Mallett v. M.N.R.
T-435-89
McGillis J.
29/9/92
6 pp.
Appeal from Tax Court's dismissal of appeal concerning deductibility of moving expenses in 1985 -- Plaintiff, public servant, living and working in Paris, France from 1982 to 1985 -- In spring of 1985, notified of transfer back to Canada -- In August married man who maintained home in England and gave up Paris apartment -- Began commuting regularly to house in England -- Household goods and personal effects shipped to Canada and placed in storage until October when moved into new home in Ottawa -- Fully reimbursed by employer for cost of moving household goods and personal effects from Paris to Ottawa -- From September to November either working in Embassy in Paris or outside Paris on temporary duty or taking annual or foreign service leave in United Kingdom -- Lived in non-commercial temporary accommodation -- Most of November spent at husband's home in England -- Never intended to live permanently in England -- Assumed duties of new position in December -- Deducted $20,024.62 as cost of moving personal effects of plaintiff and husband from England to Ottawa -- Minister disallowed deduction -- Income Tax Act, s. 62(1) permitting deduction of moving expenses incurred while moving from residence where ordinarily resided in Canada to new ordinary residence in Canada -- S. 250(1) deeming servant of Canada resident in Canada immediately prior to appointment abroad to have been resident in Canada throughout taxation year -- S. 63.1 stating where taxpayer deemed by s. 250 to be resident in Canada, s. 62(1) shall be read without reference to "in Canada" -- Only issue whether ordinarily resident in England before moving to Canada -- Appeal dismissed -- Ordinary residence meaning residence in course of customary mode of life of person concerned and contrasted with special, occasional or casual residence: Thomson v. The Minister of National Revenue, [1946] S.C.R. 209 -- Cannot have two ordinary residences at same time: Rennie, J. v. M.N.R. (1989), 90 DTC 1050 (T.C.C.) -- Plaintiff not ordinarily resident in England prior to move to Ottawa -- Resided there casually -- Income Tax Act, S.C. 1970-71-72, c. 63, ss. 62 (as am. by S.C. 1984, c. 45, s. 21), 63.1 (as enacted by S.C. 1976-77, c. 4, s. 22), 250.