Asner v. The Queen, docket 2001-3548-IT-I (Informal Procedure)

Date: 20020506

Docket: 2001-3548-IT-I

BETWEEN:

EVA ASNER,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasonsfor Judgment

(Delivered orally at Toronto, Ontario on March 15, 2002 and subsequently edited as to form)

Bonner, T.C.J.

[1]            I am of the opinion, based on your evidence, that firstly your mother-in-law is a person deemed by section 250(1) of the Income Tax Act to have been resident in Canada throughout the 1999 taxation year because, at the very least, she sojourned here for a period greater than 183 days. That standing alone is enough to decide the case in your favour.

[2]            However, the evidence goes much further than that. In my opinion your mother-in-law was a resident of Canada throughout the 1999 taxation year within the ordinary meaning of the word resident. Residence is a question of ties of a greater or lesser degree of permanence.

[3]            I accept your evidence as entirely credible and that evidence has indicated that your mother-in-law came here in 1995, that she stayed in this country with the Appellant and the Appellant's husband until 1997 when Mrs. Asner's husband died. She returned to Poland for a brief interval to tidy up and terminate her connections and her affairs in that country. She obtained a death certificate required to change the right to occupy the apartment which she and her husband had lived in to her son's name. She has only a very technical and tenuous connection with Poland arising from a bank account in her name in that country. But the fact of the matter is the bank account appears to belong to Mrs. Asner's son. She returned to Canada in May of 1998 and has remained in Canada ever since.

[4]            While she was in Poland I think it is significant that the bedroom which she had occupied in her son and daughter-in-law's Toronto area home was kept and treated as hers. She resumed her occupation of the room following her sojourn in Poland and she has remained here since.

[5]            In my view it has been established quite conclusively that Ms. Asner has been a resident of Canada since her return from Poland in May of 1998.

[6]            For the foregoing reasons the appeal will be allowed with costs if any, and the assessment referred back to the Minister for reassessment accordingly.

[7]            You will get a formal judgment from the Court in due course that just simply says the appeal is allowed and the Minister will be advised to reassess to allow you the tax credit.

Signed at Toronto, Ontario, this 6th day of May 2002.

"Michael J. Bonner"

T.C.J.

COURT FILE NO.:                                                 2001-3548(IT)I

STYLE OF CAUSE:                                               Eva Asner and H.M.Q.

PLACE OF HEARING:                                         Toronto, Ontario

DATE OF HEARING:                                           March 15, 2002

REASONS FOR JUDGMENT BY:      The Honourable Judge M.J. Bonner

DATE OF JUDGMENT:                                       March 22, 2002

DATE OF REASONS

       FOR JUDGMENT:                          May 6, 2002

APPEARANCES:

For the Appellant:                                                 The Appellant herself

Counsel for the Respondent:              Eric Sherbert

COUNSEL OF RECORD:

For the Appellant:                

Name:                               

Firm:                 

For the Respondent:                             Morris Rosenberg

                                                                                Deputy Attorney General of Canada

                                                                                                Ottawa, Canada