New Housing Rebate – Factors as to Intention of using property as primary residence at time of signing the agreement

Berkovich v The Queen, 2014 TCC 268

The only issue before the court was whether the Appellants were entitled to claim the HST/GST New Housing Rebate under the Excise Tax Act. This turned on the question of whether, at the time of signing the agreement of purchase and sale, they intended to purchase the unit as their primary residence.

The court reviewed the fact and identified the following relevant factors when assessing whether the requirements under paragraph 254(2)(b) were met (referring to Yang v Canada, 2009 TCC 636):

• the intention of the party as to the use of the housing unit;
• the length of stay at the new unit;
• the address used for correspondence;
• when the party moved personally compared to when their furnishings and personal property moved;
• reasons for any delay in moving;
• details of insurance coverage; and
• what happened to the former residence.

The objective factors are meant to support or refuse the stated subjective intention of the Appellant (Kukreja v Canada, 2014 TCC 56).

In this particular case the court also considered the following factors are relevant objective factors:

• The Appellants health issues;
• The Hydro usage of the property;
• Changes of Address for mailings;
• Lack contents insurance when insurance at one unit; and
• Parking spaces sufficient for vehicles owned.

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