Section 2

Subsection 2(1) - Tax payable by persons resident in Canada

Commentary

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Cases

Fundy Settlement v. Canada, 2012 DTC 5063 [at 6881], 2012 SCC 14, [2012] 1 S.C.R. 520, aff'g sub nom St. Michael Trust Corp. v. The Queen, 2010 DTC 5189 [at 7361], 2010 FCA 309, aff'g sub nom Garron v. The Queen, 2009 DTC 1568, 2009 TCC 450

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(1) trust residence that of Canadian beneficiaries 158

Nedelcu v. Canada, 2010 DTC 5102 [at 6942], 2010 FCA 156

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Glow v. The Queen, 92 DTC 6467 (FCTD)

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Oceanspan Carriers Ltd. v. The Queen, 87 DTC 5102, [1987] 1 CTC 210 (FCA)

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Capitol Life Insurance Co. v. The Queen, 84 DTC 6087, [1984] CTC 141 (FCTD), aff'd 86 DTC 6164, [1986] 1 CTC 388 (FCA)

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The Queen v. Sherwood, 78 DTC 6470, [1978] CTC 713 (FCTD)

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Thibodeau Family Trust v. The Queen, 78 DTC 6376, [1978] CTC 539 (FCTD)

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The Queen v. Reeder, 75 DTC 5160, [1975] CTC 256 (FCTD)

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Thomson v. Minister of National Revenue, 2 DTC 812, [1946] S.C.R. 209

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See Also

Sampson v British Columbia, 2018 BCSC 1503

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Tax Topics - Income Tax Regulations - Regulation 2607 Calgary executive with a large B.C. home had his “principal place of residence” in B.C. 305

Fono v. Agence du revenu du Québec, 2018 QCCQ 10534

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Rousseau v. Agence du revenu du Québec, 2018 QCCQ 7340

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Tax Topics - Income Tax Act - Section 162 - Subsection 162(1) taxpayer established that failure to file Quebec returns was based on good faith reliance on his accountant’s view of his Alberta residency 139
Tax Topics - Income Tax Act - Section 152 - Subsection 152(4.2) Quebec Minister advised to take steps under intergovernmental agreement to avoid double taxation 228

Landbouwbedrijf Backx B.V. v. The Queen, 2018 TCC 142

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Tax Topics - Income Tax Act - Section 128.1 - Subsection 128.1(1) - Paragraph 128.1(1)(c) no application of s. 128.1(1)(c) as central management and control had been in Canada from the time of the investment 270
Tax Topics - Treaties - Income Tax Conventions - Article 4 Netherlands corporation with central management and control in Canada was not resident in the Netherlands for Treaty purposes 361

895410 Alberta Ltd., fiduciaire de la Fiducie Haifa v. Agence du revenu du Québec, 2018 QCCQ 2581

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Boettger v. Agence du revenu du Québec, 2017 QCCA 1670

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Development Securities (No. 9) Ltd & Ors v HMRC, [2017] UKFTT 565 (TC)

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Robinson v. Agence du Revenu du Québec, 2016 QCCQ 11066

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Bywater Investments Ltd. v Commissioner of Taxation; Hua Wang Bank Berhad v Commissioner of Taxation, [2016] HCA 45

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Herman Grad 2000 Family Trust v. Minister of Revenue, 2016 ONSC 2402

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Bywater Investments Ltd. v. Commissioner of Taxation, [2015] FCAFC 176, aff’g sub nom. Hua Wang Bank Berhad v. Commissioner of Taxation [2014] FCA 1392, aff'd [2016] HCA [austlii.edu.au]

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Boettger, trustee of Nancy Smith Spousal Trust v. ARC, 2015 QCCQ 7517, aff'd 2017 QCCA 1670

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Discovery Trust v. MNR, 2015 CanLII 34016 (NL SCTD)

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Bower v. The Queen, 2013 DTC 1152 [at 854], 2013 TCC 183 (Informal Procedure)

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Dysert v. The Queen, 2013 DTC 1070 [at 373], 2013 TCC 57

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Edwards v. The Queen, 2013 DTC 1025 [at 124], 2012 TCC 430 (Informal Procedure)

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Mullen v. The Queen, 2012 DTC 1154 [at 3358], 2012 TCC 139 (Informal Procedure)

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Daruwala v. The Queen, 2012 TCC 257 (Informal Procedure)

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Tax Topics - Excise Tax Act - Section 191 - Subsection 191(1) informal arrangement included 156

Vegh v. The Queen, 2012 DTC 1131 [at 3160], 2012 TCC 95 (Informal Procedure)

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Snow v. The Queen, 2012 DTC 1116 [at 3087], 2012 TCC 78 (Informal Procedure)

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Fatima v. The Queen, 2012 DTC 1087 [at 2923], 2012 TCC 49 (Informal Procedure)

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R (Davies) v. Revenue and Customs Commissioners, [2012] 1 All ER 1048, [2011] UKSC 47

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Tax Topics - Income Tax Act - Section 152 - Subsection 152(1) concessions for non-collection with overall revenue enhancement objective 211

Hamel v. The Queen, 2012 DTC 1004 [at 2518], 2011 TCC 357

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Perlman v. The Queen, 2011 DTC 1045 [at 199], 2010 TCC 658

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Charafeddine v. The Queen, 2010 DTC 1281 [at 3953], 2010 TCC 417 (Informal Procedure)

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Tax Topics - Income Tax Act - Section 122.6 - Eligible Individual children's being abducted and held in foreign country by estranged spouse did not disrupt CCTB eligibility 213

Bensouilah v. The Queen, 2010 DTC 1018 [at 2624], 2009 TCC 440 (Informal Procedure)

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1143132 Ontario Limited v. The Queen, 2009 DTC 1312, 2009 TCC 477

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Lingle v. The Queen, 2009 DTC 1705, 2009 TCC 435, aff'd 2010 DTC 5100 [at 6932], 2010 FCA 152

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Tax Topics - Treaties - Income Tax Conventions - Article 4 229

Minin v. The Queen, 2008 DTC 4463, 2008 TCC 429

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Filipek v. The Queen, 2008 DTC 4139, 2008 TCC 351

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Mullen v. The Queen, 2008 DTC 3892, 2008 TCC 294 (Informal Procedure)

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Johnson v. The Queen, 2007 DTC 1022, 2007 TCC 288

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Barton v. The Queen, 2007 DTC 712, 2007 TCC 222

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Laurin v. The Queen, 2007 DTC 236, 2006 TCC 634

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Hauser v. The Queen, 2005 DTC 1151, 2005 TCC 492, aff'd 2006 DTC 6447, 2006 FCA 216

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Yoon v. The Queen, 2005 DTC 1109, 2005 TCC 366

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Wood v. Holden (2005), 7 ITLR 725, [2005] EWHC 547 (Ch. D)

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Bujnowski v. The Queen, 2005 DTC 247, 2005 TCC 90 (Informal Procedure)

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Gaudreau v. The Queen, 2005 DTC 66, 2004 TCC 840, aff'd 2005 DTC 5702, 2005 FCA 388

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Snow v. The Queen, 2004 DTC 2784, 2004 TCC 381 (Informal Procedure)

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Revah v. The Queen, 2004 DTC 2735, 2004 TCC 312

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Nicholson v. The Queen, 2004 DTC 2013, 2003 TCC 862

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Allchin v. The Queen, 2003 DTC 935 (TCC)

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Kadrie v. The Queen, 2001 DTC 967 (TCC)

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Bell v. Canada, 2000 DTC 6365, 2008 FCA 51 (FCA)

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Shih v. The Queen, 2000 DTC 2072 (TCC)

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Boston v. The Queen, 98 DTC 1124 (TCC)

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Endres v. The Queen, 98 DTC 1101 (TCC)

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Locations of other summaries Wordcount
Tax Topics - Treaties - Income Tax Conventions - Article 4 141

Fisher v. The Queen, 95 DTC 841 (TCC)

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Wassick v. MNR, 95 DTC 19 (TCC)

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Re Koo, [1993] 1 F.C. 286, 1992 CanLII 2417 (T.D.)

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Padmore v. IRC, [1989] BTC 221 (C.A.)

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Dawson v. C.I.R., [1989] BTC 200, [1989] UKHL TC_62_301 (HL)

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Reed v. Clark, [1985] BTC 224 (HC)

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Levene v. IRC, [1928] AC 217, [1928] All ER 746

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Administrative Policy

22 March 2018 Internal T.I. 2018-0738201I7 - Residency of TFSA trust

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 146.2 - Subsection 146.2(6) investment trading decisions by non-resdient holder did not make the TFSA trust a non-resident 106

18 October 2016 External T.I. 2015-0608051E5 F - Emigration of a trust

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Tax Topics - Income Tax Act - Section 220 - Subsection 220(4.5) emigrating trust can elect to defer payment of the exit tax 185

24 November 2015 CTF Annual Roundtable, Q.3

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26 January 2015 External T.I. 2014-0547501E5 - Certificates of residency and partnerships

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - 101-110 - Section 102 - Subsection 102(1) certification of Canadian partnership at request of authorized representative 81

15 December 2014 Internal T.I. 2012-0445361I7 F - Remboursement de frais de déménagement

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Words and Phrases
ordinarily reside
Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 6 - Subsection 6(1) - Paragraph 6(1)(a) reimbursement of moving expenses not a taxable benefit if such moving expenses otherwise deductible under s. 62 which, in the case of multiple moves, can turn on whether there is ordinary residence at each location 418
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Eligible Relocation expenses re selling a Canadian home after a 2nd relocation abroad are non-deductible if no ordinary residence at 1st location abroad 255

S6-F1-C1 - Residence of a Trust or Estate

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3 December 2013 TEI Roundtable, 2013-0510851C6 - 2013 TEI – Question 9: Tax residency certificates.

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11 July 2013 External T.I. 2013-0490591E5 F - Montant pour une personne à charge

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Tax Topics - Income Tax Act - Section 118 - Subsection 118(1) - Paragraph 118(1)(b) - Subparagraph 118(1)(b)(ii) conditions not satisfied where children did not live with non-supporting husband following separation 136
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Common-Law Partner can be in a conjugal relationship even if live in the same home for only half of each year 140

Certificate of residency

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17 October 2012 External T.I. 2012-0437691E5 - Factual Resident - Missionary

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5 October 2012 Roundtable, 2012-0451271C6 F - Residence of a trust

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30 October 2012 Ontario CTF Roundtable Q. 8, 2012-0462841C6 - Ontario CTF – Q8 Residency of a Trust

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4 January 2013 External T.I. 2012-0448681E5 - s. 116 req. of NR-estates per draft NRT legis.

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25 June 2012 External T.I. 2012-0446361E5 - Determination of residency Status

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8 June 2010 STEP National Roundtable Q. 15, 2010-0363111C6 - Residency of a Trust

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2004 Ruling 2004-0099651R3 - Migration to Canada / PUC Reduction

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2004 Miscellaneous 2004-0103111R3 - Foreign affiliates; indirect payment

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2004 Ruling 2004-0099651R3 - Migration to Canada / PUC Reduction

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19 July 1994 Memorandum 941315 (C.T.O. "Canadian Resident Status of U.S. Visa Holders (7576-1)")

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19 June 1992 Hong Kong Seminar, Q. A.1-A.3 (May 1993 Access Letter, p. 225)

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Tax Professionals Mini Round Table - Vancouver - Q. 16 (March 1993 Access Letter, p. 105)

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8 July 1992 T.I. 9210362 (January - February 1993 Access Letter, p. 5, ¶C2-017)

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27 September 1991 Memorandum (Tax Window, No. 10, p. 15, ¶1489)

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September 1991 Memorandum (Tax Window, No. 9, p. 23, ¶1457)

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IT-447 "Residence of a Trust or Estate

IT-221R2 "Determination of an Individual's Residence Status"

Certificate of residency "CRA cannot certify the residency of a partnership because partnerships are not considered resident; however, the individual partners of a partnership can ask for a certificate."

Articles

Brian Kearl, Carl Deeprose, "Leaving Canada's New High Tax Rate Regime: Considerations, Tips and Traps", 2016 Conference Report (Canadian Tax Foundation),32:1-24

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Joel A. Nitikman, "Central Management and Control and the Rule in Esquire Nominees: Where are we after Hua Wang Bank Berhad?", International Tax Planning, Federated Press, Vol. XX, No. 1, 2015, p. 1368.

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H. Michael Dolson, "Trust Residence After Garron: Provincial Considerations", Canadian Tax Journal, (2014) 62:3, 671-99.

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Kevyn Nightingale, "New Canadian Citizenship Rules (Bill C-24) and Tax", CCH Tax Topics, No. 2190, February 27, 2014, p. 1

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P. Bourgeois, L. Blanchette, "Income_Taxes.ca.com: The Internet, Electronic Commerce, and Taxes - Some Reflections, Part 2", 1997 Canadian Tax Journal, Vol. 45, No. 6, p. 1378.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 253 0

P. Bourgeois, L. Blanchette, "Income_Taxes.ca.com: The Internet, Electronic Commerce, and Taxes - Some Reflections, Part 1", 1997 Canadian Tax Journal, Vol. 45, No. 5, p. 1127.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 253 0

Oliver, "Company Residence - Four Cases", 1996 British Tax Review, No. 5, p. 505: Discussion of the clockwork residence theory.

Bowman, "Sophisticated Estate-Planning Techniques: Cross-Border Dimensions", 1993 Conference Report, c. 38: Discussion (at pp.16-17) of whether a Canadian-resident "protector" may cause a trust established outside Canada to be considered to be resident in Canada; and of the weight to be given to the jurisdiction of the governing law of the trust in determining the residence question.

Monteith, "The Problem of Foreseeable Return", Taxation of Executive Compensation and Retirement, December/January 1994, p. 851.

Kroft, "Jurisdiction to Tax: An Update", 1993 Corporate Management Tax Conference Report, c. 1.

Sheridan, "The Residence of Companies for Taxation Purposes", British Tax Review, 1990, No. 3, p. 78: Review of the U.K. case law on residence.

Green, "The Residence of Trusts for Income Tax Purposes", 21 Canadian Tax Journal, May-June 1983, p. 217.

Wosner, "Ordinary Residence, the Law and Practice", 1983 British Tax Review, p. 347.

Subsection 2(3) - Tax payable by non-resident persons

Forms

T4058 - Non-Residents and Income Tax - 2016

T1-NT12 - Residency information for tax administration agreements

Form T1248, Schedule D - Information about your residency status

NR74 - Determination of Residency Status (Entering Canada)

NR73 - Determination of residency status (leaving Canada)

Paragraph 2(3)(a)

See Also

Hewitt v. MNR, 89 DTC 451 (TCC)

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Administrative Policy

IT-168R3 "Athletes and Players Employed by Football, Hockey and Similar Clubs" under "Non-Residents"

Paragraph 2(3)(b)

Commentary

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Cases

Randall v. The Queen, 85 DTC 5208, [1985] CTC 268 (FCTD)

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Capitol Life Insurance Co. v. The Queen, 84 DTC 6087, [1984] CTC 141 (FCTD), aff'd 86 DTC 6164, [1986] 1 CTC 388 (FCA)

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Pullman v. The Queen, 83 DTC 5080, [1983] CTC 52 (FCTD)

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 253 - Paragraph 253(b) 39

Loeck v. The Queen, 82 DTC 6071, [1983] CTC 64 (FCA)

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Sudden Valley Inc. v. The Queen, 76 DTC 6178, [1976] CTC 775 (FCTD), aff'd 76 DTC 6448, [1976] CTC 775 (FCA)

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Tax Topics - Income Tax Act - Section 253 - Paragraph 253(b) 158

Sandhu v. The Queen, 80 DTC 6097, [1980] CTC 158 (FCTD)

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See Also

Gulf Offshore N.S. Limited v. The Queen, 2006 DTC 2705, 2006 TCC 246

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Tax Topics - Treaties - Income Tax Conventions - Article 5 182

AAi. FosterGrant of Canada Co. v. Canada (Commissioner of the Canada Customs and Revenue Agency), [2004] 3021 ETC, 2004 FCA 259

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Munich Reinsurance Co. (Canada Branch) v. The Queen, 2000 DTC 2009 (TCC)

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Arbutus Gardens Apartments Corp. v. The Queen, 98 DTC 1795 (TCC)

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Tax Topics - Income Tax Regulations - Regulation 805 apartment complex requiring significant property management generated business income 132

Valec S.A. v. The Queen, 98 DTC 1266 (TCC)

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GLS Leasco Inc. v. MNR, 86 DTC 1484 (TCC)

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Hull v. Wilson (1995), 128 DLR (4th) 403 (Alta. C.A.)

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Grocott v. The Queen, 95 DTC 0 (TCC)

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T.D.I. Hospitality Management Consultants Inc. v. Browne (1994), 117 DLR (4th) 289 (Man. C.A.)

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Étoile Immobililière S.A. v. MNR, 92 DTC 1984 (TCC)

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Lainiere de Roubaix F.A. v. Craftsman Distributors Inc., [1991] 5 WWR 217 (BCCA)

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The Queen v. London Life Insurance Co., 90 DTC 6001 (F.C.A)

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Hafton Properties Ltd. v. McHugh, [1987] BTC 18 (HCJ)

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Geigy (Canada) Ltd. v. Social Services Tax Commissioner, [1969] CTC 79 (BCSC)

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Firestone Tyre & Rubber Co. Ltd. v. Lewellin (1957), 37 TC 111 (HL)

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Tax Topics - Income Tax Act - Section 9 - Agency - Agency 34

Belfour v. Mace (1925), 13 TC 539 (CA)

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Weiss, Biheller & Brooks, Ltd. v. Farmer (1922), 8 TC 381 (CA)

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F.L. Smidth & Co. v. F. Greenwood (1921), 8 TC 200 (CA), aff'd 206 (HL)

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Linde Canadian Refrigerator Co. v. Saskatchewan Creamery Co. (1915), 51 SCR 400

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Grainger & Son v. Gough (1896), 3 TC 462 (HL)

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Administrative Policy

16 March 2018 Ruling 158124

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Tax Topics - Excise Tax Act - Section 240 - Subsection 240(1) USco’s use of a Canadian affiliate for substantial marketing support for web-delivered services did not constitute carrying on business in Canada 356
Tax Topics - Excise Tax Act - Schedules - Schedule VI - Part V - 5 zero-rating of marketing assistance provided by Canco to U.S. affiliate 186

27 November 2017 External T.I. 2017-0731441E5 - Interchange Canada and Business Number

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Tax Topics - Income Tax Act - Section 150 - Subsection 150(1) - Paragraph 150(1)(a) a non-resident corporation is carrying on business in Canada by virtue of being the legal employer of an employee seconded to Canada 163
Tax Topics - Income Tax Regulations - Regulation 102 - Subsection 102(1) NR company seconding employee to Canada subject to Reg. 102 withholding requirement but not EI or CPP 164
Tax Topics - Income Tax Regulations - Regulation 105 - Subsection 105(1) salary reimbursement payments made to seconding NR employer subject to withholding 107

9 February 2012 External T.I. 2008-0280941E5 F - Foreign sourced income - transportation

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Tax Topics - Income Tax Act - Section 4 - Subsection 4(1) - Paragraph 4(1)(b) s. 4(1)(b) generally applied on a jurisdictional basis 149
Tax Topics - Income Tax Act - Section 126 - Subsection 126(9) s. 4(1)(b) applied for s. 126(9) purposes 153
Tax Topics - Income Tax Act - Section 126 - Subsection 126(7) - Business-Income Tax NY franchise tax qualified as an income tax only if it was not based on non-income specified minimums 221

1999 Ruling 992060

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30 October 1997 External T.I. 9716735 - : Taxation of Non-Resident Partners

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Tax Topics - Income Tax Act - Section 212 - Subsection 212(13.1) - Paragraph 212(13.1)(b) withholding where non-resident partnership with Cdn partners 87

1997 Ruling 970492

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31 May 1993 Memorandum (Tax Window, No. 32, p. 15, ¶2613)

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Tax Topics - Treaties - Income Tax Conventions - Article 5 16

13 January 1993 Memorandum 923695 (November 1993 Access Letter, p. 487, ¶C2-019)

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85 C.R. - Q.20

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Tax Topics - Income Tax Act - Section 114 40

IT-420R3 "Non-Residents - Income Earned in Canada"

Articles

Susan McKilligan, "Carrying Business in Canada", International Tax, CCH Wolters Kluwer, No. 90, October 2016, p. 13

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Jack Bernstein, "Electronic Commerce", Tax Profile, Vol. 6, No. 5, May 2000, p. 51.

Michael P. Boyle, "The Emerging International Tax Environment for Electronic Commerce", Tax Management International Journal, Vol. 28, No. 6, 11 June 1999, p. 357.

Constantine Kyres, "Carrying on Business in Canada", 1995 Canadian Tax Journal, Vol. 45, No. 5, p. 1629.

V. Krishna, "International Income Taxation of Electronic Commerce", Canadian Current Tax, Vol. 9, No. 4, January 1999, p. 33.

Harris, "Developments in Asset-backed Financing: Tax Considerations", Business Vehicles, Vol. III, No. 3, 1997, p. 136

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Power, "The Taxation of Non-Resident Investment in Canadian Real Estate", 1989 Canadian Tax Journal, September-October issue, p. 1266