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This translation was prepared by Tax Interpretations Inc. The CRA did not issue this document in the language in which it now appears, and is not responsible for any errors in its translation that might impact a reader’s understanding of it or the position(s) taken therein. See also the general Disclaimer below.
Principal Issues: [TaxInterpretations translation] Is it possible to transfer an RRSP between common-law spouses residing in Quebec?
Position: Yes.
Reasons: The wording of 146(16)(b), which allows, inter alia, the transfer of an RRSP between common-law partners under a written separation agreement if the agreement is for the division of property in settlement of rights arising out of, or on, the breakdown of the common-law relationship.
XXXXXXXXXX 2005-013408
A. St-Amour, CA
August 30, 2005
Dear Madam,
Subject: Transferring a Registered Retirement Savings Plan (RRSP) between common-law partners
This is in response to your email of May 31, 2005, in which you asked whether it is possible to transfer an RRSP between common-law spouses residing in Quebec as part of the division of their property upon separation due to the breakdown of their common-law relationship.
Unless otherwise indicated, all statutory references herein are to provisions of the Income Tax Act (the "Act").
Under paragraph 146(16)(b), an RRSP can be amended to permit the transfer or payment, before its maturity, of property accumulated in an annuitant's RRSP, on a tax-free basis to, inter alia, an RRSP of the annuitant's common-law partner, if the following conditions are satisfied:
1. The annuitant and the common-law partner or former common-law partner are living separate and apart;
2. The payment or transfer is made under a decree, order or judgment of a competent tribunal, or under a written separation agreement, relating to a division of property between the Annuitant and the common-law partner or former common-law partner; and
3. The payment or transfer is in settlement of rights arising out of, or on the breakdown of, their common-law partnership.
We are of the view that two common-law spouses residing in Quebec may, upon the breakdown of their relationship, avail themselves of the provisions of paragraph 146(16)(b) to transfer property accumulated in an RRSP pursuant to a written separation agreement providing for the division of property between the parties in settlement of rights arising from the breakdown of their common-law relationship.
The question of whether a given agreement is a "written separation agreement" relating to the division of property in settlement of rights arising out of, or on, the breakdown of a common-law partnership is one of fact and law which can only be resolved by considering all the relevant facts.
These comments are not advance income tax rulings and, as stated in paragraph 22 of Information Circular 70-6R5 dated May 17, 2002, are not binding on us. However, we hope you find them of assistance. If you have any questions, please do not hesitate to contact us.
Best regards,
Ghislain Martineau
Manager
Financial Sector and Exempt Entities Section
Financial Sector and Exempt Entities Division
Income Tax Rulings Directorate
Policy and Planning Branch
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