trusts and estate planning what is a trust? © 2009 clarence byrd inc.2 settlortrusteebeneficiaries...
TRANSCRIPT
Trusts And Estate Planning
What is a Trust?
© 2009 Clarence Byrd Inc. 2
Settlor Trustee Beneficiaries
Property Benefits
LegalOwnership
Legal Vs. Tax A trust is not a
separate legal entity
Income Tax Act views a trust as a separate taxable entity
© 2009 Clarence Byrd Inc. 3
Trust Vs. Estate
In general, the term “estate” refers to the property and possessions of an individual
© 2009 Clarence Byrd Inc. 4
Trust Vs. Estate ITA 104(1) In this Act, a reference to a
trust or estate (in this subdivision referred to as a “trust”) shall, ...
ITA views “estate” as the property of a deceased individual prior to its distribution
ITA requires a “trust” return for the income of an individual’s estate
© 2009 Clarence Byrd Inc. 5
Establishing a Trust
Requires three certainties
Certainty of intention
Certainty of property
Certainty of beneficiaries
© 2009 Clarence Byrd Inc. 6
Establishing a Trust
© 2009 Clarence Byrd Inc. 7
Who Cares?
If a trust is not clearly established, there may be unexpected tax consequences (e.g., income taxed in hands of settlor
rather than beneficiaries).
Non-Tax Uses Of Trusts
Administration of assets
Creditor proofing
Privacy (wills require probate, trusts do not)
Avoiding changes in beneficiaries
© 2009 Clarence Byrd Inc. 8
Classification of Personal Trusts
© 2009 Clarence Byrd Inc. 9
TestamentaryTestamentary Inter VivosInter Vivos
Spousal or common-law partner
Spousal or common-law partner
Other beneficiaries Alter ego
Joint spousal or common-law partner
Family
Taxation of Trusts
© 2009 Clarence Byrd Inc. 10
Settlor CapitalBeneficiaries
IncomeBeneficiaries
TrustProperty
Property At FMV
Property At Trust’s Cost
TrustIncome
Retained Income
(taxed in trust)
Distributed Income
(beneficiaries taxed)
Rollovers to a Trust
In general: Contributions are a disposition by the settlor at fair market value
ExceptionsSpouse or common-law
partner trustAlter ego trustJoint spouse or common-law
partner trust
© 2009 Clarence Byrd Inc. 11
Rollovers to a Trust- Spouse or Common-Law Partner
© 2009 Clarence Byrd Inc. 12
Inter Vivos
ITA 73(1.01)(c)(i) The individual's spouse or common-law partner is entitled to receive all of the income of the trust that arises before the spouse's or common-law partner's death and no person except the spouse or common-law partner may, before the spouse's or common-law partner's death, receive or otherwise obtain the use of any of the income or capital of the trust.
Spouse or Common-Law Partner
© 2009 Clarence Byrd Inc. 13
Testamentary
ITA 70(6)(b) A trust, created by the taxpayer's will, that was resident in Canada immediately after the time the property vested indefeasibly in the trust and under which
(i) the taxpayer's spouse or common-law partner is entitled to receive all of the income of the trust that arises before the spouse's or common-law partner's death, and
(ii) no person except the spouse or common-law partner may, before the spouse's or common-law partner's death, receive or otherwise obtain the use of any of the income or capital of the trust.
Alter Ego
© 2009 Clarence Byrd Inc. 14
Only Inter Vivos
ITA 73(1.01)(c)(ii) The individual is entitled to receive all of the income of the trust that arises before the individual's death and no person except the individual may, before the individual's death, receive or otherwise obtain the use of any of the income or capital of the trust.
Joint Spousal or Common-Law Partner ITA 73(1.01)(c)(iii) either
• the individual or the individual's spouse is, in combination with the other, entitled to receive all of the income of the trust that arises before the later of the death of the individual and the death of the spouse and no other person may, before the later of those deaths, receive or otherwise obtain the use of any of the income or capital of the trust, or
• the individual or the individual's common-law partner is, in combination with the other, entitled to receive all of the income of the trust that arises before the later of the death of the individual and the death of the common-law partner and no other person may, before the later of those deaths, receive or otherwise obtain the use of any of the income or capital of the trust.
© 2009 Clarence Byrd Inc. 15
Rollovers to a Capital Beneficiary General Rule: Transfer at trust’s tax cost
Exceptions for transfers out of:
Spouse or common-law partner trust
Alter ego trust
Joint spouse or common-law partner trust
© 2009 Clarence Byrd Inc. 16
21 Year Deemed Disposition Deemed disposition/acquisition
every 21 years
Limits the deferral of capital gains within the trust
© 2009 Clarence Byrd Inc. 17
Net Income of a Trust
In general: Follows the ITA 3 rules as applied to an individual
Additional adjustments required
© 2009 Clarence Byrd Inc. 18
Net Income Adjustments
Deductions available for:Amounts paid or payable to beneficiariesTrustee’s or executor’s feesAmounts paid by the trust on behalf of
beneficiaries
© 2009 Clarence Byrd Inc. 19
Net Income Adjustments Preferred Beneficiary Election
Income retained in trust, taxed in hands of beneficiary
Only applicable to beneficiaries○ Who are eligible for the disability
tax credit; or○ Can be claimed as an infirm
dependant over 17
© 2009 Clarence Byrd Inc. 20
Net Income Adjustments
Amounts deemed not to be paidA distribution that is taxed in the trust
rather than in the hands of the recipient beneficiary
Reasons for using○ Lower rates○ Avoidance of instalments○ Use of trust losses
© 2009 Clarence Byrd Inc. 21
Net Income Adjustments Amounts retained for a
beneficiary under 21 years of age
• Retained in the trust but taxed in the hands of the beneficiary
• Beneficiary must be under 21 during the year
• Amounts must vest irrevocably with the beneficiary.
© 2009 Clarence Byrd Inc. 22
Taxable Income of a Trust
© 2009 Clarence Byrd Inc. 23
Net Income of the trust
Taxable Income of the trust
Same deductions as those available to
individuals
Income Allocations to Beneficiaries To be deductible, amounts must be paid or payable Not considered payable if:
• A beneficiary can only enforce payment of an amount of income by forcing the trustee to wind up the trust.
• The beneficiary’s right to income is subject to the approval of a third party.
• Payment of income is at the trustee’s discretion.
• The beneficiary has the power to amend the trust deed and must do so to cause the income to be payable.
© 2009 Clarence Byrd Inc. 24
Determination of Distributions Discretionary
Amounts at the discretion of trustee
Timing at the discretion of trustee
Non-DiscretionaryAmounts and their timing
specified in trust agreement
© 2009 Clarence Byrd Inc. 25
Flow Through Provisions
Dividends distributedBeneficiary will gross upBeneficiary will get credit
Retained in trustTrust will gross upTrust will get credit
Will retain eligible/non-eligible status
© 2009 Clarence Byrd Inc. 26
Flow Through Provisions
Capital Gains If distributed
○ One-half taxed○ One-half tax free
If retained○ One-half taxed○ One-half becomes part of
trust’s capital
© 2009 Clarence Byrd Inc. 27
Flow Through Provisions
Tax on split incomeA tax on specified types of
income (see Chapter 10)Applicable to those under 18
If specified income earned in trust:
It will be subject to this tax if beneficiary is under 18
© 2009 Clarence Byrd Inc. 28
Flow Through Provisions
Business IncomeMust be calculated at trust
levelWill include CCA, recapture,
and terminal losses
© 2009 Clarence Byrd Inc. 29
Flow Through Provisions
Principal Residence ExemptionOwned by trust
Ordinarily inhabited by beneficiary
Exemption available
© 2009 Clarence Byrd Inc. 30
Trust Tax PayableTestamentary Trusts
Taxed using the progressive rates applicable to individuals
Multiple testamentary trustsIf same beneficiaries may be
taxed as one trust
TaintingMay lose testamentary status if
contributions by living person
© 2009 Clarence Byrd Inc. 31
Trust Tax PayableInter Vivos Trusts
Undistributed income taxed at maximum rate of 29 percent
© 2009 Clarence Byrd Inc. 32
Tax Credits
Many not available (e.g., medical expenses)
AvailableDonation tax creditsDividend tax credits (eligible and non-eligible)Foreign tax creditsInvestment tax credits
© 2009 Clarence Byrd Inc. 33
Alternative Minimum Tax
Applicable To Trusts
The $40,000 exemption is only available to testamentary trusts
© 2009 Clarence Byrd Inc. 34
Income Attribution
Applicable to spouses, common-law partners and related minors
Applicable to transfers to a trust where the beneficiary is a spouse, common-law partner, or related minor
Occurs when income is allocated to such individuals
© 2009 Clarence Byrd Inc. 35
Reversionary Trusts
Attribution to settlor:If the transferred property can
revert to settlorIf the settlor can determine the
persons that will receive the transferred property
The transferred property cannot be disposed of except with transferor’s consent
© 2009 Clarence Byrd Inc. 36
Purchase or Sale of an Interest in a Trust
Income InterestCost usually nilGain will be property income
Capital InterestMay have a costGain or loss will be capital
© 2009 Clarence Byrd Inc. 37
Tax PlanningFamily Trust
Trust established for family members
Can be used to enforce behaviour (e.g., showing up for family dinners)
Can be used for income
splitting
© 2009 Clarence Byrd Inc. 38
Tax PlanningSpousal Trusts
Can provide for management of assets
Can ensure appropriate distribution of assets subsequent to death of spouse (settlor’s children in the event of spouse re-marriage)
© 2009 Clarence Byrd Inc. 39
Tax PlanningAlter Ego and Joint Spousal
Avoidance of ProbateCostlyTime consumingMultiple jurisdictionsProbate in public domain
Establishment in low tax jurisdiction (e.g., Alberta)
© 2009 Clarence Byrd Inc. 40
Estate Planning
Non-Tax ConsiderationsIntent of testatorPreparation of final willPreparation of living willEnsuring liquidityAvoiding family disputesExpediting the transition
© 2009 Clarence Byrd Inc. 41
Estate Planning
Tax considerationsPre-death planningPlanning in the year of deathIncome splittingForeign jurisdictionsAdministration
© 2009 Clarence Byrd Inc. 42
Estate Freeze Objectives
Transfer income to low tax beneficiaries
Freeze value of assets
Avoid immediate taxation
Transfer future growth
Retain control of assets
Not always possible to achieve all of these goals
© 2009 Clarence Byrd Inc. 43
Estate Freeze Techniques Gifts
Transfers growth and income
Generates current income unless transferee is a spouse or common-law partner
Attribution rules could apply
Tax on split income could apply
Transferor loses control over assets
© 2009 Clarence Byrd Inc. 44
Estate Freeze Techniques Instalment sales
Could use capital gains reservesWould require payment at FMV to avoid
attributionLoss of control
© 2009 Clarence Byrd Inc. 45
Estate Freeze Techniques Establishing an inter vivos trust
Transfers income and future growthWill attract immediate taxation unless it is a
spousal trustCan result in income attribution and tax on
split income
© 2009 Clarence Byrd Inc. 46
Estate Freeze Techniques Holding company
Can accomplish most objectivesWithout rollover, will result in immediate
taxation on transfer
© 2009 Clarence Byrd Inc. 47
Estate Freeze Techniques Rollover under
ITA 85 or ITA 86Can accomplish all objectivesITA 86 requires an existing
corporationITA 86 is simpler in that it
does not require an election
© 2009 Clarence Byrd Inc. 48
Specified Investment Flow Through Entities (SIFTs) SIFT Partnership
Canadian residentSecurities publicly
tradedHolds non-portfolio
properties
SIFT TrustCanadian residentSecurities publicly
tradedHolds non-portfolio
properties
© 2009 Clarence Byrd Inc. 49
Specified Investment Flow Through Entities (SIFTs) The problem
High tax rates on publicly traded corporations
○ Integration doesn’t work○ Makes flow through income attractive
Non-residents and tax exempt entities○ Non-residents pay low rates○ Tax exempts pay no tax○ Makes flow through income attractive
© 2009 Clarence Byrd Inc. 50
Specified Investment Flow Through Entities (SIFTs) The solution
Tax income from non-portfolio propertiesNon-portfolio
○ SecuritiesGreater than 10 percent of equity of investeeGreater than 50 percent of the equity of the SIFT
○ Real and resource properties (more than 50 percent of the SIFT’s equity)
○ Property used to carry on a business
© 2009 Clarence Byrd Inc. 51
Specified Investment Flow Through Entities (SIFTs)
© 2009 Clarence Byrd Inc. 52
Applicable Rate
Basic Rate 38%
Abatement (10%)
General Rate Reduction ( 9%)
Provincial SIFT Factor (Varies) 13%
Total 32%
Specified Investment Flow Through Entities (SIFTs) Mechanics Of Tax – Partnerships
Part IX.1 tax on earnings of non-portfolio properties
After tax amount is deemed to be a dividend received from a taxable Canadian Corporation
Can be allocated to partners as dividends (generally eligible)
© 2009 Clarence Byrd Inc. 53
Specified Investment Flow Through Entities (SIFTs) Mechanics Of Tax – Trusts
Earnings from non-portfolio properties taxed at 19%, plus provincial factor
When after tax amount is distributed, it is deemed to be a dividend (generally eligible)
© 2009 Clarence Byrd Inc. 54
© 2009 Clarence Byrd Inc. 55