Stephen D. Podd - Page 64

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          [Convention Between the United States of America and Canada with            
          Respect to Taxes on Income and on Capital, Sept. 26, 1980, art. IV,         
          par. 2, T.I.A.S. No. 11,087, 1986-2 C.B. 258, 259, as amended by            
          protocol, June 14, 1983, 1986-2 C.B. 270, and by second protocol,           
          Mar. 28, 1984, 1986-2 C.B. 274 (hereinafter, Canada Convention).]           
               Paragraph 1 of the treaty defines the term "resident" as               
          follows:                                                                    
               1.  For the purposes of this Convention, the term "resident of         
          a Contracting State" means any person who, under the laws of that           
          State, is liable to tax therein by reason of his domicile,                  
          residence, place of management, place of incorporation or any other         
          criterion of a similar nature, but in the case of an estate or              
          trust, only to the extent that income derived by such estate or             
          trust is liable to tax in that State, either in its hands or in the         
          hands of its beneficiaries.  [Canada Convention, art. IV, par. 1.]16        
               Consequently, for the "tie-breaker" rules to apply, it must be         
          shown that, in addition to being a resident of the United States,           
          Victor, Jr. also is treated as a Canadian resident under Canadian           
          law for the 1990 taxable year.  Victor, Jr. has introduced evidence         
          tending to show his physical, social, and personal nexus with               
          Canada.  Neither party, however, has introduced any evidence of the         


          16   On Aug. 31, 1994, the United States and Canada signed a                
          third protocol to the treaty.  A revised protocol was signed by             
          the United States and Canada on Mar. 17, 1995, and replaced the             
          protocol signed during Aug. 1994.  The revised protocol modified            
          the definition of resident contained in article IV.  The new                
          definition, however, is not applicable to the year at issue.                
               A fourth protocol between the United States and Canada was             
          signed in Ottawa during July 1997.  On June 8, 1998, the IRS                
          announced that the United States recently exchanged instruments             
          of ratification for this protocol with Canada.  Announcement 98-            
          47, 1998-23 I.R.B. 5 (June 8, 1998).                                        








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