5 December 1997 External T.I. 9715045 - RESIDENCY

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.

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the Department.

Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle du ministère.

971504
XXXXXXXXXX David R. Senécal

Attention: XXXXXXXXXX

December 5, 1997

Dear Sirs/Mesdames:

Re: Residency of an individual for purposes of the Income Tax Act (the "Act")

This is in reply to your letter of May 28, 1997, wherein you ask our views regarding the residency status for income tax purposes of an elderly individual on an extended visit to Canada.

Based on the information provided in your letter, we are of the view that your enquiry does not relate to a hypothetical situation. Rather, you appear to have outlined a factual situation which has already taken place and which involves a specific taxpayer. As indicated in Information Circular 70-6R3, written enquiries of this nature should be directed to the appropriate Tax Services Office of Revenue Canada, as responsibility for these matters lies with such Office. However, we provide the following general comments which may or may not apply to your client and which, in accordance with the above-mentioned Information Circular, are not binding on the Department.

The determination of an individual’s residence is a question of fact and that determination can only be made after an analysis of all of those facts . Having said this, in a situation where an individual’s stay in Canada is sponsored by relatives here and that individual stays with those relatives for an extended and indeterminate period of time, it is quite possible that the individual has settled into a routine of life in Canada which is consistent with the routine of a resident of this country. In other words, if Canada is not simply a place where that individual unusually, casually or intermittently stays and that person’s visit here was not for a definite purpose which may promptly be accomplished, it is quite likely that the facts will show that his or her routine or pattern of life during the time he or she spends in Canada is more indicative of someone who is a resident here than of someone who is simply a sojourner. In this regard, it is important to note that the 183 day rule regarding deemed residence as provided for in paragraph 250(1)(a) of the Income Tax Act is of relevance only in the case of sojourners and is of no relevance in the case of a factual resident other than the fact that the greater the length of time a person spends in Canada the more likely that that person will have established sufficient ties here to considered as being a factual resident here.

For instance, in a situation such as the one described in your letter, where the individual has stayed 36 consecutive months with relatives in Canada, we are of the view that the person would be a resident here on a factual rather than on a deemed basis.

We trust that our comments will be of assistance to you.

Yours truly,

for Director
Reorganizations and International Division
Income Tax Rulings & Interpretations Directorate
Policy and Legislation Branch