Canadians returning to Canada from USA after several yrs

dragonfly6456 · Post by **dragonfly6456** » Thu Mar 15, 2012 4:33 am

My husband went to the USA for grad school on a student visa from 2005-2009, including a one-yr extension on his student visa that allowed him to work for 1 year post graduation.

In 2009, he got his H1-B.

In 2008-2009, I went down to the USA on a student visa.

In 2010, my husband and I got married, and I applied for and got my own H1-B visa so that I could work.

In spring of 2011 we decided to move back to Canada, and were back in Canada for over 183 days (we moved back in June).

Am I correct in thinking that in the years that we were on student visas, we were residents in Canada for tax purposes, but that for the years that we were on H1-B visas, we were not? We applied for our H1-Bs with the intention of staying down there and eventually applying for a green card/citizenship.

We had no Canadian property whatesoever, only Canadian student loans, which we have continued to pay off.

Any advice would be appreciated - we feel that we have a strong case that my husband was not a resident in 2009 and 2010, and that I was not a resident in 2010, as those are the years that we were on H1-B visas (note that we each had our own H1-B, I was not under his visa).

Thank you.

nelsona · Post by **nelsona** » Thu Mar 15, 2012 7:20 am

Not sure what your question is.

For one thing, it doesn't matter how many days you were in canada in 2011, tou return in June, that is your arrival date. If it was december, that would be your arrival date.

When did eacjh of you last file a Cdn return, and what was the departure date mentionned on these returns?
How have you been filing in US all these years?

dragonfly6456 · Post by **dragonfly6456** » Thu Mar 15, 2012 8:38 am

Thanks for the quick response. My husband has not filed taxes in canada since 2008. I have not filed taxes in Canada since 2009. We have been paying resident taxes in the USA for since 2009 and 2010 respectively.

dragonfly6456 · Post by **dragonfly6456** » Thu Mar 15, 2012 8:58 am

To clarify my question -sorry - we are planning to file our 2011 taxes as residents of Canada and declare our worldwide income from the USA from 2011. We are not filing for 2010 because we were residents of the USA. Just checking that this is correct.

nelsona · Post by **nelsona** » Thu Mar 15, 2012 12:44 pm

No this is not correct. If you did not file in earlier years, this is because you took the position (rightly or wrongly) that you were no longer resident of canada (although you forgot to mention this to CRA).

If you file a full-year return in canada at this point, you would be in essence admitting that you never left, just foprgot to file . Big trouble.

So, you file a 'newcomer' return, with an arrival date.

This does not affect how you file (or filed) in US. You had options to file as a resident (even though for you weren't for some years)

Your problems are with the missing years in Canada and failure to file a departure return.