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applied the "tie breaker" rules of the Canada Convention that, as
we stated in our prior opinion, would determine petitioner's
residence for Federal income tax purposes, it is not clear that
petitioners would have established that petitioner was a
Canadian, as opposed to a U.S., resident during 1990. Art. IV,
par. 2 of the Canada Convention provides:
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
States or in neither State, he shall be
deemed to be a resident of the Contracting
State with which his personal and economic
relations are closer ([center] of vital
interests);
(b) If the Contracting State in which he
has his [center] of vital interests cannot be
determined, 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
States or in neither State, he shall be
deemed to be a resident of the Contracting
State of which he is a citizen; and
(d) If he is a citizen of both States or
of neither of them, the competent authorities
of the Contracting States shall settle the
question by mutual agreement.
Accordingly, the Convention provision would require a
decision as to whether petitioner had a permanent home available
to him in either the United States or Canada, or both of them,
during 1990. The Model Double Taxation Convention on Income and
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