Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CRA.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.
Principal Issues: Whether the time during which a person cohabiting with a taxpayer for five days per week can be included in applying the twelve-month duration test for the purposes of determining whether a person is a common law partner of the taxpayer.
Position: General comments
Reasons: It is a question of fact whether at any particular time a person cohabits in a conjugal relationship with the taxpayer. The fact that for a period of time during a twelve-month period a person was only present in the house five days per week, would not in and of itself, exclude that period in applying the twelve-month duration test.
XXXXXXXXXX 2007-024261
Tim Fitzgerald, CGA
September 27, 2007
Dear XXXXXXXXXX:
Re: Common Law Partner
This is further to your letter of June 28, 2007 wherein you requested our views in respect of the definition of common law partner for income tax purposes.
From your letter, we understand the facts to be as follows:
1. The taxpayer, Ms. A has been divorced for XXXXXXXXXX years from her former spouse, Mr. A.
2. Mr. and Ms. A have XXXXXXXXXX children who now live with their mother, Ms. A.
3. Commencing in early XXXXXXXXXX and up to XXXXXXXXXX, Mr. B stayed at the residence of Ms. A five days per week.
4. On XXXXXXXXXX, Mr. B moved in to Ms. A's residence on a permanent basis, living together with Ms. A. in a conjugal relationship. The children of Mr. A. and Ms. A. now live with Ms. A and Mr. B.
5. Mr. A continues to pay monthly child support to Ms. A.
6. Mr. B has not adopted Ms. A's children.
You would like to know whether Mr. B and Ms. A would be considered common law partners for the purposes of Ms. A's XXXXXXXXXX income tax return.
The particular situation outlined in your letter is a factual one, involving specific taxpayers. As explained in Information Circular 70-6R5, it is not this Directorate's practice to comment on proposed transactions involving specific taxpayers other than in the form of an Advance Income Tax Ruling. Given that your situation involves specific taxpayers and completed transactions, you should submit all relevant facts and documentation to the local tax services office for their views. However, we are prepared to offer the following general comments, which may be of assistance. Subsection 248(1) of the Act, as proposed for amendment under Bill C-33 for the 2001 and subsequent years, defines the term "common-law partner" in respect of a taxpayer to include at a particular time:
(a) a person who at that time cohabits in a conjugal relationship with the taxpayer and has done so throughout the twelve-month period that ends at that particular time, and
(b) a person who at that time cohabits in a conjugal relationship with the taxpayer and is the parent of a child of the taxpayer for one of the following reasons:
? the person is the natural or adoptive parent of the child; or
? the child is wholly dependant on the person for support and the person has, in law or in fact, the custody and control of the child (or did immediately before the child turned 19).
Under the definition of common-law partner, once a taxpayer and another individual have cohabited in a conjugal relationship, they will be deemed to cohabit in a conjugal relationship at any future particular time unless, because of a breakdown of their conjugal relationship, they were living separate and apart at that particular time and for a period of at least 90 days that includes that time.
Where a person cohabiting with a taxpayer fully meets either the twelve-month duration test described in (a) above or the parent test described in (b) above, that person would be considered a common-law partner of the taxpayer.
As we understand it, the parent test described in (b) above is of no concern to you. Therefore we shall limit our comments to the twelve-month duration test described in (a) above. Your concern is whether the XXXXXXXXXX months from XXXXXXXXXX up to XXXXXXXXXX during which Mr. B was only present in the house five days per week, would be included for the purposes of applying the twelve-month duration test.
The duration test described in (a) above is not satisfied where the person simply "stays" with a taxpayer. Rather the test requires that the person live with the taxpayer in a conjugal relationship. Whether or not two persons are living together in a conjugal relationship is a question of fact. We would mention that where a person who lives with a taxpayer is routinely absent from the home for part of a week, that fact in and of itself would not preclude a finding that throughout each such week where this occurred, the person was living in a conjugal relationship with the taxpayer. Therefore, the fact that Mr. B may have been routinely absent for two days per week over a period of some XXXXXXXXXX months or so over the course of the twelve-month test period would not, in and of itself, preclude a finding that Mr. B cohabited in a conjugal relationship with Ms. A over the entire twelve-month period. As stated above, whether or not Mr. B and Ms. A cohabited in a conjugal relationship at any particular time is a question of fact.
We trust this information is of assistance.
Sandy Parnanzone
For Director,
Business and Partnerships Division
Income Tax Rulings Directorate
Legislative Policy & Regulatory Affairs Branch
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