Property owner and his wife were citizens of United Kingdom (U.K.) who sold their U.K. home and came to Canada, with their passports stamped for admission for six months. Owner entered into agreement to purchase newly built home in Canada and, immediately upon closing, moved in. Before expiry of six months, owner and wife left Canada briefly and returned, receiving stamps for further six month stay. Owner’s three children were born in Canada and family continued practice of regular travel and re-entry. Owner’s application for new housing rebate under s. 254(2) of Excise Tax Act was refused on basis house could only be considered secondary place of residence because of owner’s visitor immigration status. Owner appealed. Appeal allowed. It was clear that owner and family had resided in house in Canada for at least ten months each year since its purchase and there was no evidence that they had available to them any other place of residence anywhere in world. Requirement to be satisfied was whether housing unit was occupied as primary place of residence, which was very distinct from either buyer’s residence status in Canada for income tax law purposes or whether buyer was lawfully present or resident in Canada for immigration law purposes. Home occupied as only place of residence could not be characterized as anything other than owner’s primary place of residence. Immigration status of owner and wife as non-citizens of Canada was not relevant for new housing rebate purposes. Minister did not present any evidence on immigration law. Characterization of house did not turn on whether owner could have been subject of removal order or deportation or whether owners’ intention to use house as primary place of residence was risky plan given their immigration status as visitors. Owner intended to acquire house as sole place of residence and had used it as that ever since closing on purchase.
Parthiban v. R. (2017), 2017 CarswellNat 608, 2017 TCC 30, Patrick Boyle J. (T.C.C. [Informal Procedure])