Income Tax
Non-Residents
Appeal from Federal Court decision (2007 FC 1071) dismissing application for judicial review, mandamus to have residence of Trust determined pursuant to para. 4 of Art. IV of Convention Between Canada and The United States of America With Respect to Taxes on Income and on Capital (Sch. 1 to Canada-United States Tax Convention Act, 1984, S.C. 1984, c. 20) because time-barred, premature—As appellant’s application attack on Canada Revenue Agency’s ongoing failure to perform statutory duty, not subject to 30-day limitation under Federal Courts Act, R.S.C., 1985, c. F-7, s. 18.1(2)—Applications Judge not overlooking evidence in holding appellant seeking relief under proposed rather than current Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1, s. 94—No basis for invoking Art. IV(4) of Convention with respect to current s. 94—As no existing liability to tax under current s. 94, appellant Trust not resident of Canada pursuant to Convention, Art. IV(1), no dual residency issue arises under Art. IV(4)—Appeal dismissed.
Perry v. M.N.R. (A-503-07, 2008 FCA 260, Noël J.A., judgment dated September 15, 2008, 9 pp.)