http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/71771/index.do 
Eliyin v. The Queen (May 14, 2014 – 2014 TCC 125) was a case where the sole issue was whether the taxpayer realized a taxable capital gain of $176,000 on the disposition of a house in 2008.
[3] According to documents registered with the Land Title Office of British Columbia, the Appellant purchased the property at 24258 16th Avenue in Langley, British Columbia (the “Property”) on October 27, 2004 for $648,000. He transferred the Property to Erfan Eliyin, his son, on April 8, 2008 for $1,000,000.
[4] It was not disputed that the gain realized by the Appellant was $352,000.
[5] The Appellant did not report the sale of the Property in his 2008 tax return.
[6] It was the Appellant’s position in both his notice of objection and his notice of appeal that the Property was his principal residence and the gain which he realized on its disposition was exempt from tax. However, at the hearing of the appeal, the Appellant altered his position. He no longer argued that the Property was his principal residence. Instead, he stated that he changed the title to the Property to his son’s name but he remained the beneficial owner of the Property.
The court rejected a purported unregistered trust agreement between the taxpayer and his son dated April 8, 2008 as unreliable evidence.
The evidence was that the taxpayer lived in the residence very briefly, if at all:
[13] When the he purchased the Property, the Appellant lived at 2295 Parkway Blvd., Coquitlam, B.C. It was his evidence that he did not live in the housing unit on the Property in 2004 or 2005. He rented out the Property in 2006 and he reported rental income of $38,400 and rental expenses of $35,120.74 on his 2006 income tax return. The rental expenses claimed by the Appellant included the entire amount of his mortgage interest, property taxes and insurance for the year with respect to the Property. I was not told whether the Appellant claimed capital cost allowance on the housing unit on the Property. The Appellant also had a tenant for six months in 2007 but it was not reported on his income tax return for that year. He stated that he and his younger son lived in the housing unit on the Property in 2007 but he didn’t specify the length of his stay. His younger son has multiple sclerosis and they found that the Property was too remote so they moved back to Coquitlam. The Appellant gave no evidence that he resided in the housing unit in 2008.
The court concluded that the taxpayer had not established that the property was his principal residence at the time of the sale to his son in 2008:
[21] In order for the Property to qualify as the Appellant’s principal residence in 2008, the following conditions must be satisfied:
(a) He must have owned the Property in 2008;
(b) He must have ordinarily inhabited the housing unit on the Property in 2008;
(c) The Appellant must have designated the Property as his principal residence for 2008;
(d) The Appellant’s designation of the Property as a principal residence must have been made in his tax return for 2008.
[22] The Appellant met only the condition in (a). There was no evidence that he lived in the housing unit on the Property in 2008.
[23] There was no evidence from which I could conclude that the housing unit on the Property was the Appellant’s principal residence in 2008. He did not designate the Property to be his principal residence in his tax return. He did not file an election under subsection 45(3) when he allegedly changed the use of the Property from a rental property to his principal residence.
As a result the appeal was dismissed with costs.