Tax Interpretations Judicial and CRA interpretations of Canadian tax law and transactional implications

Income Tax Act - 141-160 - Section 146.2

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Paragraph 146.2(2)(e)

Articles

Max Reed, "TFSA: US Tax Classification," Canadian Tax Highlights, Vol. 22, No. 7, July 214, p. 5

TFSA not a trust for Code purposes (p.6)

[I]f an entity is separate from its owner, it is subject to the entity classification regime unless it is specifically classified in the Code or regulations; the TFSA is not. A TFSA also does not meet the definition of a trust for US tax purposes. A foreign trust is defined in Code section 7701(a)(31)(B) as any trust that is not domestic. A trust is defined in regulation 301.7701-4(a) as an arrangement in which the trustee "take[s] title to property for the purpose of protecting or conserving it for the beneficiaries under the ordinary rules applied in chancery or probate courts." A bank does not take title to property deposited into a TFSA. A statutory precondition to the establishment of a TFSA (ITA paragraph l46.2(2)(e)) is that at the customer's direction the financial institution "shall transfer all or any part of the property held in connection with the arrangement (or an amount equal to its value) to another TFSA of the holder," a right that assumes that the customer retains title to the property. ...

Default classification as disregarded entity (p. 6)

In summary, the precise classification of a TFSA is not certain, but a TFSA is not a foreign trust because it is not an entity separate from its owner; thus, the entity classification rules do not apply and no special reporting of the TFSA is required. Even if the entity classification rules apply, the default classification of a TFSA is that of a disregarded entity for US tax purposes, and a form 8858 must be filed annually.

Paragraph 146.2(1)(c)

See Also

Dep. MNR v. Bonair Leisure Industries Ltd., 82 DTC 6217, [1982] CTC 188 (FCA)

It was stated respecting the use of the word "homes" in the Excise Tax Act: "The word is not qualified by any adjective. There is thus no reason for not according it the fullest or broadest meaning it may bear that is consistent with the context in which it is found".