guided Plane Association to lapse; — although his wife remained in Canada, their marriage was unstable (evidenced by the eventual separation) throughout the period in question and thus her presence in Canada cannot be considered a strong tie; — he was employed in Malaysia in a senior managerial capacity; — he hoped to stay on after the initial three years and in fact did remain for close to another four years; — he maintained a dwelling in Malaysia in which he slept, took his meals, and kept his personal effects; — he joined the local Malaysian yacht club; — he opened Malaysian bank accounts and obtained local Malaysian credit cards; — he purchased a car in Malaysia and obtained a Malaysian driver’s licence; — he did not come back to Canada at all in 2017 or for the period 2020 through the summer of 2022; he returned only briefly during 2018 and 2019. (D) Non-resident throughout the period in question: taxed on Canadian-source income. Criterion: employed or carried on business in Canada. Evidence: — during the period in question, he was neither employed nor carried on business in Canada; — although his pay was from a Canadian subsidiary of Exxon, his employment was outside of Canada. (E) Conclusion: — he cannot be a deemed resident, because he does not meet the 183-day criterion; — if he is held to be non-resident throughout the period in question, he will not be taxable in Canada because he has no Canadian-source income; — therefore, either he made a “clean break” at some point or he was a full-time resident throughout the period; — his ties to Canada quite clearly appear to have been severed in September 2016 when he moved to Malaysia to commence his new position; — he may have re-established ties to Canada in the summer of 2022 when he retired from Exxon and returned to Canada or in July 2023 when his employment in Thailand ended; — for the period from September 2017 through the summer of 2022 he appears to have been a nonresident of Canada. Solutions to Chapter 2 Assignment Problems 15 Solution 5: Corporate Residency—Multi-Part (a) Since ABI is incorporated in Canada after 1965, the company will be taxed on its worldwide income throughout the fiscal year regardless of where its operations and control occur. (b) Even though Nickel Company is incorporated outside of Canada, the facts indicate that the corporation’s “mind and management” reside in Canada. The fact that all of the directors and the president live in Canada, maintain all of the books and records in Ontario, and meet in Toronto for their monthly director’s meetings, clearly indicates the mind and management of the corporation is in Canada. Accordingly, it will be taxed on its worldwide income throughout the year. (c) Saffron Ltd. is considered a resident of the United States for tax purposes. The corporation would be taxable in the United States. Since the sales are direct, and no branch exists in Canada, the corporation is not subject to any income tax in Canada. 16 Introduction to Federal Income Taxation in Canada Solution 6: Corporate Residency—Case (A) Resident → taxed on worldwide income. (i) where “central management and control actually abides”: — central management and control in Korea, — general manager and other active officers live in Korea and have their offices there, — directors live in Korea; (ii) on the other hand, — company had a bank account in Canada, — company used the services of a Canadian investment dealer and a Canadian lawyer, — purchase and sale transactions were made in Canada. (B) Deemed resident under subsection 250(4) → taxed on worldwide income: (i) must be incorporated in Canada, — cannot be deemed resident because incorporated in United States. (C) Non-resident → taxed only on Canadian-source income [par. 2(3)(b)]: (i) must “carry on business in Canada”, 1. definition of “business” includes “an undertaking of any kind whatever and an adventure in the nature of trade” [ssec. 248(1)], — purchase and sale of aviation fuel could be an adventure in the nature of trade; 2. definition of “carrying on a business” includes offering anything for sale in Canada [par. 253(b)], — sale of shares and aviation fuel would both be included in the extended meaning of carrying on of business in Canada; 3. in the Tara case, the Court stated that an adventure in the nature of trade does not in itself constitute “carrying on a business in Canada” within the meaning of the words “carrying on business” (see also IT-459, par. 3), — the transaction could be considered to be part of the larger activity and, therefore not an isolated transaction; the purchase of fuel was part of the usual business that it was actively carrying on, — to carry on something involves continuity of time or operations as contemplated in the ordinary sense of a “business”; the purchase transaction in question was one of many of that nature over time, — the activities must be engaged in on a continuing basis, rather than as an isolated transaction to fall within paragraph 253(b). (D) Effect of Canada–Korea Income Tax Convention → possible exemption from tax: (i) business profits not earned from a permanent establishment in Canada are not taxed in Canada, 1. even if considered to be carrying on a business in Canada, insufficient evidence to substantiate a permanent establishment as defined in Article 5, — nothing more than a bank account, temporarily rented storage facilities, and arrangements with an investment dealer and a lawyer. (E) Conclusion: (i) not resident in Canada because central management and control appear to be in Korea, (ii) it may be considered to have carried on business in Canada, — however, the tax that would otherwise be paid from the carrying on of business is exempted by the Canada–Korea Income Tax Convention, because it did not carry on business through a permanent establishment in Canada. Solutions to Chapter 2 Assignment Problems 17 Solution 7: Corporate Residency—Case (A) Resident — Taxed on worldwide income: — where “central management and control” abides: — central management and control abides in the United States; — controlling shareholder, Board of Directors in the United States; — United States is major market; Canada is incidental; — on the other hand; — company had a bank account in Canada; — had an employee in Canada; — short-term supply contracts made in Canada; — but contracts more promotional; longer-term contracts required U.S. approval. (B) Deemed resident — Taxed on worldwide income [ssec. 250(4)]: — must be incorporated in Canada; — WCG incorporated in the United States; therefore, cannot be deemed resident. (C) Non-resident — Taxed only on Canadian-source income [par. 2(3)(b)]: — must carry on business in Canada; — activities mostly promotional; — but did conclude one short-term contract in Canada; — business includes an adventure in nature of trade; — activity may be considered an adventure in nature of trade because of isolated sale, marketing effort for one product; — possible argument that adventure in nature of trade does not constitute “carrying on” a business, because of lack of continuity. (D) Effect of Canada–U.S. Income Tax Convention: — even if carrying on a business in Canada, business profits must be from a permanent establishment in Canada to be taxable in Canada; — no business address in Canada; only employee with short-term accommodation in Canada. (E) Conclusion: — not resident in Canada because of central management and control in the United States; — unlikely to be considered to have carried on business in Canada: — event may be adventure in nature of trade, but no continuity; — no Canadian permanent establishment so Treaty exempts the corporation from Canadian taxation of any business profits.