Income Tax Severed Letters - 2016-08-10


2016 Ruling 2015-0571441R3 - Dutch Cooperative - 93.2 & 95(2)(c)

CRA Tags
93.2, 95(6), 248(1) "corporation"
rollover is available on joint drop-down of shares of a Dutch private limited liability company into a Dutch cooperative in consideration for respective credits to the membership accounts
Dutch cooperative whose articles limited member liability was a corp
membership interest in Dutch cooperative ruled to be shares
non-resident subsidiaries CFAs of bottom-tier Cdn partnership and FAs of Canadian corporate partners
joint contribution of shares of FA to Netherlands co-op in consideration for credits to their respective membership accounts deemed to be for share consideration

Principal Issues: (1) Whether a particular Dutch cooperative would be treated as a corporation for the purposes of the Act? (2) If so, would section 93.2 and paragraph 95(2)(c) apply?

Position: (1) Yes. (2) Yes, provided certain conditions are met.

Reasons: (1) The provisions of the foreign legislation and the articles creating the Dutch cooperative support the conclusion that this entity should be treated as a corporation for the purposes of the Act. (2) All of the requirements of section 93.2 and paragraph 95(2)(c) could, under certain conditions, be considered to be met in the circumstances submitted.

Technical Interpretation - External

11 July 2016 External T.I. 2015-0592681E5 F - RRIF Death of an annuitant

CRA Tags
146.3(5), 60(l)(v)
surviving spouse who has been predesignated can qualify as an RRIF annuitant even if he or she does not receive any annuity payments
deduction for transfer to eligible recipient by surviving spouse
transfer by eligible recipient of payment out of RRIF
consequence of death if named as beneficiary in RRSP contract

Principal Issues: 1) Whether a spouse or common law partner ("Spouse") of a deceased RRIF annuitant can be a RRIF successor annuitant where the Spouse dies shortly after the RRIF annuitant?
2) Whether it is possible to reduce the amount of the RRIF deemed benefit on death and include this amount in the Spouse's income when the Spouse died shortly after the deceased annuitant?
3) During which period shall the Minister reassess a taxpayer in order to take into consideration a reduction of an amount otherwise required to be included in computing the deceased's income, as permitted by subsection 146.3(6.2)?
4) When does an amount need to be paid by or on behalf of a taxpayer to a carrier as consideration for a RRIF in order to be deductible under paragraph 60(l)?
5) Is it possible to open a RRIF account for a deceased person?

Position: 1) Depends on whether the undertaking was made pursuant to subparagraph (b)(i) or (b)(ii) of the annuitant definition in subsection 146.3(1).
2) It might be possible if the amount meets the designated benefit definition in subsection 146.3(1). However, to be a designated benefit under paragraph (a) of that definition the joint election between legal representative and the individual must be done while the individual is alive.
3) Six years after the day of sending a notice of original assessment under Part I.
4) In the year or within 60 days after the year in which the taxpayer has included a designated benefit in its income pursuant to subsection 146.3(5).
5) No.

Reasons: 1) If the annuitant has designated the Spouse as a successor annuitant of the RRIF in the RRIF contract or in his/her will, subparagraph (b)(i) applies at the time of death. However, the Spouse cannot be a successor annuitant under paragraph (b)(ii) of the annuitant definition in subsection 146.3(1) if the Spouse died before the RRIF carrier made the undertaking with the consent of the legal representative of the first deceased annuitant.
2) Where an amount is a designated benefit as defined in subsection 146.3(1), subsection 146.3(6.2) permits a reduction of the amount that a deceased annuitant is deemed to have received by subsection 146.3(6). In such a case, the amount received by the Spouse will be included in the Spouse’s income by virtue of subsection 146.3(5).
3) Paragraph 152(6)(f.3) requires the Minister to reassess the deceased's tax return if a reduction under subsection 146.3(6.2) is claimed. Pursuant to subparagraph 152(4)(b)(i), the reassessment for the adjustment in subsection 152(6) must be before the day that is 3 years after the end of normal reassessment period.
4) Preamble of paragraph 60(l).
5) Definition of RRIF and retirement income fund in subsection 146.3(1).

14 June 2016 External T.I. 2016-0635031E5 - Geothermal Energy - Tax Benefits

Principal Issues: Tax benefits available to the geothermal energy industry in particular and the renewable/conservation energy industries in general.

Position: Identification and explanation of tax benefits available to the geothermal energy industry in particular and rules governing renewable energy industries in general.

Reasons: Subparagraph (d)(vii) of Class 43.1; subclause (d)(i)(A)(II) of class 43.1, Schedule II; Technical Guide to Class 43.1 and 43.2; Technical Guide to Canadian Renewable and Conservation Expense (CRCE).

16 May 2016 External T.I. 2015-0571591E5 - Employees Provident Fund of Malaysia

CRA Tags
56(1)(a)(i), 60(j)(i), 248(1), Treaties Article XVIII
Treaty-exempt receipts must be included in income and deducted from taxable income under s. 110(1)(f)(i)

Principal Issues: The taxpayer requests our views on whether funds held in the Malaysian Employees Provident Fund may be transferred to a registered retirement savings plan on a tax-deferred basis.

Position: Question of fact.

Reasons: Without a review of the particular plan documents and the facts surrounding a participant's employment, we are unable to provide definitive comments.

12 April 2016 External T.I. 2015-0595461E5 - Australian Super Fund & T1135

CRA Tags
233.3, 248(1) "cost amount"
Australian pension fund subject to 10%-15% tax rate not an exempt fund
cost amount of pension rights includes future amounts to which legal entitlement
no penalty for reasonably estimating an unknown amount, e.g., the “cost amount” of a pension interest
Australian Superannuation Fund not an exempt trust due to taxability

Principal Issues: Whether a Canadian resident individual is required to file foreign reporting forms in respect of her interest in an Australian Super Fund trust?

Position: It depends on the particular Super Fund, but in the Super Fund described in the document, the taxpayer is required to file a T1135.

Reasons: The Super Fund trust described is specified foreign property, and none of the exceptions apply.