INCOME TAX |
Income Calculation |
Deductions |
Dixon v. Canada
A-221-99
2001 FCA 216, Linden J.A.
22/6/01
6 pp.
Appeal from T.C.C.'s denial of taxpayer's claim for moving expenses under Income Tax Act, s. 62(1) when returned to live in Canada in 1994 after living, working in Texas for several years--S. 62(1) permitting deduction of moving expenses in respect of eligible relocation--S. 250 providing person deemed resident in Canada throughout taxation year if sojourned in Canada 183 days or more--Tax Court Judge correctly held taxpayer not sojourning in Canada for 183 days so as to obtain advantage of s. 250, but became resident here upon return--"Sojourn" defined in Thomson v. The Minister of National Revenue, [1946] S.C.R. 209 as "usually, casually, or intermittently visits or stays"; element of temporariness predominates--In Principles of Canadian Income Tax Law, 2nd ed. (Scarborough, Ont.: Carswell, 1997), Professors Hogg and Magee state "sojourn" meaning "something less than residence"; in most cases sojourner would stay in Canada for only short period of time--Taxpayer herein not sojourning in Canada upon return, but began to reside here, taking himself out of deeming provision, s. 250--S. 64.1 (rules for application of ss. 63, 64 where taxpayer absent from but resident in Canada) not applicable because during time absent from Canada, taxpayer not resident here--Matter for Parliament, not Court, if taxpayers returning to live in Canada from abroad should be able to deduct moving expenses--Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1, ss. 62 (as am. by S.C. 1999, c. 22, s. 17), 64.1 (as am. idem, s. 19), 250 (as am. idem, s. 82).