Date: 19981114
Docket: 96-1024-IT-I
BETWEEN:
ROGER GUPTA,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
For the Appellant: The Appellant himself
Counsel for the Respondent: Eric Douglas
Reasons for Judgment
(Delivered orally from the Bench at Toronto, Ontario, on September 9, 1998)
Mogan, J.T.C.C.
[1] The taxation years under appeal are 1988, 1989, 1990, 1991, 1992, 1993 and 1994. The primary issue is whether the Appellant was resident in Canada during those years. The Appellant claims that he was resident in Canada but the assessments under appeal were issued on the basis that the Appellant was not resident in Canada. The Appellant has elected the informal procedure.
[2] For a number of years, the Appellant was a citizen and resident of the United States of America living at Munroe Falls, Ohio. In 1988, he learned that there was what he called "a real estate boom" in Canada and he decided to come and see if he could participate in that boom. There was, as the records in the late 1980s would indicate, a very significant increase in the values of real estate in Canada in general and, in particular, in Southern Ontario.
[3] The Appellant came to Canada in 1988 and applied for landed immigrant status. He also brought some capital and engaged in a number of significant real estate transactions with a view to investing in residential real estate in Southern Ontario. Exhibit A-3 refers to four properties which I have concluded are the only properties in which he invested. They are as follows.
- a single family dwelling at 396 Commonwealth Circle in Mississauga, which was purchased at a price of $259,000 on May 19, 1989.
- a condominium unit at 1908-195 Wynford Drive, North York on which he made a down payment.
- two residential houses which were under construction in Georgetown on which the Appellant made down payments.
- an agreement to purchase a house at 2230 Mississauga Road, Mississauga at a price of $750,000 on which the Appellant made a down payment of only $5,000 although the agreement of purchase and sale which was produced in Court indicated that the down payment was actually $50,000. The Appellant's evidence is that, notwithstanding the conditions in the Agreement of Purchase and Sale, he made a down payment of only $5,000 when he entered into the agreement.
[4] The real estate boom which brought the Appellant to Canada seems to have peaked just about the time he arrived in 1988/1989 because, in 1989, the residential real estate market in Southern Ontario went into a steep decline. The properties which the Appellant had agreed to purchase ended up having a value significantly less than his equity in the agreements. In other words, if he had gone ahead and paid the balance of the purchase price, his total cost would have exceeded the value of the property.
[5] Under the above circumstances, the Appellant simply backed away from the transactions except for 396 Commonwealth Circle which was an outright purchase by him. With regard to condominium 1908-195 Wynford Drive, the Appellant attempted either to rent or to sell it but there were no offers at his price and so he ended up losing a deposit of $15,000. He also paid damages of approximately $5,000 for breach of contract as a result of his failure to close that transaction. With regard to the two properties in Georgetown, he again walked away from that transaction and lost deposits of $15,000 on each of those houses which were under construction, for a total loss of $30,000. He also paid damages in the net amount of $10,000 for breach of contract with respect to his failure to close that transaction. For the fourth property at 2230 Mississauga Road, the Appellant attempted to rent it but could not find a tenant. Since its value had dropped, he decided not to close the transaction and so he forfeited the $5,000 down payment.
[6] The above losses were unfortunate for the Appellant because he seems to have entered into these agreements at the peak of the market which then trailed off and went into a significant decline before he had an opportunity to close the purchase transactions, own the properties and use them for any revenue-producing purposes. He stated in his oral evidence that he was not buying them for resale and that he really did intend to hold these properties. He thought they would be good long-term investments if the real estate market had continued its upward spiral.
[7] The above is a summary of the four real estate transactions in which the Appellant participated. I would have to describe his activity coming to Canada in 1988 and 1989 as aggressive because he saw what he thought were opportunities. He acted on his own judgment and entered into agreements to purchase four different properties in four different locations being the condominium in North York, the two houses under construction in Georgetown, a completed residence on Mississauga Road and a newer residence at Commonwealth Circle.
[8] The Appellant also brought certain amounts of cash to Canada in the form of liquidity because he purchased securities in Canada through two well-known brokerage firms, i.e. Dominion Securities and ScotiaMcLeod. He stated that he purchased interest-bearing securities, whether they were bonds or treasury bills or some form of debt obligation issued by public corporations or guaranteed investment certificates issued by financial institutions. The evidence is that, from time to time, the Appellant had significant investment income apart from whatever rent he might have received from the condominium at Commonwealth Circle.
[9] Notwithstanding this activity in Canada, the Appellant continued to reside in his permanent home at 225 Silver Valley Boulevard, Munroe Falls, Ohio, which he stated is the home that he and his wife built and owned from around 1987/1988. Apparently, they lived in that dwelling at all relevant times and, indeed, the Appellant acknowledged during this hearing that he still lived at 225 Silver Valley Boulevard. He also maintained that he had a residence in Canada at 396 Commonwealth Circle, Mississauga. He stated that when that property was purchased, the basement was not finished and he lived in part of the main floor of the house. However, he paid a significant amount of money to have the basement finished and then maintained a dwelling there for himself where he resided throughout his ownership of the house from May 1989 until it was sold in October 1994. Therefore, he stated that he maintained a residence at 396 Commonwealth Circle, Mississauga for approximately five and one-half years. I am satisfied on the evidence that the Appellant did maintain some kind of dwelling in Mississauga at 396 Commonwealth Circle, but I am not certain that the maintenance of that dwelling was adequate to give him residence in Canada.
[10] The Appellant and his wife are both retired professors and they have three adult children who are living in different parts of the United States. Apparently, after the Appellant retired, he engaged in what he called a "hobby" which consisted of the construction and sale of houses in the United States. Therefore, if he did that after his retirement and before coming to Canada, one can imagine how he would be attracted to the very hot real estate market which Ontario enjoyed in the late 1980s.
[11] Notwithstanding his investments and what I would call commercial transactions in Canada, the Appellant made no attempt to file any income tax returns in Canada or take any steps to cause taxes to be paid in Canada. Although he claims to have had a residence at 396 Commonwealth Circle, he appears to have maintained a mailing address at a different location in Mississauga because Exhibits R-16 and R-18 are Revenue Canada T5 forms showing investment income issued mainly from the Bank of Montreal addressed to the Appellant at 1635 Wembury Road, Mississauga.
[12] When the Appellant was asked in cross-examination why he would not have his mail sent to the address where he claimed to have a residence, he said that he was frequently not at 396 Commonwealth Circle and that there was no person at that address whom he regarded as a responsible person who could receive and either hold or redirect his mail. Therefore, he had the other address at 1635 Wembury Road which, without any detailed evidence, was an address from which mail could be redirected to him.
[13] I have to draw the inference from Exhibits R-16 and R-18 that the address at Wembury Road was the only address known to the Bank of Montreal, Canada Trust, RBC Dominion Securities and Royal Trust Company since all T3 and/or T5 information slips were issued to Wembury Road. However, RT Canadian Money Market Fund issued a T3 form showing trust income to Roger and Kanta Gupta at 225 Silver Valley Boulevard, Munroe Falls, Ohio. That is the only evidence that a Canadian issuer of T3 or T5 forms was using an address of the Appellant in Ohio. The result is that there was no tax withheld by the issuers of the income forms because the issuers believed they were paying interest to a resident in Canada because the address on the forms was in Mississauga. The Appellant was not filing income tax returns in Canada, and so no income tax was being paid in Canada on his Canadian investment income.
[14] The fact that no tax was paid in Canada on the Appellant's Canadian investment income led to a chain of events which was described in some detail by both the Appellant and Daniel Byrne, a technical officer for Revenue Canada. As described by Mr. Byrne, although Revenue Canada knew nothing about the Appellant, it does have a program in effect requiring those corporations and financial institutions which issue T5 information forms to send a copy of the form to the recipient and a copy to Revenue Canada. I assume from Mr. Byrne's evidence that there is some kind of matching process in which the T5 forms are matched against the person whose name appears on them to ensure that the income is reported. When Revenue Canada attempted to match the T5 forms issued to the Appellant at Wembury Road, Mississauga, there were no income tax returns to match against. Therefore, a district taxation office sent the information to the non-resident compliance division of Revenue Canada in Ottawa. This division deals with persons who are not resident in Canada and who may not be paying tax either by withholding tax or otherwise on income which was sourced in Canada.
[15] Mr. Byrne sent a letter in late 1994 to the Appellant, more than likely to 1635 Wembury Road but the letter was returned. He then made inquiries by telephone and called the Appellant at his home in Ohio. A conversation took place with the result that Revenue Canada (specifically, Mr. Byrne) sent to the Appellant form NR74, Determination of Residency Status (Entering Canada), which form was entered as Exhibit R-7. Mr. Byrne stated that there was a corresponding form for determining residency status when a person was leaving Canada. He was a compliance officer with Revenue Canada and he dealt with non-resident persons. When the forms were mailed, most persons would fill them out and file them either for entering into Canada or for departing Canada. He said that most of the time, after making initial contact, the appropriate form would be sent to people, filled out, filed and then Revenue Canada would make a determination consistent with the information on the form.
[16] The Appellant completed the Determination form (Exhibit R-7) on January 5, 1995 and sent it to Revenue Canada with a covering letter dated January 7, 1995 (Exhibit R-15). The form has about seven or eight boxes of information, some of which are in the form of questions. The Appellant answered all the questions, provided the requested information and sent it back to Revenue Canada with the covering letter.
[17] Revenue Canada acted on the information in this form; concluded that the Appellant was not resident in Canada; and on that basis, issued a series of assessments to the Appellant treating him as a non-resident. The Appellant claims that, in the course of his discussions with Mr. Byrne, he was asked to file tax returns in Canada and he was also asked to forward copies of his US income tax returns for the same years which were under review by Revenue Canada. The Appellant states that he was totally cooperative with the Revenue Canada authorities and provided both those sets of documents. He filed income tax returns for the years 1989 to 1994 inclusive which are entered as Exhibits R-1 to R-6, respectively. He also forwarded copies of his US income tax returns for the years 1988 to 1992, inclusive which are entered as Exhibits R-8 to R-12, respectively. Not surprisingly, the address for the Appellant on the US tax returns is 225 Silver Valley Boulevard, Munroe Falls, Ohio. It is also noted that in the United States, husband and wife file joint returns.
[18] The returns which the Appellant filed with Revenue Canada also show his address as being 225 Silver Valley Boulevard, Munroe Falls, Ohio. Those returns were filed sometime in the winter of 1994/1995 when the Appellant was having discussions with Mr. Byrne, and he no longer had a Canadian address at 396 Commonwealth Circle (which he claimed he was using as a residence) because that property was sold in October 1994. For whatever reason, the Appellant was no longer using the address at 1635 Wembury Road because that is where Mr. Byrne first sent his letter or inquiry, and the letter was returned. The Appellant claims that he was intimidated by Mr. Byrne and that his rights as a taxpayer were not respected. In argument, he went on to say that he thought that the whole conduct of Revenue Canada was an obstruction of justice.
[19] The Appellant obviously put a great deal of weight on his discussions with Mr. Byrne because he caused Mr. Byrne to come from Ottawa to Toronto as a witness for the hearing of these appeals. The Appellant is not a lawyer but he conducted his own hearing and, at one time in questioning Mr. Byrne, suggested that Mr. Byrne was a hostile witness. I invited the Appellant to cross-examine Mr. Byrne if he felt that way but I did not regard Mr. Byrne as a hostile witness. He may not have been giving the answers that the Appellant was hoping he would hear, but I thought Mr. Byrne conducted himself in a professional manner. He described what the procedure was at Revenue Canada in quite clinical language, the kind of verbal exchanges he had with the Appellant, trying to find out if he was a resident and trying to get certain documents.
[20] The Appellant seems to think that he was intimidated or threatened to provide documents like copies of Canadian income tax returns and copies of his US income tax returns, but I find no evidence to support any claim by the Appellant that he has been threatened or intimidated or that the conduct of Revenue Canada amounted to an obstruction of justice. There is no evidence to support those claims by the Appellant.
[21] The Appellant also claimed that form NR74 (Exhibit R-7) has been a great burden to him. I can understand his feeling that way because he completed the form himself and the answers which he gave undermine the claim he now makes in Court that he had a residence in Canada throughout the relevant years. Indeed, the answers he gave in that form, if taken at face value, indicate that the Appellant was not resident at any time in Canada from 1989 to 1994. It is useful to summarize his answers in Exhibit R-7.
[22] Box one of the form contains the usual questions for the surname and first name of the taxpayer, the Canadian address, which the Appellant completed as being 1635 Wembury Road, Mississauga. This form was filled out in January 1995 and the Appellant added to the question: "It is not my residential address, just a mail redirection address". The permanent residential address is shown as 225 Silver Valley Boulevard, Munroe Falls, Ohio. He shows his citizenship as US.
[23] Box two of the form requires answers for the date you entered Canada, how long you will be living in Canada and when you will leave. The Appellant's reply to all three questions was: "Lured by real estate boom in 1988-89 in Toronto, I visited Canada often to invest. When the boom burst, I suffered huge losses in the real estate and 30% depreciation of currency investment". Box three asks: Which of the following situations apply to you? And the Appellant has marked with an 'x' the following answer: "You are a resident of another country who will be temporarily living in Canada for 3/4 days". The Appellant has also added at the end of that answer the following: "Collectively no more than 20 days in any year". Also, the Appellant has included an 'x' in the box stating "You have landed immigrant status" which apparently he has. He said in evidence that he acquired landed immigrant status in 1989 and 1990 after applying for it in 1988.
[24] Box four says: "Please indicate the reasons you were living outside of Canada, and the Appellant has put an 'x' opposite the word "Other" and he has typed in "I have a permanent home in the US". Box five box asks: "Were you a resident in Canada in a previous year?" and the Appellant replies "No". Box six says: "Please indicate which of the following ties you are going to have in Canada during the year" and the only one the Appellant has marked is: "You will have investments in Canada". In answer to "Please provide details of chequing and savings accounts, pension plans and retirement plans, property and shares in companies", the Appellant has replied "I have savings accounts with TD Bank and Canada Trust. If investment opportunities present again in Canada, I might consider investing again in Canada".
[25] Box seven requests what are your residential ties in another country in order to determine your residency status and the Appellant has replied under the following: "If you are married and your spouse will not live in Canada, please provide the name, citizenship and current address of your legal or common law spouse and the reason your spouse will not live in Canada". "My wife, Kanta and I maintain and own a home in the US. I visit Canada on many occasions for a few days at a time". He also provides the following information: "My cars and all my personal belongings are in the US. At all times, I only have had a US driver's license. Medicare and Aetna Life. Casualty Insurance Company, Columbus for medical and hospitalization coverage. My savings and chequing accounts are with US banks". And lastly to the following question: "Are you considered to be a resident of another country"? he has typed in "Germany and India".
[26] The last request in the form is: "Please provide details of the tax the other country requires you to pay and confirmation of the taxing authority in that country that your income is subject to tax". And the Appellant has replied: "US Internal Revenue Service". Exhibit R-7 is very prejudicial to the Appellant and, as stated above, taken at face value, undermines his claim to be resident in Canada. I cannot, however, take the answers at face value because the form was filled out in January 1995 when the Appellant, by his own admission, had sold all of his real property in Canada. He had clearly left Canada but he filled out a form which was designed to be filled out by a person entering Canada. Some of the questions are phrased in a tense that makes it difficult for the answers to apply to 1989 to 1992, when the form is completed in January 1995.
[27] On the other hand, there are some answers in the form which clearly cry out for explanation or elaboration by the Appellant. In particular, he talks about visiting Canada often to invest and staying no more than 20 days in a year. To counteract that, the Appellant entered Exhibit A-5 being certain pages from passbooks at Canada Trust and the Toronto-Dominion Bank which show deposits and withdrawals at various dates in the period from December 1990 to February 1992 for Canada Trust and from August 1991 to August 1993 for the Toronto-Dominion Bank.
[28] The inference which the Appellant wishes me to draw is that every time there was a banking transaction, he must have been in Canada to effect it. That would not necessarily apply to a withdrawal by cheque because he could have mailed from Ohio a cheque payable to some person in Canada. Nor would it necessarily apply to a deposit because he could have deposited a cheque or other amount by mail. Exhibit A-5 does show intermittent transactions over a two or three year period at Canada Trust and the Toronto-Dominion Bank.
[29] The question is whether there is enough evidence to find that the Appellant was resident in Canada throughout these years. There is no doubt that he was resident in the United States and that his permanent address was in Ohio. There is a great deal of jurisprudence to the effect that a person can have dual residency. A person can be resident in two or more countries. Acknowledging that the Appellant was resident in Ohio, was he resident in Canada at the same time?
[30] I refer to the decision of the Supreme Court of Canada in Thomson v. M.N.R., 2 DTC 812, which was rendered in January 1946. In Canadian jurisprudence, I regard the Thomson case as the cornerstone of the law on individual residency because there are two or three judgments from different distinguished judges, each describing a concept of residence. Their judgments have not been modified or repudiated or qualified. Mr. Justice Estey stated at page 813:
... 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. ...
Applying those words to the Appellant for the years under appeal, I have no difficulty in saying that he, in the settled routine of his life, regularly or normally or customarily lived in Ohio, and he sojourned or visited in Canada. Also, in Thomson, Mr. Justice Rand stated at page 816:
But in the different situations of so-called "permanent residence", "temporary residence", "ordinary residence", "principal residence" and the like, the adjectives do not affect the fact that there is in all cases residence; and that quality is chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories and social relations, interests and conveniences at or in the place in question. ...
I find nothing in the Appellant's description of his activities in Canada (and I put them at no higher plane than that) which would indicate that he is resident in Canada. Referring again to the words of Mr. Justice Rand, there was very little evidence that the Appellant, in mind and fact, had settled into or maintained or centralized his ordinary mode of living in Canada with its accessories and social relations, interests and conveniences.
[31] When the Appellant was cross-examined, he said that he did know some Sikh gentlemen who were friends and that he did have an association with a Sikh or Hindu temple but he could not remember where the temple was. He also said that at no time did any of his children ever come to Canada. In other words, there is no evidence that the Appellant and his wife maintained a home here, and I use the word "home" as distinct from "residence" because it seems to me that residence in a legal sense is dependent upon what I would call "home" in a domestic sense, where a person normally lives, where he joins clubs, participates in a religious community, and if he has small children, where the children reside, where they are going to their primary school, etc. There is no evidence that the Appellant and his wife ever lived in that mode or in that style in Canada.
[32] Therefore, I find that the Appellant was not resident in Canada at any relevant time. If I had any doubts in this regard (and I have no doubts), I would resolve them against the Appellant because there were inconsistencies in his evidence that were simply not reconciled. Specifically, Exhibit R-4 is a copy of his Canadian income tax return for 1992. When the Appellant filed it, he had obviously a copy of his 1992 US income tax return. He shows interest income in Canada of $798 and yet in Exhibit R-12 which is his US income tax return for 1992, he shows interest income from Canada of $14,152. The gap is really astonishing. He was cross-examined about this and questioned whether he might have also included some dividends but the schedule attached to his US tax return shows it is only Canadian sourced income and not dividends. Also, there were no expenses claimed by the Appellant which could possibly reduce his Canadian source interest income from $14,152 to $798. This is an unexplained lack of consistency, and I assume that when he was preparing Exhibit R-4 in the winter of 1994/1995, he did not reconcile it with his 1992 US income tax return which should have been filed after the end of the 1992 calendar year.
[33] The other lack of consistency is the letter which the Appellant sent to Revenue Canada enclosing the form NR74 which he repudiates in Court. He claims that he was intimidated into completing it, threatened and enticed to say things such as that he was not resident in Canada when he really was. I do not put much weight in that because it is totally self-serving. Nothing in the answers given by Mr. Byrne support that kind of suggestion. Also, the answers in Exhibit R-7 which are detrimental to the Appellant are consistent with his covering letter (Exhibit R-15). That letter is about 396 Commonwealth Circle, Mississauga and the Appellant states:
Lured by the real estate boom in 1987-88, I started visiting Canada only for short stays of 3/4 days at a time to seek some good investments. I brought substantial investments to Canada. As the boom burst, my dream investments withered. I lost in excess of $150,000 + loss in currency depreciation in Canada since then. Some of these losses are shown in the attached statements of my income and losses for the years 1989 to 1993.
That statement volunteered in a letter is simply in conflict with the Appellant's very self-serving assertions in Court that he maintained a residence here, that he really did live in the basement at 396 Commonwealth Circle and, therefore, should be regarded as a resident in Canada. I found the Appellant too prone to include in his argument words and phrases such as "intimidated", "threatened", "obstruction of justice," etc., to explain away the inconsistencies in his answers, and why he had in his mind given some of these answers only to please Revenue Canada. I am more inclined to accept them as actual statements of fact, however detrimental to the Appellant's appeal in this Court, made at the time because he thought they were true at the time. Having found against the Appellant on the issue of his being a resident or non-resident of Canada, I find that he was not a resident in Canada at any relevant time.
[34] A further question is whether any of the income he derived was business income which would not give rise to withholding tax or income from property which would trigger withholding tax. Before dealing with that question, I should trace briefly what I understand to be the assessment history of the Appellant. Apparently, in October 1994, there was a single assessment issued to him for 1994 assessing withholding tax on some gross rents for 1994. Then, as a result of the discussions between Mr. Byrne and the Appellant and the documents which the Appellant provided to Mr. Byrne, Revenue Canada issued assessments in February 1995 levying withholding tax for the years 1988 to 1993, and apparently there was withholding tax levied on pension income, interest income, and gross rentals.
[35] The Appellant objected to those assessments and, in particular, to the fact that Canada was attempting to tax pension income. Therefore, there was a subsequent group of reassessments issued in May 1996 which had the effect of deleting any pension income from the withholding tax assessments. As I understand statements by counsel for the Respondent and by the Appellant, the assessments under appeal are dated May 7, 1996, which had the effect of levying a withholding tax under part XIII of the Income Tax Act on interest income and rental income from Canadian sources. It is the rental income which the Appellant has objected to because, if it is business income and not property income, there would be no withholding tax; and the Appellant could file returns reporting his business activities. The Minister issued those assessments under paragraph 227(10.1) of the Act which specifically authorizes him to assess non-resident persons for any amount payable by that person under part XIII.
[36] On the question of whether the income is from property or from business, there is no doubt in my mind that it is income from property and not a business. My decision on that issue is based on what I would call the simplistic character of the rented property. It was not a shopping centre nor a 15-story office tower in which the landlord would have to provide services to the tenants. It was not even a multiple-family building like an apartment building. It was just a single family dwelling. There is no evidence that there was anything more than one family in it, and the Appellant agreed that he did not have to provide any household services, maid services or laundering services. He just collected the rent; did some maintenance on the property; and improved the basement. When those activities were performed on the property, the Appellant was really working for himself and not the tenant. He was not providing a service to the tenant.
[37] If I had any doubts on this issue, my decision against the Appellant would be clinched by a decision of Strayer J. (as he then was) of the Trial Division of the Federal Court in Eric Burri in his capacity as a director of New Park Apartments Limited at the time of its dissolution v, The Queen, 85 DTC 5287. The issue was whether income derived from a significant apartment building was business income or investment income. Mr. Justice Strayer decided that it was investment income from property and I quote from page 5289:
... The services which they provided to occupants were of a very limited nature and typical of what any owner of a modern apartment building would expect to have to provide. As such they must be seen as incidental to the making of revenue from property through the earning of rent. The provision of stoves and refrigerators is not only very common but is to some extent a means of protection of the building from undue wear and tear. It is to be noted that the owner in each case did not provide laundry facilities as such but only rented space to concessionaires who provided the facilities. The fact that at New Park Apartments television cable service and a pool were also made available to the tenants as part of the consideration for their rent does not alter in any way the character of the income of New Park Apartments Limited: such facilities are very common in a certain class of modern apartment building and should be viewed as no more of a "service" than the provision of secure locks on the doors or electrical outlets in the walls. ...
Judge Strayer went on to find that it was income from property. I would say if the income in question in the Burri appeal was income from property where there was a significant apartment building, surely the income derived from one single family dwelling in the City of Mississauga in any of the years 1990 to 1994 would be income from property and not income from business. I find that the Appellant was not engaged in any business in Canada and that the tax which may be levied on the rental income from 396 Commonwealth Circle would be tax on income from property and not tax on business income.
[38] The appeals are dismissed.
Signed at Ottawa, Canada, this 14th day of November, 1998.
"M.A. Mogan"
J.T.C.C.