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Taxation of Trusts
Jennifer Dundas, Spring 2002
CHAPTER “A” -- Introduction
Overview of estate planning. Make sure property goes where you want it to.
Purpose: to minimize taxes as log as it fits with where the testator wants the property to
go. In the meantime, can also help testator save money on taxes before death.
Relevant legislation
Intestate Succession Act: where property goes if you don‟t have a will.
Executors: collect and ensure distribution of property.
Homestead Act: takes preference over the will. Surviving spouse always entitled to live
in home as a life estate. Complications: who pays expenses and utilities? There is a
small body of law on this topic.
Marital Property Act: Part IV. Provides that the surviving spouse has a right to apply for
equalization. This can override the will.
Dependents Relief Act: Those who can demonstrate a dependence on the deceased can
seek an order for maintenance.
CHAPTER “B” – Distinguishing the Estate from a Testamentary Trust
Difficult to come to grips with what an estate is, at common law. With intestacy, the
court appoints executors (personal representatives). In Mb, all property is to be dealt with by representatives. At common law, only personalty devolves to the representative.
Realty devolves directly to the beneficiary. S. 17.3 (3) allowed realty to devolve to the
representative as well. This is an example of how the lines between an estate and a trust
are blurred. The language is common to both.
Personal representatives have to determine what the deceased owns, then pay off the
debts of the deceased. What’s left is distributed to beneficiaries. At C/L,
representatives have a year to administer the estate, plus such extra time as is reasonable.
In Mb, under s. 33(1), personal reps can take such reasonable time as is necessary.
Personal reps must act unanimously (at C/L). However, will can override by stipulating that majority decisions will prevail. (R. Haasz (1959) OWN 395 OCA).
Trustees must act unanimously (Gibb v. McMahon (1905) 9 OLR 522 OCA). Trust
document can provide majority rule: Consolidate Holding Co (SCC).
“Legacy” is used to describe a gift of money.
“Bequest”: personalty. The beneficiary is known as the “legatee”.
“Devise”: a gift of real property. The “devisee” is the recipient of real property.
“Residue”: the property that is left over after payments of debts.
“Residuary beneficiaries”: the beneficiaries who take the residue.
Creditors have preferential rights over beneficiaries.
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If estate is insolvent (debts more than assets) beneficiaries are irrelevant. Secured
creditors take first.
Solvent estate? Have to ask out-of-what are the creditors paid. A will can provide a
recipe. A general clause is almost invariably used: debts are to be paid out of residue.
See p. D25 in materials. Clause “E” p.3.
Debts are paid first out of residue, then personalty, then out of realty, at C/L.
When debts are greater than the residue, C/L provides that you can dip into
legacies and bequests. Devises follow next. (Re Kotowski (1987) 6 WWR 685
MbCA) (overruled in other respects in Canada Permanent Trustco v. Kerry (1997)
4WWR 555.)
One exception to creditors getting priority: s. 36 Wills Act. Beneficiary of
realty that has a mortgage on it takes subject to the mortgage, unless the will says
the mortgage is to be paid out first. Beneficiary then has to deal with mortgage,
and terms within it (e.g. has to be paid out on death of mortgagee). If mortgage
more than value of property, beneficiary can disclaim the gift.
Debt on personal property? At C/L the debt is paid out of residue, unless there
is not enough residue, in which case the legatee will bear the charge (Re Simpson
(1927) OLR 310 OAC).
Until estate finished being administered, beneficiaries don‟t know what they‟ll get.
Personal representatives have a fiduciary duty to beneficiaries to administer according to
will and legislation. Beneficiaries have legal rights against personal representatives. Can
go to court to get personal reps removed, or forced to do their job. Their rights are “in personam” against the representative. But there is no absolute right to the property of the
deceased. Until the will is administered, in theory it is not known what is or will be theirs.
(Commissioner of Stamp Duties – in casebook – upheld in Canada in MNR v. Fitzgerald
(1949) 1 CTC SCC).
Beneficiary cannot sell their rights. If having insolvency problems, estate cannot be
seized. That is different from the beneficiary of a true trust. Corpus of trust in true trust
is defined. Beneficiaries know what is theirs. Creditors can seize their interest. The fact
that a beneficiary has rights in rem will affect the taxation of an estate vs. taxation of a trust.
Rights of a legatee do constitute rights in rem, not only in personam. (Williams v.
Holland, 1965) 1 WLR 739.) But prof says the better view is that all beneficiaries‟ rights
are in personam. (Re Hayes (1971) 1 WLR 758 at 764).
Corollary: no one can demand assets or income from assets, as long as estate is
administered in a timely fashion (Re Neeld (1962) 2 LERS 335 Eng CA).
1994 Canadian Tax Journal, 1454-59 has a good summary of the above. (not in materials)
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A will often names same people as executors, and trustees of a testamentary trust.
When estate comes to an end, the trust starts. Executors become trustees. You can name
different people, however.
Re: McLean (1982) 135 DLR 3d 667 Ont High Court, at 669-670.
Same person person named trustee and executor. After 25 years or so wanted to resign as
trustee only – had completed the administration of the estate. Held: he could resign by
“deed”, but he also had to be removed as executor, since even though the duties had come
to an end, the position had not. Executors can only be removed by the court.
? An executor settles and winds up the estate, and can only resign or be removed
from the office by a court.
? A Trustee is an ongoing position, for the duration of the trust, and can resign
from the position.
? The two positions are distinct, and in theory one may resign as trustee while
remaining an executor.
Lecture on Trust Law for Tax Practitioners, J.M. Fuke
A trustee is not an agent of either the beneficiaries or the settlor. A Trustee has full legal
ownership of the property, and can deal with it without anyone‟s consent. If he is sued,
the person suing him is not limited to recovering only the trust property.
A contract involving trust property is still valid and enforceable, even if it contravenes
the instrument creating the trust, and trust law generally. The beneficiaries only recourse
is a personal action against the trustee. The settlor has no basis of action.
If a will instructs that money be set aside for a trust, the trust does not take form until the
fund has been created. If the trust is to be created from the residue, the trust arises only
when the residue has been ascertained.
Distinctions: trust, testamentary trust, estate. S. 108(1)
Estate is different from a testamentary trust. Broader.
A testamentary trust can refer to trust separate from the estate, or the estate itself.
S. 108(1) defines trust as including a testamentary trust.
ITA: estate considered a separate taxpayer.
Some provisions only apply to estates, some to testamentary trusts, but the word “trust”
generally is understood as referring to either testamentary trust or estate. E.g. s.
104(2) the basic provision: a trust is deemed to be an individual. It includes an estate. S.
104(1) reference to trust or estate refers to executors. Obligations of a trust fall on
executors or trustees.
[108(1)] ? def‟n of trust – includes a testamentary trust
? def‟n of testamentary trust – includes an estate
[104(2)] ? trusts (and thus estates) are deemed to be individuals
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CHAPTER “C” – Distinguishing the Four Taxpayers and the
Income Tax Returns of Each (an overview)
Filing requirements of estate and testamentary trust.
Note references in materials to terminal year, deemed income, and the deemed
provisions in s. 70.
In TP’s terminal year (Jan 1-death), have to include deemed income.
Three deeming provisions: 70(1) period amounts (2) rights and things, (5) K property.
Year end: S. 104(23) (a) An estate or testamentary trust can use any year-end it wants.
Tax return to be filed w-in 90 days.
Filing Requirements of Deceased
? returns filed by their pers rep. Use form T1.
? Taxation year = Terminal year = Jan 1 to date of death. th? If die between Jan 1 and Oct 31 – file by April 30 of next year [150(1)(d)] tha. If deceased or cohabiting spouse operated a business – file by June 15 of
next year [150(1)(d)] th? If die in Nov or Dec – file w/in 6 mths of death date or April 30 (if later) thor June 15 (if spouse or deceased operated a business) [150(1)(b)]
? Must include special things in return
a. [70(5)] ? deemed K gains
b. [70(1)] ? amts owing on periodic basis that had accrued or been earned but
had not been paid and were not due ? e.g. SALARY.
i. amts owing at death date goes to deceased‟s return, rest goes to
estate‟s return
c. [70(2)] ? value of rights and things = things that were owing AND were due,
but had not been paid at the death date (dividends declared, but unpaid; salary
owing; debts, crops in the bins, etc.) – declare value
i. executors allowed to file a separate return for these things as if they
were earned by a separate taxpayer ? gives you access to lower rates
1) get an extra married status credit [118(1)], dependents credits
[118(1)] and age credits [118(2)]
2) BUT pension credits [118(3)], charitable donation credits
[118.1] and medical expenses [118.2] must be split amongst
the 2 returns
3) AND must do so w/in 1 year of death or w/in 90 days of
receiving assessment
4) BUT [70(3), 69(1.1)] say that if these rts and things are
transferred to a benef w/in the terminal year – they are included
in benefs income when paid and no need for deceased to report
them – good if not sure if these debts will ever be paid.
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Filing Requirements of the Estate
? does not come into existence or earn income until death date
? is an individual [def‟ns of trusts and testamentary trusts - 108(1), 104(2), 104(1)]
? taxation year = death date and on
? 249(1)(b) says that the taxation year of an individual = calendar year.
BUT 104(23)(a) says that a testamentary trust (which includes an estate) can
select a year end that it sees fit as long as it is not longer than 12 mths
? 150(1)(c) says that return must be filed w/in 90 days of year end
? 104(23)(e) says that estate does not have to make quarterly pmts – but must
pay all taxes owing w/in 90 days of year end
Filing Requirements of the Testamentary Trust ? created by a Will
? comes into being when estate administered and executor transfers assets to the trustee
? are individuals under [108(1), 104(1, 2)]
? 249(1)(b) says that the taxation year of an individual = calendar year, BUT
104(23)(a) says a testamentary trust can select a year end that it sees fit (see above)
o this discretion DOES NOT APPLY TO INTER VIVOS TRUSTS!
? 150(1)(c) says that return must be filed w/in 90 days of year end.
? 104(23)(e) says that testamentary trust does not have to make quarterly pmts – but
must pay all taxes owing w/in 90 days of year end
o DOES NOT APPLY TO INTER VIVOS TRUSTS!
Filing Requirements of Beneficiaries - same as everybody else. File T1.
CHAPTER “D” – Taxation for the Terminal Year of the Deceased
“Periodic payments and the terminal year.”
S. 70(1): amounts payable on a period basis, where death occurs during a period. E.g., where interest, royalties, salaries, etc., are paid or earned on a periodic basis. TP must
include pro rata portion of the amount relative to the time during the period when death
occurred. The balance becomes payment due to or from the estate. E.g. deceased dies 21
days into a 30-day period. He reports 21/30 of the rent, salaries, etc., the estate claims
9/30. See Cullity, Chapter 2. Also, CCRA bulletin IT 410R para 7.
CCRA Bulletin IT 410R para 7: Deceased Taxpayers
7. Regardless of the method followed in computing income, subsection 70(1) brings into the income, for
the year of death of a taxpayer, the value of all amounts of interest ... that accrued but were not payable on
or before the date of death (see IT-210R). Where the provisions of subsection 70(1) apply with respect to
interest on a debt obligation, which is transferred to the estate or a beneficiary of the deceased, the
Department considers that, for the purpose of subsection 20(14), the deceased taxpayer is to be regarded as
the transferor and the estate or the beneficiary, as the case might be, is to be regarded as the transferee.
Accordingly, in these circumstances the estate or beneficiary will be entitled to the deduction under the
rules of subsection 20(14) applicable to a transferee, as described in 6 above.
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S. 70(2): The rights and things section. Deals with amounts due at point of death, and
not paid. E.g. rent in default, salary not collected. Executor can file a separate tax return
for these rights and things ? lower marginal tax rate. Unconnected to tax return of the
deceased.
These rights and things generally refer to things like dividends declared but not yet paid,
uncashed matured bond coupons, and eligible deductions from income such as “cash
basis” inventory. IF the deceased had included them, they would have been subject to the
highest marginal tax rate of his/her return.
s. 70(3) If rights and things are transferred to a beneficiary within the prescribed time, neither the estate nor the deceased declares the income. The beneficiary declares income
at the point at which he/she receives the benefit. (If not done within the prescribed time,
then the net value of the rights or things are included in the deceased‟s income.)
Deemed Disposition of Depreciable Property at Death (S. 70(5))
s. 70(5)(a) Deceased deemed to have disposed of capital property immediately before death at FMV (which can lead to a capital gain or loss). In the case of depreciable
property, there can be a recapture of the capital cost allowance, or a terminal loss.
o FMV = willing buyer and seller w/ full knowledge of the
circumstances
s. 70(5)(b) Person acquiring property b/c of death acquires it at that same FMV. Can apply to estate to take the deemed disposition, instead of the beneficiary.
The Queen v. Mastrinardi: M owned shares in M Ltd., which owned term life
insurance on M worth $500,000. (Remember that insurance goes into a capital
dividend account, and can be paid out as a capital dividend.) Without life
insurance, each share was worth $323. After he died of a heart attack while
walking down the street, the life insurance raised the value of each share to $778.
CCRA sd the capital gain to the beneficiary should be calculated using $778.
M‟s estate says $323, because no one would have paid any extra for the shares
before M‟s death because of the insurance. CCRA says “immediately before
death” means the moment before death. CCRA lost. Since then, s. 70(5)(iii) was
passed, stating that any life insurance in a company is to be valued at the cash
surrender value. Since term life insurance has no cash surrender value, it cannot
be used to calculate the value of the company before death.
S. 70(5)(c) ? Depreciable Property Exception – NO K Loss Possible If deceased had depreciable property which cost > FMV the ben getting the property is
assigned an ACB = original cost and then deemed to have taken CCA down to FMV
Example: (Grower version)
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Cost = 100, UCC = 75 and FMV = 90 would normally deem disposition at 90 ?
15 recapture for deceased.BUT recipient gets an ACB = 100 and CCA = 10, UCC
= 90
Why: if the ACB = 90 and the property went up in value they would only pay tax
on ? b/c a capital gain, yet the original owner was deducting full CCA ? so, now
if goes back up in price ? full recapture
S. 70(5)(c) (my version)
Example: ACB of $100, FMV of $90. ? $90 is the deemed disposition. The ACB
to the beneficiary would normally be $90. But CCRA under s. 70(5)(c) will give
the beneficiary a capital cost allowance of $10, and an ACB of $100, ? UCC of
$90 so if the value goes back up, it will be taxed as recapture.
You could also use a K gain exemption of the deceased and sell it to the spouse using
70(5), eat up the exemption and then spouse’s cost base ?. (Farm property)
Joint tenancy problem with 70(5): Person owns property in JT that has a FMV of
1,000,000 and an ACB = 1. Person dies and is deemed to have disposed of their ?
immediately before death and is nailed w/ a 500,000 K gain, half of which is taxable as
income. BUT the JT property is NOT part of the estate – deceased and estate have no power over that property. The deceased and her estate, however, must allocate the
deemed disposition.
Capital Cost Allowance
If you have depreciable property, you cannot claim CCA in terminal year, b/c to claim
CCA, you need assets at the end of the year. Part XI Regulation: Deduct CCA against
UCC at year end. S. 70(5) deemed disposition. Therefore, CCA all gone.
s. 248 (8) “occurrences as a consequence of death” [applies to transfers under s. 70, and for the definition of testamentary trust in 108(1)(i)]. If the terms of a testamentary
condition or instrument provide that a beneficiary can purchase the property, the ben can
do so and still claim a tax deferral under 70(6) (spousal rollover) or 70(9) (farm rollover),
as long as the person is a true beneficiary of the will. (This would appear to apply to
Schippman (below), although it appears not to have been argued.) s. 248(8)(b) anyone who takes b/c of disclaimer of surrender, takes on same basis as if
taking as a consequence of death.
s. 248(23.1) A person who takes b/c of the Marital Property Act takes on same basis as if
taking as a consequence of death.
S.248(9) imposes a 35-month limit for renunciation or disclaimer. “Disclaimer, release
or surrender”: known as “renunciation” in Canada. “I don‟t want it; take it back.”
Rollover to Spousal Trust under 70(6)
S. 70(6) Allows a rollover for property transferred to a spouse or spousal trust. If
testator was res. in Cda just prior to death, and the trust is resident in Canada, the transfer
can be dealt with as a rollover (thereby deferring taxable capital gain), within a 3-year
window (or as long as is reasonable).
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S. 70(6)(b)(i) spouse is entitled to receive all of the income of the trust, i.e. is the only
person with the legal right to enforce payment of the income.
S. 70(6)(b)(ii) No other person may obtain the use of any income or capital of the trust.
The mere possibility that someone can obtain such benefit will defeat the trust for the
purposes of s. 70(6).
? Therefore, the mere existence of a power to encroach on the capital or income of the
trust for someone other than the spouse, whether exercised or not, defeats the 70(6)
rollover benefit.
S. 70(6)(d)(ii) non-depreciable property. E.g. FMV = $100,000. ACB = $10,000. Trust gets a cost of $10,000. When sells, realizes gain of $90,000.
S. 70(6)(d)(i) depreciable property. The proceeds are the lesser of the cost or cost amount (Cost amount defined in s. 248 as undepreciated capital cost (UCC)). E.g.
$100,000 paid for building, depreciated to $10,000, FMV = $40,000. If the trust sells the
building, it is liable for re capture and capital gain. According to 70(6)(e) the difference
between $10,000 and $30,000 remains recapture for beneficiary or trust.
Absolute ownership of assets required for a 70(6) rollover to spouse or spousal trust.
Parkes v. MNR (TCC)
Deceased left shares in a co to his wife. But, he had a S/H agreement with his brother,
which required that if he died, his shares would be sold to the other S/H for $400,000,
with the proceeds going to his estate. The wife was executor. She transferred title of
shares into her name in order to get the benefits of a 70(6) rollover, and then sold them to
the S/H. This was an attempt to avoid the taxes otherwise payable under 70(5). Court sd
shares did not vest indefeasibly in her, b/c she was under an obligation to sell them. The
other S/H was a creditor of the estate, and creditors take before beneficiaries.
? A surviving spouse cannot use the preferential treatment under 70(6), and effect a
rollover, thereby avoiding the harsher treatment under 70(5), if the property in
question is legally required to be transferred to another person upon the owner’s
death.
? To take advantage of the preferential treatment of a spouse in 70(6), the property
must “vest indefeasibly” in the surviving spouse.
? Creditors take before beneficiaries.
? IT 449R bulletin: “vested indefeasibly” means unassailable right to ownership of
property. A right to ownership that cannot be defeated by another person.
Greenwood Estate v. The Queen (FCA)
Shares left to spousal trust. Deceased had agreement with sons that they would buy the
shares. Estate sold to sons. Estate dealt with transaction as a 70(6) rollover. FCA
wouldn‟t allow this for the same reasons as in Parkes.
1. A spousal trust is dealt with in the same way as a spouse, for the purposes of the
distinction between s. 70(5) and 70(6), where there is a claim on property of
deceased that supersedes that of the spouse or spousal trust.
Two preconditions for a valid spousal trust, to allow a 70(6) rollover
2. Must be resident in Canada . Deceased res. in Canada prior to trust. The
residence of the trustees determines the residence of the trust (Thibodeau).
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3. The spouse must be entitled to all income from the trust for as long as he/she is
alive. But pay attention to what the definition of income is.
Under s. 108(3), the meaning of income for purposes of 70(6) is not income as
defined by the ITA S. 3, but as defined by the C/L for purposes of trusts. (This
definition predates taxes.)
o At C/L, no part of a capital gain constitutes income.
o Stock dividends are included as income by ITA, but at C/L, they are
deemed to be capital. (Waters v. Toronto General Trusts (1959) SCC)
o Depreciable assets also handled differently. ITA can provide higher or
lower rate of depreciation than C/L, which looks only at lifespan.
Property source? Cannot take depreciation of asset into account for benefit
of capital beneficiary. K-ben is only entitled to take the depreciated asset
at its value as of transfer. Gets no consideration for the decrease in value
during the life of the trust. Re: Katz (1980)
? The ITA has many other deeming provisions. If a company winds
up, s. 84(3) and (2) deem a dividend to be the amount that
proceeds exceed PUC. This is treated as income. But at C/L, such
proceeds are treated as capital.
NB: Watch for 2 aspects of a spousal trust that may defeat 70(6)
1. A spouse must be entitled to benefit from the depreciation of property, even
though it would mean, in effect, encroaching on the entitlement of the capital
beneficiary. So, a spousal trust must not be structured to protect for the K-ben the
value of the capital asset at the time the trust is created. This would in effect
deprive the spouse of income at C/L, and defeat the spousal trust for the purposes
of 70(6). The rollover would be disallowed.
2. If a trust is set up to hold for the capital beneficiary the amount of any deemed
dividend on a windup, it will defeat the 70(6) rollover in a spousal trust.
The Guarantee Trust Co. of Canada and Johnson v. MNR (1982) Tax Review Board
Spousal trust failed b/c it provided the wife with $600/month, rather than all of the
income. Capital to be used for kids‟ education.
? A valid spousal trust must not place a ceiling on the income the spouse to which
the spouse is entitled.
? A power of encroachment for anyone except the spouse will defeat the trust.
? It doesn’t matter if trustees actually encroach on the spouse’s entitlements. The
mere existence of the power to do so defeats the trust.
Peardon v. MNR (1985) TCC
Spousal trust failed b/c income to be paid at discretion of trustees. Secondly, granaries of
farm could be used by sons without rent. This breached the requirement that no one be
able to obtain use of the capital (70(6)(b)). Grandson was to be able to use farmland, but
was to keep it in good repair. That was okay, b/c it was akin to paying rent. But the
power of the executors to allow sons to use the granaries without paying rent tainted the
trust.
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? A trust that says the trustees may use any part of the estate for the benefit of the
surviving spouse will defeat the spousal trust, b/c it does not require all of the
estate to be used for the benefit of the surviving spouse.
? If a third party is to benefit from use of capital, then there must be quid pro quo,
i.e. a benefit returned to the estate.
o This case implies that the return benefit does not have to be substantial.
Keeping a house in good repair is considered fair rent for the house.
Interest-free loans
CCRA # 9627345 (1996): If trustees are empowered to give out interest-free loans to
third parties, that disqualifies the trust.
Discretion over designation of income or capital
2001-0076845 (2001): If trustees have discretion to determine what receipts go into the
capital account, and what go into the income account, a spousal trust is defeated, b/c what
is arguably income could be placed beyond the reach of the spouse. (This is not an
uncommon clause in wills.)
Entire life
If spousal trust ends at re-marriage, then spousal trust defeated. Spouse must benefit for
entire life. (Me: why not argue that the condition should fail (as being contrary to public
policy), rather than the trust?)
Marital Property Act
Under the MPA, at least ? of one‟s assets must be left to one‟s spouse. If the will states
that these assets are to be placed into a spousal trust, then the spouse can elect to take
outright, and defeat the will.
Other ways to defeat a spousal trust IT-305R4 “A trust for the benefit of a spouse is tainted in a manner that cannot be remedied by the
method provided in subsection 70(7) if certain types of obligations are to be met out of its
property before the death of the spouse. Examples of such obligations include:
1. a contingent liability to make good any deficiency that may arise in another trust
created under the same will,
2. a liability for the payment of trustee fees applicable to other trusts under the will,
3. an obligation to pay a bequest to another beneficiary out of the property of the
estate that is held by the spouse trust, and
4. a remarriage clause which, if the spouse remarries, would result in someone other
than the spouse being entitled to income or capital of the trust before the spouse's
death.
The trust is not tainted in this manner, however, if the debt or obligation to be met is:
1. a testamentary debt [defined in 70(8)(c): a debt or obligation of the TP for which
payment was outstanding immediately before his or her death, or any amount
payable in consequence of the TP‟s death other than any amount payable to any
person as a beneficiary of the estate.]
2. a debt or obligation to the spouse,
3. a debt or obligation incurred for the benefit of the spouse, or
4. an obligation to pay fees to the trustee for the administration of the spouse trust.”