The Chairman (orally: November 18, 1974):
1 This is an appeal by Gordon R Eastwood against the reassessment of the Minister of National Revenue for the 1969 taxation year.
2 The question at issue is whether or not the appellant was ordinarily resident in Canada within the meaning of the Income Tax Act as it applied to the 1969 taxation year. The facts are brief and are not generally in dispute.
3 In December of 1968 the appellant went to teach and set up a course at an American university, one of two such temporary employments that he accepted as a result of research leave that he had built up as a teacher or professor at Simon Fraser University in Vancouver and which amounted, at that time, to about 8 months. He left Canada, as I have said, about the middle of December 1968, returned for one day to marry a Canadian resident, and then returned to the United States until June of 1969, when he accepted employment as a teacher of a summer course at Sir George Williams University in Montreal. He taught there until about the end of August, at which time he returned and took up his professorship at Simon Fraser University.
4 There is no doube whatsoever that he was not resident in Canada between January 1 and June of 1969, but the question is whether or not he was ordinarily resident in this country and that, as the appellant has argued, is a question of fact. The facts are that while in the United States he was treated (pursuant to Article 8 of the Canada-US Tax Convention) as a Canadian resident and that he paid no tax in the United States and filed no return because of Article 8 of that Convention. It makes no difference, in my view, (and I think the case of E G Stickel v Minister of National Revenue, [1973] C.T.C. 202, 73 D.T.C. 5178, [1974] C.T.C. 416, 74 D.T.C. 6268, supports that view), whether or not he paid tax or was liable for tax in the United States. He had a residence in Vancouver. He had a bank account here. He had a telephone listed in his name. He returned to Simon Fraser University approximately 8 months after he left, which coincides with the period of research leave that he had. He argues that research leave is different from sabbatical in that, where sabbatical leave is granted, it is a condition of the leave that the teacher return to the institution granting him the leave. Also, during the year 1969, he received funds from Simon Fraser University which were deposited in his Vancouver bank account.
5 Any one of these facts taken by itself would, in my view, be a neutral fact, but when one looks at the overall set of circumstances, the appellant has not satisfied me that he had no intention of returning to reside in Canada, or that he had successfully shed his Canadian residence. It is quite well accepted law that it is much easier to acquire a new residence than it is to shed an old one. It is also well established that one can have, in a given year, more than one place of residence. I cannot accept, from the evidence that I have heard today, that the appellant has discharged the onus under the Act. At best, in accepting what he has said, I am left with an equal balance and, in the result, he has not by preponderance of evidence convinced me that he had in the year 1969 divested himself of his situation of being ordinarily resident in Canada. Also, the expenses claimed while teaching at Sir George Williams were incurred as an employee of that university and, in my view, although no evidence really has been led on this subject, are nothing more than ordinary personal and living expenses that would not be deductible to an employee under those circumstances. Therefore, on all the evidence, I would dismiss the appeal.
6 I might add that I intended to include as part of the judgment that this is the second case of this kind that I have had come before me in the last three or four weeks, one being in Edmonton and the other, this one, here in Vancouver. It appears that the District Taxation Offices in Edmonton and in Vancouver have, for some time prior to the present, been treating sabbatical leave and research leave as sufficient to render the taxpayer non-taxable in Canada. In this case there has even been a letter from the Department to Simon Fraser University to that effect. Notwithstanding the fact that it is well established that the Minister is not bound by the statements of his agents or servants, the facts contained in those letters or statements and the practice that has existed up until now are wrong in law. It makes no difference what the Department has done in the past. If it has decided that appellants such as this should now and in the future be taxed as persons ordinarily resident in Canada and such action is found by this Board and the courts to be correct in law, they should be so taxed notwithstanding treatment to the contrary to previous or other taxpayers.
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