STUDY OF THE DISSOCIATION BETWEEN FEDERAL TAX LEGISLATION AND QUEBEC CIVIL LAW

 

Author: François Auger*

 

TABLE OF CONTENTS

 

INTRODUCTION

1 DEFINITION OF RESIDENCE

1.1 THE CONCEPT OF RESIDENCE UNDER THE INCOME TAX ACT

1.1.1 ORDINARY RESIDENCE

1.1.2 STATUTORY PRESUMPTION OF RESIDENCE

1.1.3 ADMINISTRATIVE POSITIONS AND PRESUMPTIONS– INTERPRETATION BULLETIN IT-221R2

1.2 THE CONCEPT OF RESIDENCE IN COMMON LAW

1.3 THE CONCEPT OF RESIDENCE AS DEVELOPED BY STATUTE LAW:  IMMIGRATION LAW

1.4 THE NOTIONS OF RESIDENCE AND DOMICILE IN QUEBEC CIVIL LAW

1.4.1. THE NOTION OF RESIDENCE

1.4.2. THE NOTION OF DOMICILE

1.5 OTHER TAX LAWS

1.5.1 EXCISE TAX ACT

1.5.1.1 THE NOTION OF RESIDENCE

1.5.1.2 SPECIFIC PRESUMPTIONS IN THE E.T.A

1.5.2 THE ACT RESPECTING THE QUEBEC SALES TAX

1.5.3 THE QUEBEC TAX ACT

2 COMPARISON BETWEEN THE NOTIONS OF RESIDENCE AND DOMICILE IN QUEBEC CIVIL LAW AND THE NOTION OF RESIDENCE FOR TAX PURPOSES

3 RECOMMENDATIONS

BIBLIOGRAPHY

 

Analyse the concept of residence in the Income Tax Act and determine how it may be distinguished from the notion of residence or domicile in the C.C.Q.  Compare the principles developed by the jurisprudence in tax law and in Quebec civil law.  Comment on section 7.14 of the Taxation Actregarding the notion of residence under that statute.

 

INTRODUCTION

The notion of residence in tax law is a key concept, causing people to be subject to Canadian and Quebec tax.  The determination of whether an individual is a resident of Canada or of Quebec allows the relevant tax authorities to levy tax on an individual’s world-wide income.

The concept of residence is not limited to tax law.  It is a central concept which is found in several other fields of law, such as administrative law, social law and immigration law.  Note that each of these fields uses its own definition of residence, which differs, to varying degrees, from the notion of residence used in tax law.

In general, the Civil Code of Québec[1] defines residence as the place where a person ordinarily resides.  It is important, however, to distinguish residence from domicile in the C.C.Q..  Neither of these notions corresponds perfectly to the notion of residence developed under tax law.  In fact, it could be said that residence under tax law is mid-way between the concept of residence and that of domicile in civil law.

We will begin by describing and comparing the concepts of residence and domicile as they are used in tax law, on the one hand, and in the two sources of private law in Canada—the common lawand the C.C.Q.—on the other hand.  In view of this comparison, we will examine the implications associated with the status of resident in the Income Tax Act[2], as well as in certain other tax legislation.

Finally, taking into account the diversity of definitions of residence and domicile, but especially the wish of the Canadian government to harmonize a federal tax legislation in harmony with the principles of Quebec civil law, we will propose an explicit derogation from article 77 of the C.C.Q. similar tosection 7.14 of the Taxation Act (Quebec)[3].

This review will only cover the residence of individuals within the meaning of the I.T.A.and the residence and domicile of natural persons within the meaning of the C.C.Q.

1  DEFINITION OF RESIDENCE

1.1 THE CONCEPT OF RESIDENCE UNDER THE INCOME TAX ACT

An individual may be considered to reside in Canada for tax purposes if one of two general tests is met.  First, an individual may be a resident of Canada under the common law principles established by the case law; this is what is known as “ordinary residence”.  Second, he may be deemed to be a resident Canadian under a specific provision of the I.T.A..  This is the case of a taxpayer who “sojourns” in Canada for more than 183 days.

1.1.1  ORDINARY RESIDENCE

Despite its importance in Canadian tax law, the notion of residence is not defined in theI.T.A..  At the most, the I.T.A. provides that:

“non-resident" means not resident in Canada.[4]

Ordinarily resident. In this Act, a reference to a person resident in Canada includes a person who was at the relevant time ordinarily resident in Canada.[5]

In the absence of a statutory definition, the jurisprudence has developed guiding principles governing the determination of residence in a tax context.  A review of the tax case law is thus necessary to understand the tests used by the private law courts to determine an individual’s residence.  The author Evans states the following:

The provisions of the Act concerning the meaning of "resident" are of narrow application and limited utility.  As a consequence of this statutory vacuum, a significant body of jurisprudence has developed to interpret the concept of residence for income tax purposes.  The facts of these cases are as unique as the taxpayers involved.  Even where the facts may appear similar, the same result is not assured, and the distillation of general principles from these cases can be a frustrating endeavour.[6]

It is important to understand that the notion of residence for tax purposes is not synonymous with physical presence.  Rather, it is an ensemble of legal and economic connections which ties an individual to Canada.  A person who is physically present in Canada is not necessarily ordinarily resident here, and vice versa.  The determination of residence depends on the specific facts and circumstances of each case.  It is therefore not always easy to develop uniform criteria.  As mentioned by Rand J. in the Thomson[7] case:

The graduation of degrees of time, object, intention, continuity and other relevant circumstances, shows, I think, that in common parlance "residing" is not a term of invariable elements, all of which must be satisfied in each instance.  It is quite impossible to give it a precise and inclusive definition.  It is highly flexible, and its many shades of meaning vary not only in the contexts of different matters, but also in different aspects of the same matter.  In one case it is satisfied by certain elements, in another by others, some common, some new.

The expression "ordinarily resident" carries a restricted signification, and although the first impression seems to be that of preponderance in time, the decisions on the English Act reject that view.  It is held to mean residence in the course of the customary mode of life of the person concerned, and it is contrasted with special or occasional or casual residence.  The general mode of life is, therefore, relevant to a question of its application.

For the purpose of income tax legislation, it must be assumed that every person has at all times a residence.  It is not necessary to this that he should have a home or a particular place of abode or even a shelter.  He may sleep in the open.  It is important only to ascertain the spatial bounds within which he spends his life or to which his ordered or customary living is related.  Ordinary residence can best be appreciated by considering its antithesis, occasional or casual or deviatory residence.  The latter would seem clearly to be not only temporary in time and exceptional in circumstances, but also accompanied by a sense of transitoriness and of return. (Emphasis added)[8]

We can, however, extract certain general guidelines which allow us to weigh the different criteria used by the courts to determine an individual’s residence:

• a taxpayer must have a residence[9];
• a taxpayer may have more than one residence[10];
• a taxpayer need not have a fixed establishment to be a resident of a country;
• although residence does not require a constant presence in the jurisdiction, mere presence in the jurisdiction does not necessarily mean that the taxpayer has established his residence there;
• the number of days spent in the jurisdiction is not material to establishing residence (subject to the statutory presumptions, which will be discussed below);
• residence for tax purposes is not necessarily determined by free choice; it may also be determined by the authorities, by business requirements, etc.[11];
• intention and free will, which are essential for determining domicile, are not necessary to establish residence[12].

The following constitute examples of indicia relevant to determining an individual’s country of residence for tax purposes:

• the taxpayer’s nationality;
• past and present life habits;
• location of family home;
• family and social ties;
• business ties;
• purposes of stay;
• ownership of a dwelling or rental of a dwelling on a long-term basisin Canada;
• mailing address in Canada;
• telephone listing in Canada;
• memberships with Canadian churches, clubs, etc.;
• physical presence and frequency of visits to Canada;
• holding credit cards and bank accounts in Canada;
• membership in a Canadian pension plan;
• Canadian driver’s licence;
• Canadian health insurance card;
• filing a Canadian income tax return;
• employment or a prospect of employment in Canada;
• storage of personal belongings in Canada;
• severing all ties with another country of residence;
• obtaining landed immigrant status.[13]

1.1.2  STATUTORY PRESUMPTION OF RESIDENCE

Subsection 250(1) I.T.A. describes certain situations in which a taxpayer is deemed to be resident in Canada.[14]

We will first turn our attention to paragraph (a).  Notwithstanding the jurisprudential principle stated above to the effect that the number of days spent in the jurisdiction is not material in establishing residence, an individual will be deemed to be resident in Canada if he sojourned in Canada in the year for a period of, or periods the total of which is, 183 days or more.

Although the deemed residence test appears to be easier to apply, the fact remains that “sojourn” is not defined in the I.T.A.  It suggests a temporary condition, as opposed to the more permanent concept of residence.  As Estey J. stated in Thomson:

A reference to the dictionary and judicial comments upon the meaning of these terms indicates that one is "ordinarily resident" in the place where in the settled routine of his life he regularly, normally or customarily lives.  One "sojourns" at a place where he unusually, casually or intermittently visits or stays.  In the former the element of permanence; in the latter that of the temporary predominates[15].

It is generally understood that the notion of residence takes precedence over that of sojourn.  Accordingly, if it is held that an individual’s ties to Canada are sufficient to make him a resident, it will be impossible for that individual to declare himself a non-resident because he has not sojourned in Canada 183 days or more.  In this respect, note that the corresponding presumption in paragraph 8(1)a) of the Q.T.A. reads as follows:

An individual is deemed to have been resident in Quebec throughout a taxation year if, at any time in the year, the individual

a)      sojourned in Quebec for a period of, or periods the total of which is, 183 days or more and was ordinarily resident outside Canada;

The Q.T.A. is thus clear on this point—a taxpayer cannot be subject to the provisions of paragraph 8(1)a) if he is already ordinarily resident.

The notion of what constitutes a “day” for the purposes of applying the deemed residence provisions must also be determined.  The term “day” normally covers a 24-hour period.  This, however, is not the opinion of the Canada Customs and Revenue Agency (hereinafter “CCRA”).  According to the CCRA, a day is any day during which a person is present in Canada, regardless of the number of hours.  The case law, however, does not support this position.  In Stephens v. MNR[16], it was held that in calculating the number of days during which a taxpayer has sojourned in Canada during the year, the number of days in which the taxpayer was only in Canada for one hour should not be taken into account.

 It has been established that people who commute between Canada and the United States are not sojourning in Canada within the meaning of paragraph 250(1)a) for the sole reason that they work in Canada, if their centre of vital interests is in the United States [17].  As stated by Prociuk J.:

In pursuing numerous cases decided by the Canadian and British Courts, it is obvious that coming from one country to work for the day at a place of business in another country and thereafter returning to one’s permanent residence in the evening, is not tantamount to making a temporary stay in the sense of establishing even a temporary residence in the country where the business enterprise is situated[18].

Finally, note that the Canada – U.S. Income Tax Convention[19] must be referred to in order to determine the residence of an individual who has sojourned in Canada more than 183 days who is also an American citizen.  In the Wolf[20] case, it was held that the taxpayer had dual residency—in Canada under the presumption of residence in paragraph 250(1)a) of the I.T.A., and in the United States, and that he had a permanent home in both countries.  The Court had to analyse the taxpayer’s personal and economic ties in order to determine, as required by subsection 2(a) of Article IV of the Canada – U.S. Income Tax Convention, with which country those ties were the closest.

It is interesting to note that the factors examined to determine the personal and economic ties of a taxpayer with either countries which are party to the Convention are similar to those used by Canadian courts in a domestic context, as the following analysis by Lamarre J. demonstrates:

I am of the view that the appellant had a permanent home available to him in both countries.  Indeed, he had a place to stay in Canada and with only one month’s notice he could return to his condo in Florida.  However, I find that the appellant’s centre of vital interests was more in the United States than in Canada.  The appellant is not married, but still, all his family was in the United States.  His bank accounts and savings and his stockbroker were all in the United States.  Apart from one bank account and one credit card which he had here in Canada for his day-to-day living expenses, the appellant did not maintain any economic relations with Canada.  He obtained his patent in the United States and wired all his savings to the United States.  The United States was the country to which he returned with frequency and regularity.  Although the appellant’s place of work was in Canada, I do not think that this overrides the fact that his centre of vital interests remained in the United States.  He came to Canada to work on a temporary basis because the job was here.  His contract was in fact extended, but this does not mean however that his personal and economic relations were with Canada.  His source of income was in Canada but there were no other ties to this country.  In fact, the way he acted shows rather that it was never his intention to stay permanently in Canada or to have an habitual abode here.  He never really settled in Canada.  He spent all his free time with his family in the United States, took out all his insurance in the United States, was not insured here in Canada, and only kept here a pied-à-terre, a room in Dollard-des-Ormeaux (Quebec).  He never requested landed immigrant status nor Canadian citizenship.  He is an American citizen and has an American passport only.  He declared his world income and paid his income tax in the United States for all the years in question.  This is sufficient for me to be able to say that the appellant is deemed to be a resident of the United States within the meaning of paragraph 2 of article IV of Canada-U.S. Income Tax Convention.[21]

Although this case arose in Quebec, the judge ignored the notion of residence in the C.C.Q., using instead the tests developed by the common law precedents.

1.1.3 ADMINISTRATIVE POSITIONS – INTERPRETATION BULLETIN IT-221R3

In Interpretation Bulletin IT-221R3[22], the CCRA sets forth the factors which will be taken into consideration in determining whether or not the individual remains a resident of Canada for tax purposes while abroad, including:

a)      residential ties within Canada;

b)      evidence of intention to permanently sever residential ties with Canada;

c)      regularity and length of visits to Canada;

d)      residential ties elsewhere; and

e)      the permanence and purpose of stay abroad.

This Interpretation Bulletin was revised as of February 28, 2002.  In its prior version, the federal tax authorities assumed that, where a Canadian resident was absent from Canada for less than two years, he was presumed to have retained his residence status while abroad, unless he could clearly establish that he has severed all residential ties upon leaving Canada.  On the other hand, where an individual was absent from Canada for two years or longer, he was presumed to have become a non-resident of Canada, provided that he has not maintained significant ties to Canada which would have made him a resident despite his physical absence.

These presumptions were only administrative presumptions and, as such, did not have force of law.  Furthermore, nothing could be found in the established case law to support this position..

The new version of the interpretation bulletin eliminates this two-year presumption and expands in greater detail on the factors that will influence the residence status of an individual, as developed by the courts.  We may thus conclude that the new version of IT-221R3 generally constitutes a better summary of the principles developed by the case law.

1.2  THE CONCEPT OF RESIDENCE IN COMMON LAW

In private international law, the notion of residence is necessary to determine the legislative and territorial jurisdiction applicable to an individual.  Residence is primarily a connecting factor.  The concept of domicile is used in the common law as it is in Quebec civil law.  The notion of “habitual residence”[23] is also referred to.

Domicile may be defined as “a person's permanent home which requires the act of residence and the intention to remain there permanently”[24].  Domicile essentially includes two elements, “the fact of residence” and “the intention to stay there permanently or indefinitely”[25].  In common law, residence is therefore only one element of domicile, meaning that domicile requires more than mere physical presence.  Intention is an important element in determining domicile.[26]

Any act, event or circumstance in the life of an individual may be evidence from which the state of his mind may be inferred with more or less precision; every aspect of his life, his action and statements may be adduced.  It is impossible to formulate any general rule by which the weight due to any particular piece of evidence may be determined.  Not only does the strength of the evidence from which the intention may be inferred vary according to the inherent probability or improbability of an alleged change of domicile, but the importance of similar facts may differ absolutely in different cases…  The intention must be clearly and unequivocally proved.[27]

Although an individual may have more than one residence, he can only have one domicile.[28]  Accordingly, if a person owns several houses in different jurisdictions, his place of domicile will be where his chief residence is found.[29]  As for his existing domicile, it is deemed to continue until it is proven that a new domicile has been acquired.[30]  A person is deemed to have abandoned a domicile, in a country for example, when he ceases to reside there and no longer has the intention of residing there permanently.[31]  Finally, litigation involving an individual’s domicile may be settled by provincial law.[32]  For example, Manitoba enacted the Domicile and Habitual Residence Act, 1983 which essentially restates the principles set forth above.

Domicile and residence are two notions which should not be confused.  Residence does not require the intention to permanently remain in a place—it only requires physical presence.  As for domicile, an individual may remain domiciled in a place despite a prolonged absence if there is a clear intention to return there.  “Residence is necessary to domicile but domicile is not necessary to residence.”[33]  An individual may also have more than one residence, but he will never have more than one domicile.  By analyzing the notions of domicile and residence in common law, we will see that they are similar to the civil law principles we will discuss below.

1.3  THE CONCEPT OF RESIDENCE AS DEVELOPED BY STATUTE LAW:  IMMIGRATION LAW

The notion of residence is not foreign to the various branches of statute law which, in several cases, gives its own definition based on the goals and policies behind the legislation.  Immigration law is one example where the legislator wanted to attach specific elements to the notion of residence, as opposed to those found in the common law.

Under paragraph 5(1)c) of the Canadian Citizenship Act[34] the Minister grants citizenship to any person who:

(c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner:

(i)      for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and

(ii)     for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence.

In immigration matters, residence therefore constitutes a condition for the granting of Canadian citizen or refugee status.  Nonetheless, even in immigration law, there is no set definition of residence and the concept remains largely a question of fact.  On the other hand, the notion of residence for immigration purposes differs from the same concept in tax law, in that immigration law emphasizes physical presence and the individual’s intention.

In Blaha v. Minister of Citizenship and Immigration[35], Rand J. confirmed that residence in immigration law has a more limited meaning than “ordinary residence” in tax law:

In my opinion a person is resident in Canada, within the meaning of the Canadian Citizenship Act only if he is physically present (at least usually) on Canadian territory.  I feel that this interpretation is in keeping with the spirit of the Act, which seems to require of the foreigner wishing to acquire Canadian citizenship, not only that he possess certain civic and moral qualifications, and intends to reside in Canada on a permanent basis, but also that he has actually lived in Canada for an appreciable time.  Parliament wishes by this means to ensure that Canadian citizenship is granted only to persons who have shown they are capable of becoming a part of our society.[36]

The Re Papadorgiorgakis[37] decision later eased the principle laid down by Rand J. that physical presence was an indispensable element of residence for immigration purposes.  The Re Koo[38] case summarizes the state of immigration law involving residence in the following terms:

The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant "regularly, normally or customarily lives". Another formulation of the same test is whether Canada is the country in which he or she has centralized his or her mode of existence.  Questions that can be asked which assist in such a determination are:

1)      was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?

2)      where are the applicant’s immediate family and dependants (and extended family) resident?

3)      does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?

4)      what is the extent of the physical absences—if an applicant is only a few days short of the 1,095-day total it is easier to find deemed residence that if those absences are extensive?

5)      is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad?

6)      what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?

[…] In my view to allow physical absence to be treated as residence within the country for the purposes of obtaining citizenship, the quality of the person’s connection with this country must demonstrate a primacy or priority of residence in Canada (a more substantial connection with Canada than with any other place)[39].

However, physical presence is still the most relevant factor in determining residence for immigration purposes.  As Pinard J. stated in Canada (Minister of Citizenship and Immigration) v. Lee[40]:

(…) actual presence in Canada remains the most relevant and crucial factor to be taken into account for establishing whether or not a person was "resident" in Canada within the meaning of the provision [paragraph 5(1)(c) of the Canadian Citizenship Act]. As I have stated on many occasions, too long of an absence from Canada, albeit a temporary one, during that minimum period of time is contrary to the spirit of the Act, which already allows a person who has been lawfully admitted to Canada for permanent residence not to reside in Canada during one of the four years immediately preceding the date of that person's application for citizenship[41].

In the Koo[42] case, Reed J. drew a parallel between the notion of residence for tax purposes and the notion of residence for immigration purposes:

The Thomson case, of course, dealt with tax matters.  I am not convinced that the quality of residence required to fulfil the requirements of the Citizenship Act admits a similar interpretation. In my view to allow physical absence to be treated as residence within the country for the purposes of obtaining citizenship, the quality of the person’s connection with this country must demonstrate a primacy or priority of residence in Canada (a more substantial connection with Canada than with any other place).[43]

The primacy of connection requirement is not found in the tax cases dealing with the issue of residence, even where a taxpayer has been physically absent from the country for an extended period.

Thus we see that, in immigration matters, the courts have emphasized the physical presence factor.  But in addition to physical presence is the issue of whether the person has centralized his normal or ordinary mode of existence in Canada.  As Noël J. stated in Lai v. Canada (Minister of Citizenship and Immigration)[44]:

[i]n cases where physical absence is encountered during a statutory period, proof of continued residence will require evidence as to the temporary nature of the absence, a clear intent to return and the existence of sufficient factual ties with Canada to assert residence in fact during the period [...] Where a businessman established Canada as his place of abode by setting up his matrimonial home and family there, he is permitted to travel within reason to earn a living[45].

The tax case law also supports the conclusion that the concept of residence for tax purposes differs from the concept used in immigration law.  In Lee v. MNR[46], the taxpayer was held to be a resident for tax purposes although he only had visitor’s status under Canadian immigration laws, because he had married a resident Canadian and he had sworn that he was not a non-resident of Canada in order to obtain a mortgage guaranteeing the purchase of the family home in Canada.

Even in immigration law, the notion of residence must be distinguished from the notion of sojourn.  In Aguilar v. Canada (Minister of Citizenship and Immigration)[47], Lemieux J. held as follows:

[…] we could theoretically establish three major stages:  being physically established in a specific place for a long period—residing—where there is little physical movement; being physically established in a specific place for a time and then leaving—sojourning; and lastly, being physically established, in a temporary manner, for a short period of time or for reasons beyond his or her control—transiting.[48]

Note that an individual sojourning in Canada may, under the statutory presumptions contained in paragraph 250(1)(a) of the I.T.A., become a resident of Canada for tax purposes, whereas sojourning in Canada does not imply residence for immigration purposes.

1.4 THE NOTIONS OF RESIDENCE AND DOMICILE IN QUEBEC CIVIL LAW

1.4.1. THE NOTION OF RESIDENCE

Article 77 C.C.Q. states that:

The residence of a person is the place where he ordinarily resides; if a person has more than one residence, his principal residence is considered in establishing his domicile.

The notion of residence preferred by the C.C.Q. is that of ordinary residence.  The existence of an ordinary residence requires a certain degree of stability, and thus requires more than merely living in a place—it implies an element of frequency, or routine, and differs from a brief or occasional visit.  For example, it covers a summer or secondary residence as opposed to the renting of a chalet or cottage for a temporary period[49].

According to Deleury and Goubau, the notion of residence is less abstract and more realistic than that of domicile, since domicile is a legal relation and residence is a pure question of fact.[50]  Thus, where an individual’s domicile cannot be determined with certainty, section 78 paragraph 1 C.C.Q. states that residence will be used as his deemed domicile.[51]

The concepts of residence and domicile should not, however, be confused.  Residence is only a component of domicile.[52]  Also, residence alone does not have the effect of legal centralization which domicile produces.  The notion of residence, within the meaning of the C.C.Q., is mainly used to determine objective ties, which constitute one of the prerequisites to identifying an individual’s domicile.

Note, however, the increased importance given to the notion of residence since the coming into force of the C.C.Q. :

[Translation] At times, residence is seen as a reference competing with domicile.  This occurs especially in private international law, where residence, along with domicile, forms the basis for the international jurisdiction of Quebec courts.  It can also happen that the law makes it produce its own effects.  Thus, in matters of divorce, residence determines the jurisdiction of the courts.  In matters of conflict of laws, the Code gives it an independent role as a connecting factor[53].

It is interesting to note that, in Droit de la famille 2617[54], a divorce case, the Superior Court referred to the concept of ordinary residence in federal tax law and in the common law to hold that the tests for determining residence within the meaning of the C.C.Q. are similar to the tests developed by the common law, [Translation] “since, in this field as in many others, our Courts look to English law to interpret the provisions of the Code”[55].  Thus, for example, the Court refers to the Adderson v. Adderson case[56], which held that:

[...] the term “habitual residence” refers to the quality of residence.  Duration may be a factor depending on the circumstances.  It requires an animus less than that required for domicile; it is a midpoint between domicile and residence, importing somewhat more durable ties than the latter term.”[57]

Note also that Sénécal J. assimilates the notion of residenceintroduced by the coming into force of the C.C.Q. with that of ordinary residence in income tax law as follows:

[Translation] The rules relating to domicile have been greatly  eased by the Civil Code of Quebec which came into force on July 1, 1994.  Domicile tends now to be confused with residence more than it did, among other things, by the adoption of presumptions which distinguish between domicile and residence or the place a person is found (art. 78 C.C.Q.).  Furthermore, the addition of the notion of “ordinarily” to that of residence has also made the concepts of domicile and residence more similar.  That being said, domicile and residence clearly remain two separate notions in the Code which should not be confused.  They do not cover the same thing, and one is broader than the other.[58]

1.4.2.THE NOTION OF DOMICILE

At first glance, a discussion on the notion of domicile might appear unnecessary or superfluous because the term is not used in income tax law.  However, a review of the notion of domicile reveals that this concept, which at first appears to be a purely civil one, becomes paramount in light of the tendency to use the taxpayer’s intention as a major factor in determining residence in tax matters.

The C.C.Q.,at article 77, reiterates the principle of the plurality of residences.  On the other hand, an individual can only have one domicile.  The C.C.Q. does not clearly define domicile, but, at article 75, it provides that “[t]he domicile of a person, for the exercise of his civil rights, is at the place of his principal establishment”.

Note that article 75 C.C.Q. does not use the term “ordinary residence” but “principal establishment”, which indicates that factors other than residence will be taken into consideration to determine domicile.  In this respect, article 76 C.C.Q. states that “Change of domicile is effected by actual residence in another place coupled with the intention of the person to make it the seat of his principal establishment”.  The notion of domicile therefore relates not only to an objective factual element, residence, but also to a subjective intentional element.[59]  Note here the similarity with the concept of domicile in common lawanalysed above.

Although ordinary residence at times coincides with the notion of domicile, domicile includes a much more pronounced element of fixity, due in part to the fact that the determination of domicile has legal consequences which could have significant repercussions on an individual’s life.  Domicile is used to link people to a specific jurisdiction for the exercise of civil rights and the settlement of patrimonial interests.  As Deleury and Goubau point out:

[Translation] Where a person divides his life between several places, for the purposes of determining domicile, the courts will consider the place he frequents ordinarily, that is, the place where he spends the most time.  A person may in fact habitually frequent another place, but effectively stay there less time, or frequent it on a seasonal basis (summer residence, secondary residence).  In some cases, residence, as a factual element, allows us to determine domicile[60].

Domicile is thus certainly more fixed, more stable and more durable than residence.  It is not enough to have objective ties (a home, physical presence, economic and family ties, etc.) to have one’s domicile in a given place, although those objective elements allow us to infer a person’s intention to establish his residence in that place.  On the other hand, a person’s mere intention to establish his residence in a place without objective proof of residence will not be sufficient to establish domicile.  Note that the establishment of a family residence is not in and of itself conclusive, despite the fact that it constitutes an important step supporting the domicile argument.[61]

The elements of intention and free choice which characterize the notion of domicile allow a person to retain his domicile despite a more or less prolonged absence, as long as it is unclear that he has voluntarily established his domicile elsewhere and abandoned his previous domicile.  On the other hand, it is quite possible for a person to involuntarily acquire a new residence provided the objective elements required to infer residence are sufficiently present in the new jurisdiction.

In conclusion, it is useful to say a few words on the use of domicile with respect to the exercise of civil rights, which is based on three main functions.  First, domicile is a test linking an individual to a territorial jurisdiction.  The exercise of civil rights sometimes requires the intervention of an authority and, for reasons of efficiency and sound administration, jurisdiction is determined according to territory.  Using domicile thus allows us to determine to which authorities a person can turn to exercise his civil rights.  [Translation] “Domicile determines the place where the legal operations which are necessary to settle or liquidate a person’s monetary interests are centralized; those operations generally involve the intervention of legal authorities on a non-contentious basis.[62]”

Second, as we mentioned above, domicile is a factor attaching a person to a legislative jurisdiction.  Thus, where a case includes extraneous elements, we must ask which legal system will be able to decide it.  In that case, the applicable law must be determined.  In cases involving personal status and estates, domicile is the factor which determines legislative jurisdiction in Quebec private international law.

Finally, domicile constitutes the place of permanent presence, which facilitates the exercise by third parties of their rights against the holder of the domicile. Domicile is where proceedings are served, if they cannot be handed to the person.[63] Performance of an obligation must also take place at the debtor’s domicile.[64]

1.5  OTHER TAX LAWS

1.5.1  EXCISE TAX ACT

1.5.1.1 THE NOTION OF RESIDENCE

The interpretation of residence in the Excise Tax Act[65] does not appear to differ from that under the I.T.A..  Therefore, in cases where the presumptions described below are not applicable, a person will be considered to reside or not to reside in Canada according to the criteria developed under the I.T.A..  Note that, far from excluding the application of the principles developed under the I.T.A., the E.T.A. expressly states, at paragraph 132(1)d), that:

(1)        For the purposes of this Part, a person shall be deemed to be resident in Canada at any time

(d)     in the case of an individual, if the individual is deemed under any of paragraphs 250(1)(b) t (f) of the I.T.A. to be resident in Canada at that time.

We can thus infer from such an explicit reference to the I.T.A. that Parliament wishes to make the notion of residence for income tax purposes corresponds to that for consumption tax purposes.  The case law developed under the I.T.A. is therefore relevant in interpreting the provisions of the E.T.A. relating to residence, provided the specific presumptions of residence set forth in the E.T.A. do not apply.

1.5.1.2 SPECIFIC PRESUMPTIONS IN THE E.T.A.

Apart from the reference to statutory presumptions in the I.T.A., the E.T.A. contains a series of presumptions involving residence and non-residence which are specific to it.  Subsections 132(2) and 132(3) read as follows:

Permanent establishment of non-resident

(2) For the purposes of this Part, where a non-resident person has a permanent establishment in Canada, the person shall be deemed to be resident in Canada in respect of, but only in respect of, activities of the person carried on through that establishment.

Permanent establishment of resident

(3) For the purposes of this Part, where a person who is resident in Canada has a permanent establishment in a country other than Canada, the person shall be deemed to be a non-resident person in respect of, but only in respect of, activities of the person carried on through that establishment.

In order to understand the rationale behind these presumptions, we must examine the tax policy behind the E.T.A. on one hand and the I.T.A. on the other.  The purpose of the I.T.A. is to tax the world-wide income of any person who resides in Canada, whereas the E.T.A. involves a consumption tax and its purpose is to tax any commercial transaction that has some sufficient nexus to Canada.

The purpose of the presumptions in subsections 132(2) and 132(3) is thus either to subject to the goods and services tax (“GST”) the transactions of a non-resident which have a particular connection with Canada, or to exempt from GST transactions of a Canadian resident which lack a particular connection with Canada.  Note that the fact that a transaction is not subject to the GST does not necessarily mean that the person who carried out the transaction will not be taxed in Canada on the income generated by it, since the presumptions in the E.T.A. purport to subject to GST the transaction itself, whereas the I.T.A. purports to subject to income tax the Canadian-resident taxpayer who earns income, regardless of its source.

1.5.2 AN ACT RESPECTING THE QUEBEC SALES TAX[66]

The Act respecting the Québec Sales Tax states at subsection 11(4) that an individual is deemed to be resident in Quebec for the purposes of the Q.S.T.A. if the individual is deemed under any of paragraphs b) to f) of section 8 of the Taxation Act to be resident in Quebec at that time.[67]

Presumptions similar to those in subsections 132(2) and (3) of the E.T.A. are found in sections 11.1.1 and 13 of the Q.S.T.A.  An additional presumption appears in section 14.1, which states that:

A person not resident in Quebec is deemed to be resident in Canada at any time if the person is deemed to be resident in Canada at that time under the Excise Tax Act.

The Q.S.T.A. therefore substantially reproduces the provisions of its federal counterpart and even incorporates the provisions of the E.T.A. by reference.  In addition, in a way similar to that adopted by the federal legislation, the Q.S.T.A. refers to the provisions of the Q.T.A. relating to certain presumptions of residence, which leads us to believe that the principles developed by the courts under the Taxation Act should also be used to determine the residence of individuals under the Q.S.T.A. where the presumptions of sections 11.1.1 and 13 of the Q.S.T.A. do not apply.

1.5.3 THE TAXATION ACT

The Q.T.A. describes the concept of residence in a manner similar to that used in the I.T.A..  In addition, the Quebec case law on residence for tax purposes has been developed in conjunction with the common law case law, with the difference that the Quebec case law seems to give more weight to the taxpayer’s intention as a criterion to determine residence.

It is interesting to note that, in taxation matters, Quebec courts generally use the tests developed by common law courts to determine an individual’s place of residence under the Q.T.A.. Even more interesting is the fact that the Court of Appeal of Quebec expressly stated, in Roy v. S.M.R.Q.[68], that the taxpayer’s intention constituted a relevant element in determining his residence.

The administrative pronouncements of the ministère du Revenu du Québec (hereinafter “the Ministère”) also tend to introduce the criterion of intention in analysing the elements relevant to the determination of residence.

In Interpretation Bulletin IMP.22-3/R1[69], the Ministère expressly mentions the intention to return to Canada at the end of a stay abroad as a factor in determining whether a taxpayer maintained his residence during his absence.  Section 11 of IMP.22-3/R1 states the following:

Anticipated Return to Quebec at the end of the stay

11. Where an individual leaves Canada, even for a period of two years or more, and the facts prove that his return to Quebec is anticipated at the end of his stay away from Canada, this factor together with other existent residential ties given in this bulletin must be examined to determine whether, taken as a whole, they are significant enough to conclude that that individual is not definitely severing his residential ties within Québec.

The Ministère considers that the following facts, in particular, may determine that a return to Quebec is anticipated:

• the individual carries on, away from Canada, specified work of limited duration (bridge constuction – installation of prefabricated houses – telephone net-work, etc.);
• the individual performs his services under a contract of limited duration in which his return to Québec is foreseen;
• the individual reserves the right to return to Québec or his employer reserves the right to call him back;
• the individual has the assurance of resuming his functions with his employer upon returning to Québec or of being employed therein.

Contrary to the statements of the federal tax authorities in Interpretation Bulletin IT-221R3[70], the Ministère does not provide for an administrative presumption as to the length of a taxpayer’s stay abroad.  The two-year test found in Interpretation Bulletin IT-221R3[71] is expressly rejected by the Ministère, which could give rise to the strange situation in which a person is considered to be a non-resident by the federal tax authorities and a resident for the purpose of taxation in Quebec.

2 COMPARISON BETWEEN THE NOTIONS OF RESIDENCE AND DOMICILE IN QUEBEC CIVIL LAW AND THE NOTION OF RESIDENCE FOR TAX PURPOSES

At first glance, the concepts of residence in civil law and in tax law may appear to be similar.  A closer look, however, reveals that the notion of residence found in the C.C.Q. implies a more volatile element than the notion of residence for tax purposes.  It appears to be easier for an individual to abandon his residence within the meaning of the C.C.Q. than to become a non-resident within the meaning of tax legislation.

This is due in part to the fact that the notion of residence in the C.C.Q. seems to give more importance to physical presence.  In fact, physical presence seems to be a determining factor under the C.C.Q., whereas the tax jurisprudence has clearly established that physical presence in a place is not in and of itself indicative of residence.  Finally, the tendency to bring intention into the notion of residence for tax purposes, both in the jurisprudence and administratively, has contributed to the dissociation of the notion of residence in civil law from the notion of residence in tax law .

Although certain decisions appear as an attempt to dissociate the notion of residence from any intentional element[72], other decisions as well as the administrative pronouncements of the tax authorities have introduced a subjective element into the analysis of the notion of residence[73].

It is interesting to note that the Quebec courts have, in tax matters, generally used the criteria developed by the common law courts to determine an individual’s residence under the Q.T.A., while placing a particular importance on the taxpayer’s intention as a relevant element in determining residence.

In Touchette v. Quebec (Sous-ministre du Revenu), Desmarais J. stated the following:

[Translation] Canadian and Quebec case law has established certain benchmarks such as past and present habits of life, the regularity and length of visits to the home country, the maintenance of the original home, former and new ties and the intention to establish oneself in the new country.  These criteria do not necessarily have to be found in each case.

The Court has also considered other cases from common law countries[74].

In addition, in the Roy case, Crête J. of the Court of Appeal of Québec used the criteria developed by common law courts to define the notion of residence:

[Translation] In the absence of definitions, courts have defined the notion of residence for individuals.  On this point, we may refer to the following authorities, among others:

THOMSON v. MNR – (1946) S.C.R. 209.

SCHUJAHN v. MNR – (1962) 328, Exchequer Court of Canada.

THE QUEEN v. REEDER – (1975) D.T.C. vol. 29, p. 5160[75].

And further on he states:

[Translation]  Among the factors to consider, the Reeder case mentions the following:

a)The taxpayer’s past and present habits of life;

b)      The regularity and length of visits of the taxpayer in the jurisdiction asserting residence;

c)      The taxpayer’s ties within that jurisdiction;

d)      The taxpayer’s ties elsewhere; and

e)      The taxpayer’s permanence of stay abroad.”

We may also take into account the taxpayer’s intentions and the reasons which have led to his stay abroad.[76]

If the civil law notion of residence is not the mirror image of the notion of residence for tax purposes, neither can domicile be equated to residence for tax purposes, notwithstanding the intentional element which seems to bring the two concepts together, if only because an individual can only have one domicile, whereas it has been established by the case law that an individual may reside in several places for tax purposes.  Furthermore, the acquisition of a domicile requires a degree of fixity greater than that required for the acquisition of residence for tax purposes.  In fact, in order to identify an individual’s domicile, not only must the establishment of residential ties and the intention to establish such ties in the new chosen jurisdiction be demonstrated, there must also be evidence that the previous domicile has been abandoned, whereas the establishment of a new residence for tax purposes does not require proof of the abandonment of the previous residence.

Residence for tax purposes therefore seems to be situated mid-way between the notion of residence and the notion of domicile under the C.C.Q..  One could even say that the introduction of an intentional element into the fiscal residence test, especially in the provincial tax jurisprudence, contributes to distancing the notion of residence for tax purposes from the notion of residence for civil law purposes and bring it closer to the notion of domicile.

3 RECOMMENDATIONS

Introduced in 1994, section 7.14 of the Q.T.A. provides:  “[t]he application of this Act and the regulations is not affected by article 77 of the Civil Code of Québec as regards the determination of whether or not a person is resident in Quebec, in Canada or elsewhere.”

The Touchette[77] decision was rendered in 1996 after section 7.14 of the Q.T.A. came into force.  In that case, the Court of Quebec not only reaffirmed the reciprocity of federal tax law and provincial tax law, it also considered case law from other common law countries.

An individual’s residence constitutes a preferred criteria for connecting him to a jurisdiction.  This is why several federal and provincial statutes – we have, as an example, examined the notion of residence in immigration law – use the criteria of residence to determine the rights, privileges, duties and liabilities of individuals with significant ties to their jurisdiction.

The dichotomy that exists between the notion of residence in tax law and in civil law is also found among the different branches of common law.  The notion of residence is generally not defined in laws using this factor to connect a person to a jurisdiction.  The absence of a definition is, however, not surprising.  The multiplicity of factual elements that underlie the notion of residence as well as the different weight to be given to these elements based on the legislative policy behind each legislation make it difficult to give a precise and exhaustive definition of residence without the risk of giving the concept of residence a rigidity which is incompatible with the reality of a modern society in which people are required to move and establish ties in several jurisdictions.  The very nature of the concept of residence thus requires a versatile and adaptable interpretation based on the goal that a particular statute is intended to achieve.

In tax law, the legislator has at times chosen to create specific presumptions when necessary, with a view to adapting each legislative text to a specific goal.  The specific presumptions found in the E.T.A. and the Q.S.T.A. are examples of this.  These statutory presumptions allow us to accommodate the differences in legislative policy, while keeping as a foundation the same notion of residence for income tax and consumption tax purposes.

We have demonstrated that neither the notion of residence nor the notion of domicile as defined in the C.C.Q. completely correspond to the concept of residence for tax purposes as it is interpreted by the tax case law inspired by the common law.  Accordingly, there is a dissociation between federal tax law and the C.C.Q. regarding the notion of residence.

In paragraph 2 of the Preliminary Provision, the C.C.Q. sets forth the private law of the province.  Where the tax legislation is incomplete, the courts called upon to render decisions on tax matters must refer to it[78].  According to Jean-Maurice Brisson:

[Translation] Indeed, whenever a federal statute that is to be applied to Quebec resorts to a private law concept without defining it, and the Interpretation Act is likewise silent, or the federal statute does not fully occupy the possible field of private law jurisdiction in question, it is the Civil Code that supplies the necessary conceptual support for an intelligent application of that statute.  The implicit dependency of federal legislation is therefore by far the situation that is most widespread.[79]

However, even the Quebec courts, when interpreting the notion of residence for tax purposes under the Q.T.A., have used the common law tests that underlie the interpretation of federal tax laws.  Referring to the C.C.Q. to determine an individual’s residence for tax purposes would lead to unjustifiable differences of treatment among Canadian taxpayers based on their province of residence.  As Jean-Maurice Brisson states:

[Translation] In tax matters, considerations of equality of taxpayers before the tax department may lead the legislator to give some legal notions an endorsement which does not coincide with provincial law.[80]

Such a remark clearly illustrates the situation we find ourselves in when we analyse the notion of residence for tax purposes, which not only differs from the notion of residence and domicile under the C.C.Q., but also from the notion of residence used in the other branches of common law and statutory law.

In tax law cases, Canadian courts have generally understood and uniformly applied the principles of residence for tax purposes developed in the federal tax case law.

The harmonization bill entitled A First Act to harmonize federal law with the civil law of the Province of Quebec and to amend certain Acts in order to ensure that each language version takes into account the common law and the civil law was tabled on May 11, 2000.  One of the main components of the bill is an amendment to the federal Interpretation Act[81].  The amendment consists of adding provisions that recognize the coexistence of two Canadian legal traditions (civil law in Quebec and common law in the other provinces) and that confirm the need to refer to provincial law when applying a public and private federal law.[82]  Accordingly, where a federal law does not define a private law term, we must turn to the private law in force in the province in which the case arises.

This rule had already been stated by the author Brisson[83] and was reiterated in St-Hilaire v. Canada (Attorney General)[84].  The issue in that case was whether the meaning of the words “surviving spouse” and “succession” in the federal Public Service Superannuation Act[85] should be interpreted in light of the C.C.Q. or the common law where the law is silent.  Article 620 of the C.C.Q. states that “a person convicted of making an attempt on the life of the deceased” is “unworthy of inheriting by operation of law”. Décary J., dissenting in part, made the following comment with respect to the complementarity between a federal law and the C.C.Q. where a case arises in Quebec:

It is the Constitution of Canada itself which provides that some federal laws have differing effects according to whether they are applied in Quebec or in the other provinces. By guaranteeing the perpetuity of the civil law in Quebec and encouraging in section 94 the uniformization of the laws of provinces other than Quebec relative to property and civil rights, the Constitution Act, 1867 enshrines in Canada the federal principle that a federal law that resorts to an external source of private law will not necessarily apply uniformly throughout the country. To associate systematically all federal legislation with common law is to ignore the Constitution.

A judge who must interpret and apply a federal enactment in a dispute concerning civil rights in Quebec must know that as a general rule, and subject to what will be said later in regard to so-called public law statutes, the suppletive law is the civil law. This does not mean that no attempt should be made to harmonize the effects of federal statutes throughout the country wherever this is possible in the private law. (See: Canada v. Construction Bérou (1999), 251 N.R. 115 (F.C.A.); Biderman v. Canada (2000), 253 N.R. 236 (F.C.A.).) What it does mean is that asymmetry is the rule under the Constitution. It also means that if there is harmonization, it may draw equally on both the civil law and the common law.

A Quebec litigant involved in an action pertaining to his civil rights under a federal enactment that is silent in this regard is entitled to expect that his civil rights will be defined by the Quebec civil law, even if the adverse party is the federal government. As Professor Morel clearly states, in "Harmonizing Federal Legislation with the Civil Code of Québec: Why and Wherefore?", a study published in the Department of Justice Canada collection (supra, paragraph 39): 

The complementarity of federal private law legislation with Quebec civil law -- as with the basic law of every province -- is the rule both in principle and, if only because Parliament rarely interferes with it, in practice. (p. 17)

For a more systematic application, Parliament seems to have felt the need to codify this rule of interpretation.  Accordingly, the federal Interpretation Act contains the following provision:

Art. 8.1 Both the common law and the civil law are equally authoritative and recognized sources of the law of property and civil rights in Canada and, unless otherwise provided by law, if in interpreting an enactment it is necessary to refer to a province's rules, principles or concepts forming part of the law of property and civil rights, reference must be made to the rules, principles and concepts in force in the province at the time the enactment is being applied.

There is no doubt that the I.T.A. is a public order statute.[86]

In the St-Hilaire decision, Décary J. states that principles of private law, in civil law or common law, may be used when applying a public law with regard to a notion of private or public law:

What, in my view, should determine whether or not it is necessary to resort to the private law (in Quebec, the civil law) is not the public or private nature of the federal enactment at issue but the fact, quite simply, that the federal enactment in a given case must be applied to situations or relationships that it has not defined and that cannot be defined other than in terms of the persons affected. In some ways the circle is closed and we come back to the point of departure, in section VIII of the Quebec Act: when these affected persons are litigants and their civil rights are in dispute and have not been defined by Parliament, it is the private law of the province that fills the void. In short, the civil law applies in Quebec to any federal legislation that does not exclude it.[87]

As the definition of residence in the I.T.A. is incomplete, the Interpretation Act henceforth requires the interpreter to refer to the notion of residence in civil law or common law, depending on the source of the litigation.  In this case, although the notion seems to be similar in both systems, they have certain differences.  There is therefore a risk that taxpayers from different provinces will be treated differently.

Furthermore, residence in tax law and in common law do not have the same objectives, which may create problems if the private law tests are used in a tax law context. 

As a precautionary measure, we are of the opinion that one way Parliament could intervene would be to adopt an explicit derogatory clause in the I.T.A., similar to section 7.14 of the Q.T.A., which excludes the application of article 77 C.C.Q..  We are not suggesting, however, the exclusion of the application of the C.C.Q. in its entirety, to avoid creating a legal vacuum in cases where a legal dispute is difficult to resolve.

However, in light of the foregoing analysis, we must face the fact that it would not be practical or desirable, or even possible, to codify the definition of residence for tax purposes.

 

BIBLIOGRAPHY

LEGISLATION

Civil Code of Lower Canada

Civil Code of Québec, S.Q. 1991, c.64.

Income Tax Act, R.S.C. (1985), 5^th Supp., c.1 as amended.

Taxation Act, R.S.Q., c. I-3 as amended.

Excise Tax Act, R.SC. (1985), c.E-15 as amended.

An Act respecting the Quebec Sales Tax Act, R.S.Q., c.T-01 as amended.

Interpretation Act, R.S.C., c. I-23.

 

GOVERNMENT DOCUMENTS

QUEBEC, Ministère de la Justice, Commentaires du ministre de la Justice. Le Code civil du Québec, Volume 1. Québec: Publications du Québec, 1993.

CANADA CUSTOMS AND REVENUE AGENCY, Interpretation Bulletin IT-221R3, “Determination of an Individual's Residence Status”, December 21, 2001, this Interpretation Bulletin was revised as of February 28, 2002.

REVENU QUÉBEC, Bulletin d'interprétation IMP.22-3/R1, “Determination of residence of an individual who leaves Québec and Canada”, July 31, 1990.

REVENU QUÉBEC, Bulletin d'interprétation IMP.8-3, “Deemed Residence”, July 31, 1990.

 

JURISPRUDENCE

Thomson v. MNR, [1946] C.T.C. 51 (S.C.C.).

Beament v. MNR, [1952] C.T.C. 327 (S.C.C.).

Schujahn v. MNR, [1962] C.T.C. 364 (E.C.).

Kallos v. MNR, 72 D.T.C. 1099 (T.R.B.).

Kirkby v. MNR, 72 D.T.C. 1109 (T.R.B.).

The Queen v. Reeder, [1975] C.T.C. 256 (F.C.).

Sous-Ministre du revenu du Québec v. Roy, [1979] R.D.F.Q. 37 (C.A.).

The Queen v. Bergelt, [1986] 1 C.T.C. 212 (F.C.).

Stephens v. MNR, 88 D.T.C. 1170 (T.C.C.).

Fisher v. The Queen, 95 D.T.C. 840 (T.C.C.).

Wassick v. MNR, 95 D.T.C. 19 (T.C.C.).

Touchette v. Québec (Sous-ministre du revenu), [1996] R.D.F.Q. 164 (C.Q.).

Therrien v. Pellerin, [1997] R.J.Q. 816 (C.A.).

Endres et al. v. The Queen, 98 D.T.C. 1101 (T.C.C.).

Boston v. The Queen, 98 D.T.C. 1124 (T.C.C.).

Wolf v. The Queen, No. 98-2647-IT-G (October 23, 2000) (T.C.C.).

 

MONOGRAPHS

Rijkele Betten, Income Tax Aspects of Emigration and Immigration of Individuals, Amsterdam, IBDF Publications, 1998, chap. 4.

Luc Blanchette, La résidence des individus en droit fiscal canadien et québécois, Thesis presented to the Faculty of Graduate Studies and Research, Comparative Law Institute, Faculty of Law, McGill University, 1985.

Nathan BOIDMAN, L. Frank CHOPIN and Alan W. GRANWELL, The New U.S. Residency Rules for Canadians: Tax Considerations, CCH Canadian, 1985, chap. 2.

Jean Carbonnier, Droit civil; 1- Les Personnes [civil law; 1 - Persons], Paris, Presses Universitaires de France, 1996, pp. 83-99.

Edith Deleury and Dominique Goubau, Le droit des personnes physiques [the law of natural persons], 2^nd edition, Cowansville, Éd. Yvon Blais, 1997, chap. III.

Guy Lord, Jacques Sasseville and Diane Bruneau, Les principes de l’imposition au Canada [principles of taxation in Canada], Montreal, Éd. Wilson & Lafleur, 1999, pp. 42-59.

Guide de l’Impôt canadien [Canada tax guide], 47^th ed. 2000, Farnham, Publications CCH Ltd.

 

PROFESSIONAL REVIEWS, SYMPOSIUMS AND CONFERENCES

Alain-François BISSON, “La Disposition préliminaire du Code Civil du Québec” [the preliminary provision of the Civil Code of Québec], (1999), vol. 44, No. 1 McGill L.R. 539-565.

Jean-Maurice BRISSON, “L’impact du Civil Code du Québec sur le droit fédéral: une problématique” [the impact of the Civil Code of Québec on federal law:  a problem] (1992), vol. 52, C.B.R.345-361.

Jean-Maurice BRISSON and André MOREL, “Droit fédéral et droit civil: complémentarité, dissociation” [federal and civil law:  complementarity, dissociation], (1996), vol. 75, C.B.R. 297-332.

Peter A. Cumming, “Criteria for the linkage between the act subject to taxation and the taxpayer (nationality, domicile or residence or source of taxation)”, (1994) Droit Contemporain 822-844.

Elise DUBÉ, “Notions de droit international privé”, in Conference No. 5, September 93, Montreal, Association de planification fiscale et financière, 1993, p. 5.

John V. HALPERN, “Residence or Domicile?: A state of mind” (1993), 41 Canadian Tax Journal 129-134.

G. McGREGOR, “Domicile Tests for Residence” (1972), 20 Canadian Tax Journal 125-127.

Pierre LESSARD and André MORISSETTE, “The New Civil Code of Québec”, in 1993 Conference Report, Toronto, Canadian Tax Foundation, 1993, pp. 51:1-90.

André PARADIS, “Consequences fiscales de la Réforme du Code civil”, in Congrès 92, Montreal, Association de planification fiscale et financière, 1992, pp. 42-43.

---