Trieste - Federal Court of Appeal confirms interpretation of habitual-abode tie-breaker test

The third "tie breaker" rule under the Canada-US treaty for determining an individual's residence refers to the individual's country of "habitual abode."  Dawson JA found no palpable error in Lamarre J's finding that a U.S. citizen who spent only 69 days out of 623 in the US had his habitual abode in Canada.  Following a review of the OECD commentaries and the Vienna Convention, Lamarre J in the Tax Court had concluded that the test of habitual abode in a jurisdiction turned on whether the individual "resided there habitually, in the sense that he regularly, customarily or usually lived [there]."

Scott Armstrong.  Summary of Trieste v. The Queen, 2012 FCA 320, aff'g 2012 DTC 1125 [at 3133], 2012 TCC 91 under Treaties - Article IV.