Roland
St-Onge:—In
this
appeal,
the
parties
have
agreed
to
file
an
agreed
statement
of
facts
and
to
send
written
submissions.
The
agreed
statement
of
facts
reads
as
follows:
1.
the
appellant
was
a
member
of
the
Royal
Canadian
Air
Force
and
subsequently
the
Canadian
Forces
for
a
period
of
27
years,
ending
with
his
retirement
on
October
30,
1976.
2.
Prior
to
commencing
retirement
leave
on
or
before
July
22,1976,
he
was
serving
at
Royal
Roads
Military
College,
in
the
Municipality
of
Esquimalt,
BC.
3.
While
serving
with
the
Canadian
Forces
the
appellant
was
paid
by
the
Directorate
of
Pay
and
Services,
Canadian
Forces
Headquarters,
Ottawa,
Ontario.
4.
On
commencing
retirement
leave,
he
was
not
required
to
report
for
work
at
any
establishment
of
the
Canadian
Forces.
5.
Prior
to
July
22,1976,
while
on
retirement
leave,
he
entered
the
United
States
of
America
as
a
landed
immigrant,
and
took
up
lodging
in
the
Ramada
Inn,
Monterey,
California.
7.
On
August
30,
1976,
he
purchased
a
home
at
6
Somerset
Rise,
Monterey,
California,
in
which
he
took
up
residence.
8.
The
appellant
used
funds
withdrawn
from
a
registered
home
ownership
savings
plan
to
purchase
the
said
home
and/or
furnishings.
9.
He
became
employed
by
Lockheed-California
Company
in
the
City
of
Burbank,
California
on
12
Nov
76.
10.
The
distance
between
Victoria
and
Ottawa
is
approximately
2979
by
the
most
direct
route;
the
distance
between
Monterey
and
Ottawa
is
approximately
3167
miles
by
the
most
direct
route.
By
virtue
of
paragraph
4
of
his
submission,
the
appellant
conceded
his
appeal
upon
the
subject
of
his
RHOSP
funds.
Indeed,
subsection
146.2(2)
of
the
Income
Tax
Act
requires
that
the
“owner-occupied
home’’
be
situated
in
Canada
and,
according
to
the
admitted
facts,
the
appellant
acquired
his
house
in
Monterey,
California,
USA.
Consequently,
he
cannot
enjoy
the
benefit
of
the
said
section.
As
to
the
second
point
with
respect
to
moving
expenses,
the
same
principle
applies.
According
to
paragraph
62(1)(b),
and
I
quote
in
part:
Where
a
taxpayer
(b)
.
.
.
.
has
moved
from
the
residence
in
Canada
at
which,
before
the
move,
he
ordinarily
resided
on
ordinary
working
days
.
.
.
.
to
a
residence
“in
Canada"
at
which,
after
the
move,
he
ordinarily
so
resided.
According
to
the
admitted
facts,
the
appellant
does
not
comply
with
the
above
section
for
the
following
reasons:
(1)
his
new
residence
was
not
in
Canada;
(2)
he
did
not
move
from
Victoria
to
Monterey
because
he
had
become
employed
in
Ottawa
either
in
fact
or
by
definition;
(3)
Monterey
is
further
from
Ottawa
than
Victoria
is
from
Ottawa;
(4)
he
did
not,
for
purposes
of
subsection
62(1)
as
varied
by
paragraph
63(1
)(b),
move
his
residence
because
of
having
ceased
to
be
employed
at
one
location
and
commenced
to
be
employed
at
another
location.
In
order
to
benefit
from
an
exempting
provision,
a
taxpayer
must
fall
within
the
four
corners
of
the
said
provision.
I
refer
to
the
following
case:
W
A
Sheaffer
Pen
Company
of
Canada
Limited
v
MNR,
[1953]
CTC
345;
53
DTC
1223.
Consequently
the
appeal
is
dismissed.
Appeal
dismissed.
Email this Content