Moving taxpayer must be ‘absent from but resident in Canada’ to get exception to ‘in Canada’ rule

Prior to February 3, 2016, taxpayer did not own property in Canada, hold employment or office in Canada, own personal possessions in Canada, or hold Canadian passport or driver’s license. Taxpayer’s entire family resided in Australia and before February 3, 2016 taxpayer was not physically present in Canada. On February 2, 2016 taxpayer entered Canada with husband with intent to stay permanently and in May taxpayer applied for permanent residence status. Taxpayer claimed $59,188 as moving expenses in her return for 2016 taxation year and Minister of National Revenue issued reassessment in which deduction for moving expenses was denied. Taxpayer appealed. Appeal dismissed. Section 62(1) of Income Tax Act provides for deductibility from specified sources of income of moving expenses paid by taxpayer in respect of “eligible relocation” as defined in s. 248(1) of Act. It was required in clear and unambiguous terms that before move taxpayer ordinarily resided at residence in Canada and that after move taxpayer ordinarily resided at residence in Canada. Exception to “in Canada” requirement was provided only if at time of move taxpayer was “absent from but resident in Canada” and at time taxpayer commenced move, she was not absent from but resident in Canada. It could not be agreed that Interpretation Bulletin IT-178R3 concealed “in Canada” requirement and even if it did not accurately or completely describe law applicable to moving expenses, it had long been established that interpretation bulletins were not binding on taxpayer, Minister or Court. Taxpayer’s move from Australia to Canada was not “eligible relocation” and moving expenses paid by taxpayer for that move were not deductible under s. 62(1).

Ellaway v. The Queen (2019), 2019 CarswellNat 2118, 2019 TCC 118, J.R. Owen J. (T.C.C. [General Procedure]).

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