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23 July 2004 External T.I. 2004-0067861E5 F - Transfert d'une terre à bois à un enfant
Principal Issues: [TaxInterpretations translation] What is a "forest management plan" for the purposes of subsections 70(9) and 73(3) of the Act?
Position: Definition provided in the Explanatory Notes issued by the Ministry of Finance on February 5, 2002.
Reasons: Although the term "forest management plan" has not yet been defined in the Regulations, the Department of Finance has provided a definition for transfers made between now and the publication of the Regulations. It is a plan of the deceased taxpayer in respect of the woodlot that provides for the necessary attention to the woodlot’s growth, health, quality and composition.
This is the definition that will apply to transfers made before the publication of the Regulations.
XXXXXXXXXX 2004-006786
Mario Gingras, CGA
July 23, 2004
Dear Sir,
Subject: Transfer of woodland to a child
This is in response to your letter of March 16, 2004 in which you asked for our opinion on the above subject.
THE FACTS
A taxpayer owns a woodlot. The taxpayer has obtained a report from a forestry engineer for a given year setting out the eligible development expenses for the purposes of the property tax refund provided for in the Quebec Forest Act.
QUESTIONS
You would like our opinion as to whether this report meets the definition of "prescribed forest management plan" for the purposes of subsections 70(9) and 73(3) of the Income Tax Act (the "Act").
You would also like to know whether a forest engineer's report is required for a woodlot for each taxation year between December 10, 2001, when the rules facilitating the transfer of woodlots to a child came into effect, and the date of its disposition, to qualify pursuant to the rules in subsections 70(9) and 73(3).
OUR COMMENTS
As stated in paragraph 22 of Information Circular 70-6R5 dated May 17, 2002, it is the practice of our Directorate not to issue a written opinion regarding proposed transactions otherwise than by advance rulings. Furthermore, when it comes to determining whether a completed transaction has received appropriate tax treatment, that determination is made first by our Tax Services Offices as a result of their review of all facts and documents, which is usually performed as part of an audit engagement. However, we offer the following general comments which may not apply in full to the situation you have submitted to us.
As you stated, the Minister of Finance announced new measures in his December 10, 2001 budget to facilitate the transfer of woodlots to a child. Specifically, Bill C-49, respecting the 2001 budget measures released on February 5, 2002, included amendments to subsections 70(9) and 73(3) of the Act to facilitate the transfer of woodlots to a child. These amendments apply to transfers made after December 10, 2001. Essentially, property used in the operation of a woodlot will qualify for these transfers where, inter alia, the taxpayer, the taxpayer's spouse or common-law partner, or any of the taxpayer's children was involved in the operation of the woodlot to the extent required by a prescribed forest management plan in respect of that woodlot.
Although Bill C-49 received Royal Assent on March 27, 2002, the term "forest management plan" has not yet been defined in the Income Tax Regulations (the "Regulations"). The Department of Finance stated in the Explanatory Notes to Bill C-49, also released on February 5, 2002, that:
The expression “prescribed forest management plan” will be defined by regulation. The 2001 Budget announced the Government’s intention to develop specific criteria for prescribed forest management plans in consultation with interested parties. In respect of transfers of property before the announcement of these criteria, it is proposed that the regulations will reflect that the prescribed forest management plan is a plan of the deceased taxpayer in respect of the woodlot that provides for the necessary attention to the woodlot’s growth, health, quality and composition. (Emphasis added)
Thus, the Explanatory Notes provide a temporary definition of the term "forest management plan" applicable to transfers made after December 10, 2001 and before the publication of the Regulation. It is therefore this definition that will apply to transfers made before the publication of the Regulation.
With respect to the situation presented, the Forest Act provides in section 123 that in order to obtain a property tax refund under the Municipal Taxation Act, a person must be a forest producer, apply for it and have a report from a forest engineer setting out eligible development work expenses. To be a forest producer, section 120 of the Forest Act requires, inter alia, that the woodlot have a forest management plan certified by a forest engineer as being consistent with the by-laws of the competent regional agency for private forest development. It is the regional private forest development agencies that have the mandate to define the content of the management plans. According to the information we were able to obtain from certain regional agencies on the content of those plans, they include forest management plans that identify the main development work on the property. Based on this information, we are of the view that those plans generally satisfy the definition of the term "forest management plan" as currently defined in the Explanatory Notes of the Department of Finance concerning the amendments made by Bill C-49 to subsections 70(9) and 70(3).
In the situation you presented to us, it is not the forest engineer's report setting out the development expenditures eligible for the property tax refund that constitutes a "forest management plan" for the purposes of subsections 70(9) and 73(3), but rather the certified forest management plan that the taxpayer filed to obtain forest producer status under section 120 of the Forest Act. Although this plan does not have to be redone every year since a forest management plan usually provides for work to be done for several years, the taxpayer, the taxpayer’s spouse or common-law partner, or one of the taxpayer’s children must do the work provided for in the plan either annually or over longer periods as provided for in the plan in order for the woodlot to qualify for the transfers provided for in subsections 70(9) and 73(3). It should be noted that in order to qualify for transfers under subsections 70(9) and 73(3), the taxpayer must also, prior to the transfer, be using the woodlot primarily in a farming business.
These comments are not advance income tax rulings and do not bind the Canada Revenue Agency with respect to any particular factual situation.
We hope these comments are of assistance.
Best regards,
Ghislaine Landry, CGA
Manager
Individuals, Business and Partnerships Section
Business and Partnerships Division
Income Tax Rulings Directorate
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