Marino v. The Queen, 2020 TCC 50 (Informal Procedure)
An individual with no connection to Canada paid a lot in tuition fees while in attendance at U.S. universities prior to 2012 then, on immigrating to Canada, claimed his purported unused tuition tax credits as a deduction from Canadian tax. Given that the tax credit provisions referred to an individual’s “taxation year,” the Crown successfully argued the Oceanspan principle that “a non-resident with no source of income in Canada, was not a ‘taxpayer’ and therefore did not have a taxation year” (para. 29). Monaghan J rejected the taxpayer’s position that s. 250.1(a) had the effect of deeming any non-resident to have a taxation year - and instead indicated (at para. 38) that this provision only “applies where a non-resident must have a taxation year if a provision of the Act is to operate as it is intended to operate, including in respect of another taxpayer,” for example, respecting a non-resident trust with a resident beneficiary recognizing income under s. 104(13) based on when that trust has a taxation year end. In this regard, she further stated (at para. 38):
[P]aragraph 250.1(a) applies only to those non-residents for whom a taxation year must be identified for a purpose mandated by the Act (including for the purpose identified in paragraph 250.1(b)) but who are not taxpayers and therefore would not otherwise have a taxation year for purposes of the Act. … It does not operate to give every non-resident a taxation year thereby allowing every non‑resident to bring themselves within the scope of the Act.
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|Tax Topics - Income Tax Act - Section 118.5 - Subsection 118.5(1) - Paragraph 118.5(1)(b)||tuition paid prior to becoming subject to tax under Part I was not to be recognized under s. 118.5(1)(b)||455|
|Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Taxpayer||an individual not within s. 2(1) or (3) was not a taxpayer who could generate a tuition tax credit||293|