THORSON,
J.—This
is
an
appeal
under
the
Income
War
Tax
Act,
R.S.C.
1927,
chap.
97,
from
an
assessment
for
the
year
1940
and
turns
on
the
question
whether
the
appellant
was
residing
or
ordinarily
resident
in
Canada
during
such
year.
The
appellant
was
born
at
St.
John,
New
Brunswick,
in
1872.
He
lived
there
and
carried
on
business
as
steamship
owner
until
1918,
when
he
retired
and
became
interested
in
a
public
utility
company
until
1921.
On
his
retirement
he
moved
to
Rothesay,
a
village
near
St.
John.
In
1922
he
had
a
dispute
with
the
village
tax
authorities
over
personal
property
tax
and
decided
to
leave
Canada.
He
announced
his
intention
of
giving
up
residence
in
Canada
to
the
New
Brunswick
Cabinet
and
to
his
friends
and
notified
the
Rothesay
tax
authorities.
In
1923
he
went
to
Bermuda,
rented
a
house
there,
made
an
affidavit
in
which
he
says
he
declared
that
he
had
come
to
Bermuda
to
establish
his
home
and
domicile
there
and
that
he
intended
to
stay
there
indefinitely,
and
obtained
a
passport
for
10
years.
He
took
out
a
new
passport
on
December
8,
1933,
from
the
British
Consulate
at
Savannah,
Georgia,
in
which
he
stated
his
domicile
as
St.
Georges,
Bermuda,
which
was
renewed
by
the
British
Consulate
at
Baltimore
until
December
8,
1943.
He
took
out
a
fresh
passport
from
the
same
consulate
on
February
7,
1943.
He
made
his
arrangements
for
the
rental
of
a
house
in
Bermuda
because
he
thought
it
necessary
to
do
so
to
establish
residence
there,
but,
although
he
paid
rent
for
1
or
2
years,
he
never
occupied
the
house
or
did
anything
with
it.
Apart
from
his
short
stay
in
1923
to
make
the
arrangements
mentioned
he
spent
only
6
days
in
Bermuda
in
1926,
8
in
1928
and
6
in
1933,
and
has
not
been
there
at
all
since
1933.
He
never
owned
any
property
or
had
any
assets
or
bank
account
there.
He
has,
however,
consistently,
since
1923,
described
himself
as
a
resident
of
Bermuda.
The
appellant
appeared
at
the
hearing
and
gave
detailed
particulars
of
his
movements
from
January
1,
1925,
to
December
31,
1941,
compiled
from
his
diaries,
in
which
he
recorded
the
temperatures
and
his
golf
seores.
He
stated
that
he
roamed
all
over
to
play
golf
and
this
appears
to
be
his
main
activity
in
life,
together
with
an
interest
which
he
takes
in
improving
at
his
own
expense
the
golf
courses
over
which
he
plays.
Between
1923
and
1932
the
appellant
spent
only
the
following
days
in
Canada;
none
in
1924,
101
in
1925,
none
in
1926,
8
in
1927,
2
in
1928,
15
in
1929,
64
in
1930
and
2
in
1931.
The
2
days
spent
in
1928
were
in
connection
with
a
visit
made
to
Ottawa
to
collect
some
money
from
the
Custodian
of
Alien
Enemy
Property
and
to
settle
an
income
tax
account
for
the
year
1923.
He
paid
$180.40
in
full
of
this
account
on
October
8,
1928,
and
on
November
5,
1928.
Mr.
C.
8.
Walters,
who
was
then
Commissioner
of
Income
Tax,
wrote
to
him
at
an
address
in
Boston
as
follows:
"‘With
reference
to
our
conversation
on
the
25th
September
last,
the
District
Inspector
of
Income
Tax
at
St.
John
has
forwarded
to
this
office
the
Return
which
you
have
now
filed
for
the
year
1923
in
respect
of
which
you
have
paid
the
sum
of
$180.40.
This
will
advise
that
your
liability
under
the
Income
War
Tax
Act
up
to
and
including
the
calendar
year
1927
has
been
discharged.
You
will
not
become
taxable
again
under
The
Income
War
Tax
Act
until
(a)
you
again
take
up
residence
in
Canada;
(b)
you
sojourn
in
Canada
for
a
period
or
periods
amounting
to
183
days
during
a
calendar
year;
(c)
you
are
employed
in
Canada;
(d)
you
carry
on
business
in
Canada;
or,
(e)
you
derive
income
for
services
rendered
in
Canada.
In
any
such
case
you
would
become
liable
to
taxation
in
Canada,
and
would
be
required
to
again
file
a
Return
for
taxation
purposes.”
Up
to
this
time
the
appellant
had
spent
most
of
his
time
at
Pinehurst
in
North
Carolina,
living
in
one
rented
house
after
another.
In
1930,
however,
he
built
a
house
at
Pinehurst,
costing
approximately
$90,000.
He
then
moved
his
furniture
to
Pinehurst
from
Rothesay,
having
disposed
of
the
residence
there.
The
new
house
at
Pinehurst
was
his
chief
place
of
abode
in
the
United
States,
his
wife
and
only
son
living
there
with
him.
He
kept
a
man
looking
after
it
the
whole
year,
even
when
he
was
away
playing
golf
somewhere
else.
The
house
was
always
open
and
available
to
him.
In
1932
the
appellant
spent
134
days
at
St.
Andrews,
a
summer
resort
not
far
from
St.
John.
He
rented
a
house
and
brought
his
wife,
son
and
grandson
with
him.
His
wife
wanted
to
come
there,
having
relatives
and
friends
at
St.
John.
This
was
the
reason,
according
to
the
appellant,
why
he
established
a
summer
place
there.
He
paid
$700
per
year
for
it
and,
although
he
was
only
a.
tenant,
put
in
new
bathrooms
and
other
improvements.
As
he
put
it
he
was
"‘stuck
with
a
house
and
had
to
make
it
comfortable.’’
He
came
back
to
the
same
rented
house
in
1933
and
1934,
spending
138
days
there
in
1933
and
81
in
1934.
In
1934,
however,
he
built
a
house
at
East
Riverside,
a
place
near
Rothesay,
adjacent
to
the
Golf
Club,
which
cost
him
close
to
$90,000,
and
bought
about
$16,000
worth
of
furniture.
with
which
to
furnish
it.
The
house
was
a
large
one
consisting
of
from
15
to
20
rooms.
The
appellant
gave
as
his
reason
for
building
this
house
the
fact
that
he
had
no
desire
to
come
to
Canada
himself,
but
his
wife’s
relatives
were
in
New
Brunswick
and
she
enjoyed
‘sojourning’
with
them
during
the
summer
months.
His
wife’s
relatives
and
friends
lived
in
St.
John
and
at
Rothesay
and
it
was
her
desire
to
be
nearer
to
them
than
St.
Andrews.
Since
then
and
up
to
1942
the
appellant
spent
his
summers
in
this
house
with
his
wife
and
family
together
with
his
staff
of
servants.
There
the
appellant
spent
156
days
in
1935,
138
in
1936,
169
in
1937,
145
in
1938,
166
in
1939,
159
in
1940
and
115
in
1941.
He
stated
that
after
receiving
the
letter
from
Mr.
Walters
he
thought
that
if
he
did
not
spend
more
than
183
days
in
Canada
in
any
one
year
he
was
not
liable
for
income
tax.
He
placed
the
house
in
the
name
of
a
company
which
he
incorporated
as
Property
at
East
Riverside
Limited,
in
which
he,
his
wife
and
his
son
had
one
share
each
in
trust,
the
balance
being
held
by
another
company
called
Prospect
Mining
Company
Limited,
a
company
which
he
incorporated
in
Newfoundland,
the
shares
of
which
were
owned
by
himself,
his
wife
and
his
son.
The
appellant
paid
for
the
house
and
furniture,
paid
the
annual
taxes
on
the
property
and
paid
for
its
annual
maintenance.
He
kept
a
housekeeper
and
his
wife
there
each
winter.
The
servant’s
quarters
were
open
all
the
year
round
but
the
rest
of
the
house
was
closed
after
he
left
in
the
fall
until
he
came
back
the
following
summer.
His
routine
of
life
was
now
established.
After
it
was
too
cold
to
play
golf
at
East
Riverside
he
went
south
to
his
house
at
Pinehurst;
then
he
frequently
went
to
Florida,
where
he
had
a
house
at
Belleair,
but
when
it
got
too
hot
to
play
there
he
went
back
north
to
Pinehurst
and
then
back
to
East
Riverside.
As
he
moved
from
place
to
place
he
took
his
family,
his
motor
cars
and
his
staff
of
servants
with
him.
In
1940
the
appellant
entered
Canada
as
a
tourist
from
Bermuda
although
he
came
from
Boston,
and
brought
his
automobiles
with
him
under
tourist
permits
for
six
months.
He
remained
at
his
house
at
East
Riverside
with
his
wife
and
family
as
in
previous
years
from
May
8
to
October
25,
with
the
exception
of
two
brief
trips
to
Boston
and
one
to
Perth
and
then
returned
to
Pinehurst
as
usual.
In
the
United
States
the
appellant
paid
income
tax
as
a
nonresident
from
1930
to
1940,
but
since
then
he
has
been
forced
to
pay
as
a
resident.
He
said
that
the
United
States
authorities
put
a
lien
on
everything
he
had
and
that
he
compromised
with
them
because
he
had
to
do
so.
Since
1940
he
has
paid
income
tax
in
the
United
States
on
the
full
amount
of
his
income,
without
exemption,
but
it
took
strong
action
on
the
part
of
the
auhorities
to
compel
him
to
do
so.
The
appellant
returned
to
East
Riverside
in
1941,
but
this
time
as
a
visitor
from
the
sterling
area.
While
he
was
there
he
received
a
letter
from
the
acting
inspector
of
income
tax
at
St.
John,
dated
August
11,
1941,
requesting
him
to
make
his
income
tax
returns
for
1940,
showing
his’
income
from
all
sources,
and
advising
him
that
consideration
would
be
given
to
a
portion
of
taxes
paid
in
the
United
Kingdom
and
in
the
United
States.
He
replied
that
as
he
understood
the
Canadian
law
he
was
not
compelled
to
file
any
income
tax
statement
as
his
domicile
was
in
Bermuda
and
that
he
was
visiting
Canada
as
a
tourist.
In.
consequence
of
his
refusal
to
file
any
return
an
assessment
amounting
to
$21,122.00
tax
and
$480.31
interest
was
levied
against
him
for
the
year
1940,
based
upon
an
assumed
income
of
$50,000.
The
Minister
determined
the
amount
of
the
tax
to
be
paid
under
the
authority
of
section
47
of
the
Income
War
Tax
Act.
From
the
assessment
the
appellant
took
an
appeal
to
the
Minister
in
which
he
stated
that
he
was
a
resident
of
Bermuda,
his
residence
dating
as
far
back
as
1923
and
that
during
1940
he
sojourned
in
Canada
for
161
days.
No
objection
was
raised
as
to
the
amount
of
the
assessment,
the
only
contention
being
a
denial
of
liability
under
section
9
or
any
other
section
of
the
Act.
The
Minister
affirmed
the
assessment
on
the
ground
that
the
facts
disclosed
that
the
taxpayer
was
resident
or
ordinarily
resident
in
Canada
during
the
year
1940
and
hence
was
subject
to
income
tax
as
provided
by
paragraph
(a)
of
section
9
of
the
Act.
After
notice
of
dissatisfaction
by
the
appellant
and
the
reply
of
the
Minister,
an
appeal
from
the
assessment
was
duly
lodged
in
this
Court.
The
only
question
to
be
determined
is
whether
the
appellant
in
1940
was
‘‘residing
or
ordinarily
resident
in
Canada
during
such
year,’’
within
the
meaning
of
section
9(a)
of
the
Income
War
Tax
Act,
as
it
was
in
force
in
1940,
or
whether
he
was
merely
sojourning
there
within
the
meaning
of
section
9(b).
Section
9
provides
in
part
as
follows:
"9.
There
shall
be
assessed,
levied
and
paid
upon
the
income
during
the
preceding
year
of
every
person
(a)
residing
or
ordinarily
resident
in
Canada
during
such
year;
or
(b)
who
sojourns
in
Canada
for
a
period
or
periods
amounting
to
one
hundred
and
eighty-three
days
during
such
year;
or”
The
terms
"‘residing’’
and
"‘ordinarily
resident”
are
not
defined
in
the
Act,
and
apart
from
In
re
Income
Tax
Act
(1933),
41
M.R.
621,
there
is
a
dearth
of
Canadian
authority
on
the
question
under
review.
There
are,
however,
many
cases
in
the
United
Kingdom,
in
which
the
terms,
as
they
appear
in
the
Income
Tax
Acts
of
Great
Britain,
have
been
considered,
that
are
helpful.
The
words
are
common
English
words
and
resort
may
be
had
to
dictionaries
to
determine
their
meaning.
The
word
"
sojourns’’
may
be
dealt
with
in
the
same
way.
The
Shorter
Oxford
English
Dictionary
gives
the
meaning
of
^reside”
as
being
"‘To
dwell
permanently
or
for
a
considerable
time,
to
have
one’s
settled
or
usual
abode,
to
live,
in
or
at
a
particular
place”.
By
the
same
authority
“ordinarily”
means
“1.
In
conformity
with
rule;
as
a
matter
of
regular
occurrence.
2.
In
most
cases;
usually,
commonly.
3.
To
the
usual
extent.
4.
As
is
normal,
usual”.
On
the
other
hand
the
meaning
of
the
word
“sojourn”
is
given
as
“to
make
a
temporary
stay
in
a
place,
to
remain
or
reside
for
a
time.”
Sojourning
is
the
temporary,
from
day
to
day
stay
of
a
transient
or
visitor,
whereas
residing
implies
a
regular
and
usual
relationship.
'The
cases,
as
it
will
be
seen,
really
carry
one
no
further
than
the
dictionary,
and,
in
the
main,
are
but
useful
illustrations
of
the
circumstances
under
which
a
person
may
be
considered
as
residing
or
ordinarily
resident
in
a
place
or
country.
The
cases
clearly
indicate
that
a
person
must
reside
somewhere.
Rogers
v.
Inland
Revenue
(1879),
1
T.C.
225.
When
it
is
a
question
whether
a
man
is
resident
in
a
country,
it
is
not
necessary
that
he
should
have
a
fixed
place
of
abode
therein,
for
even
a
homeless
tramp
in
a
country
may
be
a
resident
of
it.
Reid
v.
The
Commissioners
of
Inland
Revenue
(1926),
10
T.C.
673.
Residence
in
a
place
must
indicate
something
more
than
mere
presence
as
Lord
Hanworth,
M.R.
said
in
Levene
V.
The
Commissioners
of
Inland
Revenue
(1928),
13
T.C.
486
at
496.
Indeed,
it
has
been
established,
ever
since
In
re
Young
(1875),
1
T.C.
57,
that
constant
personal
presence
in
a
place
is
not
essential
to
residence
there,
and
that
a
person
may
continue
to
be
resident
in
a
place
although
physically
absent
from
it.
In
that
case,
a
master
mariner,
trading
between
Glasgow
and
foreign
ports,
having
a
house
for
his
wife
and
family
in
Glasgow,
was
held
to
be
“residing
in
Great
Britain”
and
liable
for
assessment
on
his
salary,
notwithstanding
that
he
was
abroad
for
the
greater
part
of
the
year.
At
page
59,
the
Lord
President
(Inglis)
said:
“anything
like
continuous
residence
is
not
a
thing
that
this
statute
can
be
held
to
contemplate
at
all,
if
by
continuous
residence
were
meant
constant
personal
presence
in
one
place.”
and
later
:
"‘I
have
no
doubt
myself
that
if
a
man
has
his
ordinary
residence
in
this
country,
it
does
not
matter
much
whether
he
is
absent
for
a
greater
or
a
shorter
period
of
each
year
from
that
residence
or
from
the
country
itself.
That
is
a
thing
that
depends
a
good
deal
on
a
man’s
occupation,
or
it
may
be
on
his
tastes
and
habits,
especially
in
the
latter
case,
if
he
is
a
man
not
requiring
to
be
engaged
in
business
for
his
maintenance.”
The
appellant’s
contention
that
he
has
been
a
resident
of
Bermuda
since
1923
may
be
dismissed
curtly.
His
motions
in
going
there,
making
an
affidavit
as
to
his
intentions,
renting
a
house,
which
he
never
used,
and
obtaining
a
passport
were
a
pure
farce.
In
my
view,
he
never
became
a
resident
of
Bermuda,
but
whether
that
is
so
or
not,
he
was
certainly
not
a
resident
of
Bermuda
in
1940.
He
had
not
been
there
since
1933
and
his
entry
into
Canada
as
a
tourist
from
Bermuda
was
purely
fictitious.
Even
if
he
were
a
resident
of
Bermuda
that
would
not
prevent
him
from
being
a
resident
of
Canada
as
well
for
it
is
well
established
that
while
a
person
can
have
only
one
domicile,
he
can
have
more
than
one
residence.
Lloyd
v.
Sully
(1884),
2
T.C.
37.
In
that
case
a
merchant
carrying
on
business
in
Italy
where
he
ordinarily
resided
also
owned
a
place
of
residence
in
the
United
Kingdom,
at
which
he
dwelt
with
his
family
for
several
months
in
the
year.
He
was
held
to
be
a
resident
in
the
United
Kingdom
and
liable
to
income
tax
in
respect
of
the
profits
of
the
business
carried
on
abroad.
At
page
41,
the
Lord
President
(Inglis)
said:
"‘Now
if
a
man
could
only
be
resident
in
one
place
in
any
particular
year
there
might
be
a
great
difficulty,
but
surely
there
is
nothing
more
familiar
to
one’s
mind
than
that
a
man
has
during
a
particular
year
or
during
a
course
of
years,
residences
in
different
places
existing
at
the
same
time.
A
man
cannot
have
two
domiciles
at
the
same
time,
but
he
certainly
can
have
two
residences.’’
And
later
he
said
of
the
various
residences
a
man
may
have
:
"‘these
are
all
residences
in
the
proper
sense
of
the
term,
that
is
to
say,
they
are
places
to
which
it
is
quite
easy
for
the
person
to
resort
as
his
dwelling
place
whenever
he
thinks
fit,
and
to
set
himself
down
there
with
his
family
and
establishment.
’
’
The
same
view
was
taken
in
Cooper
v.
Cadwalader
(1904),
5
T.C.
101.
There
an
American
ordinarily
resident
in
New
York
with
no
place
of
business
in
the
United
Kingdom
rented
a
house
and
shooting
rights
in
Scotland
where
he
spent
about
two
months
continuously
in
each
year.
It
was
held
that
he
was
a
person
"‘residing
in
the
United
Kingdom
‘‘
and
liable
to
income
tax
assessment.
The
words
^ordinarily
resident”
have
been
considered
in
a
number
of
cases.
In
Reid
v.
The
Commissioners
of
Inland
Revenue
(1926),
10
T.C.
673,
the
facts
were
striking.
For
a
number
of
years
prior
to
May,
1916,
the
appellant,
a.
British
subject,
shared
a
house
in
Glasgow
with
two
sisters,
but
partly
for
considerations
of
health
was
in
the
habit
of
travelling
abroad
for
the
greater
part
of
the
year
spending
only
the
summer
months
in
the
United
Kingdom.
In
May,
1916,
the
house
was
given
up
and
the
furniture
sold,
and
from
that
time
the
appellant
lived
in
hotels
in
Glasgow
or
London
until
July,
1919,
when
she
again
went
abroad.
Except
for
a
four
day
visit
to
London
in
September,
1919,
she
remained
abroad,
travelling
about
from
place
to
place
on
the
continent
of
Europe,
till
the
end
of
June,
1920.
She
then
came
back
and
stayed
at
a
hotel
in
London
until
October
14,
1920,
when
she
returned
to
the
Continent
and
remained
abroad
until
after
April
5,
1921,
when
she
returned
to
London.
While
on
the
Continent
she
had
no
place
of
residence
in
the
United
Kingdom
or
any
apartments
reserved
for
her
use,
but
she
had
a
banking
account
in
London,
and
her
personal
effects
were
stored
there.
The
appellant
contended
that
she
was
not
ordinarily
resident
in
the
United
Kingdom
for
the
two
years
ending
April
5,
1921,
and
claimed
exemption
from
Income
Tax
for
those
years
under
a
section
of
the
Income
Tax
Act
of
1918
granting
such
exemption
to
a
person
who
was
not
"ordinarily
resident
in
the
United
Kingdom.”
The
Special
Commissioners
found
that
the
appellant
was
ordinarily
resident
in
the
United
Kingdom
for
the
years
in
question
and,
on
an
appeal
being
taken,
it
was
held
that
there
was
evidence
upon
which
the
Commissioners
could
come
to
their
decision
and
that
they
had
not
misdirected
themselves
in
law.
At
page
680,
the
Lord
President
(Clyde),
after
setting
out
the
facts,
said
:
"It
was
contended
on
her
behalf
that,
even
if
these
facts
are
consistent
with
her
being
held
to
"reside”
in
the
United
Kingdom,
they
are
inconsistent
with
the
view
that
she
"ordinarily”
so
resides.
And
here
again
the
argument
was
that
the
meaning
of
the
word
is
governed—wholly
or
mainly—by
the
test
of
time
or
duration.
I
think
it
is
a
test,
and
an
important
one;
but
I
think
it
is
only
one
among
many.
From
the
point
of
view
of
time,
"ordinarily”
would
stand
in
contrast
to
casually
But
the
appellant
is
not
a
"casual”
visitor
to
her
home
country;
on
the
contrary
she
regularly
returns
to
it,
and
^resides”
in
it
for
a
part—albeit
the
smaller
part—
of
every
year.
I
hesitate
to
give
the
word
"‘ordinarily’’
any
more
precise
interpretation
than
‘in
the
customary
course
of
events”
and
anyhow
I
cannot
think
that
the
element
of
time
so
predominates
in
its
meaning
that,
unless
the
appellant
resided
in
the
United
Kingdom
for
at
least
six
months
and
a
day
she
could
not
be
said
"
"
ordinarily
”
to
reside
there
in
the
year
in
question.”
In
Levene
V.
The
Commissioners
of
Inland
Revenue
(1928),
13
T.C.
486,
the
facts
were
that
the
appellant,
a
British
subject,
leased
a
house
in
London
until
March,
1918.
He
then
surrendered
his
lease,
sold
his
furniture,
and
until
January,
1925,
had
no
fixed
abode
but
stayed
at
hotels
either
in
England
or
abroad.
Until
December,
1919,
he
stayed
in
England
and
it
was
admitted
that
up
to
that
date
he
was
both
resident
and
ordinarily
resident
in
the
United
Kingdom.
In
that
month
he
went
abroad
and
did
not
return
until
July,
1920,
and
from
that
date
until
January,
1925,
he
spent
between
four
and
five
months
each
year
in
the
United
Kingdom,
the
reason
for
his
visits
being
to
obtain
medical
advice
for
himself
and
his
wife,
to
visit
relatives
and
the
graves
of
his
parents,
to
take
part
in
certain
Jewish
religious
observances
and
to
deal
with
his
Income
Tax
affairs.
In
January,
1925,
he
leased
a
flat
abroad
and
expected
to
continue
to
make
visits
to
the
United
Kingdom
though
not
to
such
an
extent
as
in
the
past.
The
appellant
contended
that
for
the
years
1920-21
to
1924-25
he
was
neither
resident
nor
ordinarily
resident
in
the
United
Kingdom
and
that
he
was
entitled
to
certain
exemptions
in
consequence
thereof.
The
Special
Commissioners
came
to
the
conclusion
that
he
was
resident
and
ordinarily
resident
in
the
United
Kingdom
in
the
years
in
question
and
the
Courts
refused
to
reverse
this
conclusion.
Rowlatt,
J.
dismissed
the
appeal
and
both
the
Court
of
Appeal
and
the
House
of
Lords
unanimously
agreed
with
his
judgment
in
so
doing.
At
page
493,
Rowlatt,
J.
said:
"‘Now
it
seems
to
me
what
the
phrase
"‘ordinary
residence”
means
is
this:
I
think
that
‘
4
ordinary”
does
not
mean
preponderating,
I
think
it
means
ordinary
in
the
sense
that
it
is
habitual
in
the
ordinary
course
of
a
man’s
life,
and
I
think
a
man
is
ordinarily
resident
in
the
United
Kingdom
when
the
ordinary
course
of
his
life
is
such
that
it
discloses
a
residence
in
the
United
Kingdom
and
it
might
disclose
a
residence
elsewhere
at
the
same
time.
Therefore,
I
think,
as
has
been
thought
in
Scotland,
that
a
man
can
have
two
ordinary
residences,
not
because
he
commonly
is
to
be
found
at
those
places,
but
because
the
ordinary
course
of
his
life
is
such
that
he
acquires
the
attribute
of
residence
at
those
two
places.”
In
the
House
of
Lords,
Viscount
Cave,
L.C.
said,
at
page
506:
“‘The
suggestion
that
in
order
to
determine
whether
a
man
ordinarily
resides
in
this
country
you
must
count
the
days
which
he
spends
here
and
those
which
he
spends
elsewhere,
and
that
it
is
only
if
in
any
year
the
former
are
more
numerous
than
the
latter
that
he
can
be
held
to
be
ordinarily
resident
here
appears
to
me
to
be
without
substance.
And
at
page
59,
Lord
Warrington
of
Clyffe
made
this
important
statement
:
“I
do
not
attempt
to
give
any
definition
of
the
word
"resident’.
In
my
opinion
it
has
no
technical
or
special
meaning
for
the
purposes
of
the
Income
Tax
Act.
"
Ordinarily
resident’
also
seems
to
me
to
have
no
such
technical
or
special
meaning.
In
particular
it
is
in
my
opinion
impossible
to
restrict
its
connotation
to
its
duration.
.
.
.
If
it
has
any
definite
meaning
I
should
say
it
means
according
to
the
way
in
which
a
man’s
life
is
usually
ordered.”
It
is,
I
think,
settled
that
the
question
of.
Whether
a
person
is
ordinarily
resident
in
one
country
or
in
another
cannot
be
determined
solely
by
the
number
of
days
that
he
spends
in-
each;
he
may
be
ordinarily
resident
in
both
if
his
stay
in
each
is
substantial
and
habitual
and
in
the
normal
and
ordinary
course
of
his
routine
of
life.
The
last
important
United
Kingdom
case
is
Lysaght
v.
The
Commissioners
of
Inland
Revenue
(1928),
13
T.C.
511.
In
that
case
the
appellant
until
1919
lived
in
England
where
he
was
engaged
in
business
as
director
and
general
manager
of.
a
company.
In
that
year
he
partially
retired
but
retained
the
post
of
advisory
director;
he
sold
his
English
residence
and
his
family
went
to
live
permanently
in
Ireland.
He
himself
went
to
Australia
in
1919
for
the
company,
and
on
his
return
took
a
furnished
house
in
Somerset
going
backwards
and
forwards
to
Ireland
until
1920,
when
he
went
to
reside
with
his
family
in
Ireland.
Since
then
he
had
no
definite
place
of
abode
in
England.
He
however
came
every
month
to
directors’
meetings
in
England
Where
he
remained
011
the
company’s
business
for
about
a
week
each
time,
staying
either
at
hotels
or
at
his
brother’s
house.
The
total
number
of
days
spent
in
England
for
the
three
years
ended
April
5,
1923,
April
5,
1924,
and
April
5,
1925,
were
101,
94
and
84
respectively,
while
he
spent
48
days
there
in
the
period
from
April
5,
1925,
to
September
25,
1925.
He
owned
a
small
three
acre
field
in
England
which
he
was
anxious
to
sell,
he
had
no
business
activities
in
Ireland
save
the
management
of
his
estate,
his
main
banking
account
was
in
Ireland
although
he
had
a
small
account
in
Bristol,
and
the
registered
address
of
his
various
securities
was
in
Ireland.
The
appellant
contended
that
for
the
years
1922-23
and
1923-24
he
was
neither
resident
nor
ordinarily
resident
in
the
United
Kingdom
and
was
entitled
to
the
exemptions
which
such
a
status
would
give
him.
The
Special
Commissioners
decided
that
his
claims
for
exemption
failed
and
this
conclusion
was
finally
sustained
by
the
House
of
Lords.
Rowlatt,
J.
felt
that
he
could
not
differ
from
the
Commissioners
in
their
finding
that
the
appellant
was
both
resident
and
ordinarily
resident
in
the
United
Kingdom
for
each
of
the
two
years
in
dispute
and
dismissed
the
appeal.
The
Court
of
Appeal
reversed
this
judgment,
Lawrence,
L.J.
dissenting,
but
it
was
restored
by
the
House
of
Lords,
Viscount
Cave,
L.C.
dissenting.
The
Lysaght
Case
(supra)
is
important
for
a
number
of
reasons.
In
the
first
place,
it
shows
how
far,
on
the
facts,
the
authorities
in
the
United
Kingdom
have
gone
in
finding
that
a
person
is
resident
or
ordinarily
resident
in
the
United
Kingdom.
Then,
it
clearly
establishes
that
a
person
may
reside
in
a
country,
not
as
a
matter
of
free
Choice
on
his
part,
but
because
he
is
compelled
to
do
so.
At
page
535,
Lord
Buckmaster
dealt
with
this
question
and
also
the
term
“ordinarily
resident”.
He
said:
“it
would
appear
that
the
element
of
choice
is
regarded
by
the
Court
of
Appeal
as
a
factor
of
great,
if
not
of
final,
consequence
in
determining
residence.
In
my
opinion
this
reasoning
is
not
sound.
A
man
might
well
be
compelled
to
reside
here
completely
against
his
will;”
and
later
:
“if
residence
be
once
established
“ordinarily
resident”
means
in
my
opinion
no
more
than
that
the
residence
is
not
casual
and
uncertain
but
that
the
person
held
to
reside
does
so
in
the
ordinary
course
of
his
life.”
The
real
importance
of
the
case,
however,
lies
in
the
fact
that
it
finally
established
that
the
question
whether
a
person
is
resident
or
ordinarily
resident
in
the
United
Kingdom
within
the
meaning
of
the
Income
Tax
Acts
of
that
country
is
a
question
of
fact.
It
seems
to
have
been
assumed
in
the
earlier
cases
that
it
was
a
question
of
law
to
be
applied
to
the
facts
of
the
case
in
question.
In
Reid
v.
The
Commissioners
of
Inland
Revenue
(supra),
the
Lord
President
(Clyde)
pointed
out
the
difficulties
involved
in
defining
the
terms.
At
page
678,
he
said:
“The
expression
"resident
in
the
United
Kingdom’
and
the
qualification
of
that
expression
implied
in
the
word
"
ordin
arily’
so
resident
are
just
about
as
wide
and
general
and
difficult
to
define
with
positive
precision
as
any
that
could
have
been
used.
The
result
is
to
make
the
questions
of
law
become
(as
it
were)
so
attenuated,
and
the
field
occupied
by
the
questions
of
law
become
so
enlarged,
as
to
make
it
difficult
to
say
that
a
decision
arrived
at
by
the
Commissioners
with
respect
to
a
particular
set
of
facts
held
proved
by
them,
is
wrong.
‘
‘
This
reasoning
implied
that
the
question
was
one
of
mixed
law
and
fact,
but
mainly
fact.
The
matter
came
to
a
head
in
the
Lysaght
Case
(supra).
Rowlatt,
J.
really
regarded
the
finding
of
the
Commissioners
as
one
of
fact.
In
the
Court
of
Appeal
a
contrary
view
prevailed.
Lord
Hanworth,
M.R.
held
at
page
519:
“The
meaning
of
"residence’
in
the
Income
Tax
Act
must
be
a
question
of
law;
.
.
.
this
Court
can
reconsider
the
case
upon
the
question
of
the
meaning
of
‘residence’
in
law,
and
ought
to
hold
that
the
facts
found
do
not
satisfy
that
meaning
and
constitute
residence.”
Sargant,
L.J.
also
agreed
that
the
conclusion
of
whether
a
man
is
resident
was
a
conclusion
of
law,
and
Lawrence,
L.J.,
although
dissenting
in
the
result,
was
of
the
same
view.
In
the
House
of
Lords
the
dispute
was
settled
by
the
majority
of
the
members
of
the
Court.
Lord
Buckmaster’s
judgment
was
read
by
Lord
Atkinson,
who
concurred
in
it.
At
page
533,
Lord
Buckmaster
is
reported
as
follows
:
"The
distinction
between
questions
of
fact
and
questions
of
law
is
difficult
to
define,
but
according
to
the
respondent
whether
a
man
is
resident
or
ordinarily
resident
here
must
always
be
a
question
of
law
dependent
upon
the
legal
construction
to
be
placed
upon
the
provisions
of
an
Act
of
Parliament.
1
find
myself
unable
to
accept
this
view.
It
may
be
true
that
the
word
‘reside’
or
‘residence’
in
other
Acts
may
have
special
meanings,
but
in
the
Income
Tax
Acts
it
is,
I
think,
used
in
its
common
sense
and
it
is
essentially
a
question
of
fact
whether
a
man
does
or
does
not
comply
with
its
meaning.
’
Lord
Warrington
of
Clyffe
took
the
same
view.
At
page
536,
he
said
:
“I
have
reluctantly
come
to
the
conclusion
that
it
is
now
settled
by
authority
that
the
question
of
residence
or
ordinary
residence
is
one
of
degree,
that
there
is
no
technical
or
special
meaning
attached
to
either
expression
for
the
purposes
of
the
Income
Tax
Act,
and
accordingly
a
decision
of
the
Commissioners
on
the
question
is
a
finding
of
fact.”
I
see
no
reason
why
the
same
view
should
not
be
taken
in
Canada
and
hold
that
the
terms
"residing’’
and
“ordinarily
resident”
in
section
9(a)
of
the
Income
War
Tax
Act
have
110
technical
or
special
meaning
and
that
the
question
whether
in
any
year
a
person
was
“residing
or
ordinarily
resident
in
Canada”
within
the
meaning
of
the
section
is
a
question
of
fact.
It
should,
perhaps,
be
noted
that
the
determination
of
this
question
does
not
assume
the
same
importance
in
Canada
as
it
does
in
the
United
Kingdom,
where
there
is
no
appeal
from
the
Special
Commissioners
except
on
questions
of
law
and
the
Courts
do
not
review
their
findings
of
fact.
In
Canada
the
situation
is
different
for
under
the
Income
War
Tax
Act
the
taxpayer
has
the
same
right
of
appeal,
unless
it
has
been
taken
away
by
some
specific
section
of
the
Act,
in
respect
of
questions
of
fact
as
he
has
in
respect
of
those
of
law.
As
I
view
the
facts,
they
present
no
difficulty
and
I
agree
with
the
conclusion
of
the
taxing
authorities
that
they
disclose
that
in
1940
the
taxpayer
was
residing
or
ordinarily
resident
in
Canada.
There
is
no
substance
in
the
appellant’s
contention
that
when
he
was
at
East
Riverside
he
was
merely
sojourning
there.
There
was
nothing
of
a
transient
character
about
his
stay
there.
He
lived
there
regularly
with
his
wife
and
family
and
his
staff
of
servants.
The
house
at
East
Riverside
was
a
permanent
one.
He
kept
a
housekeeper
and
his
wife
there
throughout
the
year
and
the
house
was
always
available
to
him
as
his
place
of
abode.
The
fact
that
he
chose
to
stay
there
only
while
the
weather
made
it
pleasant
to
play
golf
is
quite
immaterial
and
does
not
affect
the
question.
His
liability
to
income
tax
assessment
based
upon
residence
cannot
be
determined
by
the
fact
that
When
it
was
too
cold
to
play
golf
at
East
Riverside,
he
•chose
to
go
to
Pinehurst
to
play
golf
there.
Nor
is
the
question
of
residence
determined
by
the
number
of
days
spent
at
East
Riverside.
The
regular
and
usual
relationship
implied
in
the
term
“residing”
is
present
in
this
case.
He
stayed
at
East
Riverside
during
a
substantial
part
of
each
year,
and
his
stay
was
habitual.
Moreover
he
resided
at
East
Riverside
in
the
ordinary
course
of
his
life.
There
was
nothing
of
an
unusual
or
casual
character
about
it.
He
lived
and
played
there
as
long
as
it
suited
his
pleasure
to
do
so.*
His
residence
at
East
Riverside
was
in
the
course
of
the
regular,
normal
and
usual
routine
of
his
life.
In
my
opinion
the
facts
are
conclusive
that
in
1940
the
appellant
was
both
residing
and
ordinarily
resident
in
Canada
within
the
meaning
of
section
9(a)
of
the
Act
and
I
so
find.
Section
9(b)
has
nothing
to
do
with
the
matter.
That
being
so,
the
only
question
that
remains
is
the
meaning
of
the
words
"‘during
such
year’’
in
section
9(a)
of
the
Act.
The
word
‘‘during’’
may
have
two
meanings,
one
being
^throughout
the
whole
continuance
of’’
and
the
other
"‘in
the
course
of’’.
It
was
contended
on
behalf
of
the
appellant
that
the
term
must
be
given
the
former
meaning
and
that,
consequently,
the
appellant
was
not
liable
even
if
he
was
residing
or
ordinarily
resident
in
Canada,
since
such
residence
was
not
throughout
the
whole
continuance
of
the
year.
While
it
is
established
that
a
taxing
Act
must
be
construed
strictly,
this
does
not
mean
that
the
canons
of
construction
to
be
applied
to
it
should
be
different
from
those
applicable
to
any
other
Act.
In
all
cases
the
true
intent
of
the
Act
must
be
ascertained.
It
may
perhaps
be
noted
that
the
words
during
such
year’’
were
not
in
the
Act
prior
to
the
Revised
Statutes
of
Canada,
1927,
but
were
inserted
by
the
Commissioners
in
charge
of
the
Revision.
It
is,
I
think,
clear
that
they
are
referable
to
the
words
"during
the
preceding
year’’
in
the
earlier
part
of
the
section
and
were
meant
to
make
certain
that
the
assessment
upon
income
should
be
for
the
same
year
as
that
of
the
residence.
That
was,
I
think,
the
purpose
of
inserting
the
words.
They
were
intended
to
indicate
the
year
of
the
incidence
of
liability
to
assessment,
not
to
make
any
change
in
its
nature
or
extent.
Ordinarily,
a
word
is
used
in
the
same
sense
wherever
it
appears
in
an
Act.
In
that
view,
it
would
be
as
reasonable
to
contend
that
there
should
be
no
liability
to
assessment
upon
income
in
a
case
where
it
was
received
only
in
the
course
of
a
year
and
not
during
the
whole
continuance
of
it
as
to
advance
the
contention
put
forward
by
the
appellant.
Section
9
clearly
intended
to
draw
a
distinction
between
residents
and
sojourners,
the
former
being
subject
to
tax
apart
from
any
factor
of
time,
but
the
latter
being
liable
only
if
their
sojourn
exceeded
a
certain
number
of
days.
The
adoption
of
the
appellant’s
contention
would
not
only
import
into
the
terms
"‘residing''
and
‘ordinarily
resident”
the
necessity
of
continuous
physical
presence,
a
connotation
which
they
do
not
carry,
but
would
open
the
door
to
‘Wholesale
tax
evasion
and
make
the
section
largely
nugatory
;
the
sojourner
for
183
days
would
be
subject
to
tax,
but
a
resident
for
a
much
longer
period
would
be
free;
indeed,
he
would
escape
liability
altogether
if
he
took
up
residence
outside
of
Canada
for
even
a
small
portion
of
the
year.
This
would
be
an
absurd
result.
It
is
well
settled
that
when
a
word
may
have
two
meanings
it
should
be
read
with
reference
to
its
context
and
the
Court
should
adopt
that
meaning
which
is
in
accord
with
the
object
of
the
Act
and
reject
the
one
that
would
render
the
Act
nugatory
or
lead
to
absurd
results.
In
my
view,
the
words
"
"
during
such
year’’
in
section
9(a)
mean
merely
‘‘in
the
course
of,
or
in
such
year’’.
In
1942
the
words
were
changed
to
read
44
at
any
time
in
such
year’’.
The
change
removed
all
possibility
of
ambiguity
but
was,
I
think,
merely
declaratory
of
what
was
always
the
true
intendment
of
the
previous
words.
The
appellant’s
contentions
in
this
appeal
are
quite
untenable.
The
surprising
thing
is
that
the
taxing
authorities
did
not
catch
up
with
him
sooner.
The
appeal
is
dismissed
with
costs.
Judgment
accordingly.