# RESIDENT or NON-RESIDENT who is PR of CANADA



## Linsay (Apr 8, 2013)

We became Canadian PR in Dec. 2010 and immediately returned to India. Subsequently I came to Canada at end of August 2011, while my spouse was still in India. She came to Canada in Nov 2012. As a permanent resident of Canada she could be considered resident of
Canada as CRA guide says (http://www.cra-arc.gc.ca/tx/nnrsdnts/cmmn/rsdncy-eng.html)

The residential ties you have or establish in Canada are a major factor in determining residence status. Residential ties to Canada include:

•a home in Canada (not applicable);
*•a spouse or common-law partner or dependants in Canada (applicable as I was in Canada);*

So she will be considered resident of Canada since August 2011.

However, CRA also says

Residential ties that you maintain or establish in another country may also be relevant.

Now when I read Canada and India Tax Treaty it says:

ARTICLE 4

Residence

1. For the purposes of this Agreement, the term “resident of a Contracting State” 
means any person who, under the laws of that State, is liable to tax therein by 
reason of his domicile, residence, place of management or any other criterion of 
a similar nature. 

By Virtue of Above statement she is resident of India (as per tax rules of India) and she paid taxes in India in 2011 and lived entirely in India even though she was Permanent Resident of Canada and her spouse is in Canada.

I feel first situation is generic and applicable to all but one should see the Tax treaty if Canada has one to determine exact residency.

I tried to call several CRA agents even at internatonal and non-resident department but havent got satisfactory answer yet.

I FEEL SHE SHOULD BE CONSIDERED NON-RESIDENT OF CANADA FOR TAX PURPOSE EVEN THOUGH SHE WAS PR OF CANADA AND HER SPOUSE WAS IN CANADA BECAUSE AS PER TAX TREATY SHE IS RESIDENT OF INDIA. She should be considered resident of Canada when she entered Canada.

PLEASE ADVISE


----------



## MoneyGal (Apr 24, 2009)

Linsay. It does NOT MATTER what anyone in this thread thinks or feels, including you. CRA makes the determination of residency and it is a determination of fact. 

What you need to do is fill out this form: http://www.cra-arc.gc.ca/E/pbg/tf/nr74/nr74-12e.pdf and mail it to the International Tax Services Office (address on form) and request a determination of residency from CRA for the years in question.


----------



## Linsay (Apr 8, 2013)

MoneyGal said:


> Linsay. It does NOT MATTER what anyone in this thread thinks or feels, including you. CRA makes the determination of residency and it is a determination of fact.
> 
> What you need to do is fill out this form: http://www.cra-arc.gc.ca/E/pbg/tf/nr74/nr74-12e.pdf and mail it to the International Tax Services Office (address on form) and request a determination of residency from CRA for the years in question.


MoneyGal thanks for the reply. I have seen the form but my basic question is if we are asking opinion on her residency in 2011 then what do we fill in Column "When you entered Canada" because she never entered Canada in 2011. We can apply for the year 2012 when she entered Canada, but then question that her spouse was in Canada since Aug 2011 remains unanswered.

My problem is we filed 2011 tax returns and CCTB thinking that she is resident since 2011 and 2012 tax returns we mentioned that she entered Canada in 2012. Also, I called CRA and told them that I have made mistake in 2011 and CCTB (as I thought she is resident of Canada since 2012). They have put note on our file regarding this

Do you think I should fill NR74 now or wait till CRA assess 2012 tax returns. 

Do you think this could potentially be a criminal case?


----------



## MoneyGal (Apr 24, 2009)

it's not criminal; criminal fraud requires an intent to defraud.


----------



## Linsay (Apr 8, 2013)

MoneyGal,

This is huge relief to me. Cant think how I can thank you. Anyway, thanks for your reply. Do you think I should file NR74 right away or wait till they make 2012 assesement.


----------



## kcowan (Jul 1, 2010)

I would wait. Only you know when you actually became aware.


----------

