Am I a Tax Resident in Canada or China?

A person who is a Canadian tax resident must pay income tax on his/her worldwide income.

It is important to note that an individual can be tax resident in more than one country.  When this occurs, credits are generally available for any income taxes paid in another jurisdiction.  Nonetheless, because Canada’s taxes are higher than in many other nations, Canadian tax residents are often required to pay taxes on income earned outside of Canada.

However, Canada has entered into numerous tax agreements which provide that an individual cannot be tax resident in both countries which are a party to the treaty. Article 4 of the Canada-China Income Tax Agreement provides that an individual can only be tax resident in either China or Canada.

From an immigration perspective, this has huge implications. It means that an individual can immigrate to Canada and obtain permanent resident status, maintain that permanent resident status, yet not be a Canadian tax resident.

Article 4 contains a series of tie-breaker rules to determine tax residency when an individual has ties to both China and Canada. It states that:

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

2. Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then his status shall be determined as follows:

a) he shall be deemed to be a resident of the Contracting State in which he has a permanent home available to him; if he has a permanent home available to him in both Contracting States, he shall be deemed to be a resident of the Contracting State with which his personal and economic relations are closer (centre of vital interests);

b) if the Contracting State in which he has his centre of vital interests cannot be determined, or if he has not a permanent home available to him in either Contracting State, he shall be deemed to be a resident of the Contracting State in which he has an habitual abode;

c) if he has an habitual abode in both Contracting States or in neither of them, he shall be deemed to be a resident of the Contracting State of which he is a national;

d) if he is a national of both Contracting States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement.

3. Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, the competent authorities of the Contracting States shall by mutual agreement endeavour to settle the question and to determine the mode of application of this Agreement to such person.

Any potential immigrant from China should read Article 4 extremely carefully.  The potential exists for huge tax savings without compromising your immigration status, or violating Canadian law.


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