Translation disclaimer
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: 1. Whether the gross amount of a registered pension plan (RPP) survivor benefit paid to a graduated rate estate (GRE) (that is, the net amount paid to the GRE plus an amount equivalent to the amount of tax withheld at source in respect of the survivor benefit) in a year may be designated under subsection 104(27) as an eligible amount for the purposes of paragraph 60(j) where, in addition to paying the net amount to the deceased’s surviving spouse in the year, the GRE:
(a) uses other assets to pay to the deceased’s surviving spouse an amount equal to the tax withheld?
(b) issues, in the year, a promissory note in an amount equal to the tax withheld, payable on demand, to the deceased’s surviving spouse?
2. Could the surviving spouse claim a deduction under paragraph 60(j) if he/she transferred up to $40,000 of the eligible amount to a first home savings account (FHSA)?
Position: 1. (a) Yes, provided that the deceased’s surviving spouse is legally entitled to receive the gross survivor benefit out of the deceased’s GRE.
(b) Yes, provided that the deceased’s surviving spouse is legally entitled to receive the gross survivor benefit out of the deceased’s GRE and further provided that nothing prevents the note from being enforceable in the year.
2. No.
Reasons: 1. As long as the gross amount is first payable to the surviving spouse under the general applicable law and it is either paid in the year to the surviving spouse, or the surviving spouse has a legal right to enforce payment of the amount, the amount will be payable within the meaning of subsection 104(6) and 104(13). As a result, a designation under subsection 104(27) would generally be available.
2. Paragraph 60(j) does not apply in respect of amounts paid as a contribution to a FHSA. Moreover, any amount in excess of $8,000 contributed to a FHSA in 2023 would result in an excess FHSA amount.
FINANCIAL STRATEGIES AND FINANCIAL INSTRUMENTS ROUNDTABLE, 3 NOVEMBER 2023
2023 APFF CONFERENCE
8. Registered pension plan on death and indirect transfer to surviving spouse
Paul died on June 1, 2022. He was a member of a registered pension plan ("RPP") subject to the Supplemental Pension Plans Act (footnote 1) and no beneficiary designation had been made with respect to this plan.
Sylvie, his spouse, to whom he had been married for a number of years, was the sole heir to all his property under the terms of his last will. Following her husband's death, Sylvie, who was gravely ill, did not wish to receive the joint and survivor pension, but instead wanted the RPP administrator to pay her a lump sum equivalent to her pension entitlement. To that end, Sylvie waived in writing the joint and survivor pension that was payable to her.
Consequently, on January 15, 2023, the RPP administrator paid the estate a lump sum of $350,000 less source deductions of $130,000, for a net amount of $220,000.
Direct transfer
If the lump sum had been transferred directly to Sylvie's Registered Retirement Savings Plan ("RRSP") (footnote 2), no tax consequences would have resulted. In fact, where a surviving spouse is entitled to receive a lump sum amount (other than an actuarial surplus) from an RPP following the death of their spouse and the conditions of subsection 147.3(7) are satisfied, the direct transfer of the amount to the survivor’s RRSP would not have had any tax consequences (footnote 3).
Indirect transfer
For the rollover provided for in subsection 147.3(7) to apply, the transfer must be made directly. Thus, where the plan administrator pays the lump sum to the estate, which then pays it to the surviving spouse, subsection 147.3(7) cannot apply. In such a case, the conditions (footnote 4) of subsection 104(27) must be complied with to accomplish the rollover of the lump sum (other than an actuarial surplus) from the RPP to the surviving spouse's RRSP pursuant to paragraph 60(j) (footnote 5).
In this context, let us add the following facts:
Paul's estate filed its first tax return designating itself as a GRE and its fiscal period ran from June 1, 2022 to May 31, 2023.
During that fiscal period, the estate paid Sylvie on May 1, 2023 $220,000 from the net amount that the RPP administrator had paid to the estate and an additional $130,000 with either:
1- other liquid assets of the estate; or
2- a demand note for $130,000.
Under the terms of the estate's first tax return and pursuant to subsection 104(27), the estate allocated $350,000 to Sylvie as a retirement benefit.
Pursuant to subsection 104(6), the estate, a testamentary trust, may deduct from its income amounts that are payable to a beneficiary (footnote 6). The beneficiary must pay tax on those amounts pursuant to subsection 104(13).
Sylvie wishes to transfer the amount received from the estate to her RRSP in order to benefit from a tax-free transfer pursuant to paragraph 60(j) and contributes $350,000 to her RRSP on October 1, 2023.
For the RRSP contribution to be deductible pursuant to paragraph 60(j), it must be made in the taxation year (or within 60 days after that year) in which the amount from the estate pursuant to subsection 104(27) was included in Sylvie's income. Since the estate's fiscal period runs from June 1, 2022 to May 31, 2023, the May 1, 2023 payment will not be allocated to Sylvie until the end of the estate's fiscal period, May 31, 2023. Sylvie will therefore be taxable on income of $350,000 in 2023 and her RRSP contribution of the same amount, made on October 1, 2023, will be deductible, making the lump-sum payment from the RPP tax-free.
Questions to the CRA
(a) Assuming that all the other conditions set out in paragraph 60(j) and subsection 104(27) are met, can the CRA confirm that the fact of the use by the estate of an additional $130,000 from its other liquid assets to make up for the tax withheld by the plan administrator, will allow Sylvie to contribute $350,000 to her RRSP and to deduct such a contribution through the application of subsection 104(27) and paragraph 60(j)?
(b) If, using the same facts, but with the estate, instead of using cash from the estate, using the demand note of $130,000 to make up for the withholding tax and Sylvie, following receipt of the demand note, using her own funds to contribute $350,000 to her RRSP, will the CRA allow the deduction by the RRSP of $350,000 by applying subsection 104(27) and paragraph 60(j)?
(c) What would be the impact if Sylvie transferred the amount received from the estate to her First Home Savings Account (“FHSA”) up to the $40,000 limit and the difference to her RRSP?
CRA Response to Questions 8(a) and 8(b)
Where an estate, considered to be a trust for purposes of the Income Tax Act, receives an amount as a superannuation or pension benefit, it must include that amount in computing its income pursuant to subparagraph 56(1)(a)(i) I.T.A. On the other hand, a single payment made pursuant to a superannuation or pension plan on the death of an employee or former employee constitutes a lump-sum payment from which the plan administrator must withhold tax in accordance with subsection 103(4) of the Income Tax Regulations (“I.T.R.”) (footnote 7) where it is paid to the estate of a member following the member’s death (footnote 8).
Paragraph 104(13)(a) I.T.A. provides that a beneficiary under a trust that is not described in paragraph (a) of the definition of "trust" in subsection 108(1) I.T.A. must include in computing the beneficiary's income for a particular year such part of the trust's income that became payable to the beneficiary in the trust's year that ended in the particular year. Paragraph 104(6)(b) I.T.A. provides that there may be deducted in computing the income of a trust for a taxation year the amount claimed by the trust that does not exceed the part of the trust's income for the year that became payable to a beneficiary in the year. The income referred to in both subsection 104(13) and subsection 104(6) is the trust's income determined in accordance with the provisions of the Income Tax Act. Furthermore, for the purposes inter alia of these provisions, subsection 104(24) I.T.A. provides that an amount is deemed not to have become payable to a beneficiary in a taxation year unless it was paid to the beneficiary in the year or the beneficiary was entitled to enforce payment of the amount in the year. However, before considering the application of subsection 104(24), it must be determined whether, under the trust's governing instrument, all the relevant facts and the law applicable to the trust, the income became payable to the beneficiary.
Unless an express provision of the Income Tax Act allows the income character to be preserved, paragraph 108(5)(a) provides that amounts included in the income of a beneficiary of a trust under subsection 104(13) I.T.A. are deemed to be income of the beneficiary for the year from a property that is an interest in the trust and not from any other source.
Subsection 104(27) allows a trust resident in Canada that is a GRE of a deceased individual to transfer, for certain purposes, including to its beneficiary who was the deceased individual's spouse or common-law partner at the time of the deceased individual's death, the character of certain superannuation or pension benefits received by the trust that can reasonably be considered to form part of the amount that was included in computing the beneficiary's income by reason of subsection 104(13), provided certain conditions are satisfied.
In order for subsection 104(27) to apply to deem a particular amount to be an eligible amount for the purposes of paragraph 60(j) to the beneficiary of the GRE who was the deceased individual's spouse or common-law partner at the time of the individual's death, certain conditions must be satisfied. In particular, it must be reasonable to consider (having regard to all the circumstances including the terms and conditions of the trust arrangement) that the amount reported by the GRE, for the purposes of subsection 104(27), in its return of income for the year in respect of that beneficiary, is an amount that represents a superannuation or pension benefit received by the GRE and that such amount forms part of the amount that, by reason of subsection 104(13), was included in computing the income for a particular taxation year of the beneficiary.
Thus, in the situation described, for the entire superannuation or pension benefit received by Paul's estate to be included in computing Sylvie's income pursuant to subsection 104(13), the entire superannuation or pension benefit from Paul's estate must have become payable to Sylvie in the year of the GRE for Paul ending on May 31, 2023.
Since Sylvie was the sole heir to all of Paul's property under his last will and testament, the full superannuation or pension benefit included in the income of the GRE for Paul, i.e., $350,000, could be considered payable to her in the year, subject to subsection 104(24).
If the GRE were to use an additional $130,000 from its other liquid assets to make up for the withholding tax deducted by the RPP administrator, the GRE would in fact pay Sylvie $350,000 on May 1, 2023. In this situation, subsection 104(24) I.T.A. would therefore not deem the $350,000 not to have become payable to Sylvia by Paul's GRE in its year ending May 31, 2023.
On the other hand, in the situation where the GRE instead issued a demand note for $130,000 to make up for the withholding tax, the $130,000 could constitute an amount that became payable to Sylvia by the GRE, within the meaning of subsection 104(24) for its year ending May 31, 2023, to the extent that the issuance of the note was permitted by the will and to the extent that the demand note was unconditional. However, if Sylvie could not demand payment of the promissory note because of a contingency or any other restriction, the conditions of subsection 104(24) would not be satisfied and the $130,000 would not have become payable by the GRE for its year ending May 31, 2023.
Provided that all the other conditions set out in paragraph 60(j) and subsection 104(27) were met and that Sylvie contributed to her RRSP, within the prescribed time, an amount equal to the amount included in her income under subsection 104(13) I.T.A. and allocated to her by the GRE of Paul pursuant to subsection 104(27) in accordance with the foregoing, Sylvie could as a result claim the deduction provided for in paragraph 60(j).
CRA Response to Question 8(c)
Paragraph 60(j) I.T.A. provides that where a taxpayer who was the spouse or common-law partner of an individual, at the time of the individual's death, includes in computing the taxpayer's income for a particular taxation year an amount received by the taxpayer from the GRE of the deceased that is deemed by subsection 104(27) to be an eligible amount for the purposes of paragraph 60(j), the taxpayer may deduct in computing income for the year an amount equal to the amount so included provided that such amount does not exceed the total of all amounts paid by the taxpayer in the year or within 60 days after the end of the year:
(A) as a contribution to or under a RPP for the taxpayer’s benefit, other than the portion thereof deductible under paragraph 8(1)(m) in computing the taxpayer’s income for the year, or
(B) as a premium, within the meaning of subsection 146(1), to an RRSP under which the taxpayer is the annuitant, within the meaning of that subsection (footnote 9).
Paragraph 60(j) does not provide that an amount paid as a contribution to an FHSA qualifies for the deduction provided therein. Consequently, any portion of the amount that Sylvie received from Paul's GRE and that she transferred to her FHSA would not give rise to the deduction provided for in paragraph 60(j), even if that amount were otherwise deemed, under subsection 104(27) I.T.A., to be an eligible amount for the purposes of paragraph 60(j). It should also be noted that Sylvie could not contribute more than $8,000 to her FHSA in 2023 without an "excess FHSA amount" within the meaning of subsection 207.01(1) thereby resulting.
Mélanie Beaulieu
November 3, 2023
2023-097690
FOOTNOTES
Due to the requirements of our systems, the footnotes contained in the original document are reproduced below:
1 RLRQ, c. R-15.1.
2 In addition to the direct transfer to an RRSP, subsection 147.3(7) of the Income Tax Act, R.S.C. (1985), c. 1 (5th Supp.) ("I.T.A.") also allows the amount to be transferred directly to a Registered Retirement Income Fund ("RRIF") or another RPP.
3 Pursuant to subsection 147.3(9) I.T.A., the surviving spouse does not have to include the amount transferred in her income and the amount transferred is not deducted from her income. No T4A slip, "Statement of Pension, Retirement, Annuity and Other Income" or receipt for such an amount is issued. No tax is withheld on the amount transferred. The transfer is made by completing Form T2151, "Direct Transfer of a Single Amount Under Subsection 147(19) or section 147.3"
4 CANADA REVENUE AGENCY, Technical Interpretation 2021-0883041C6, June 15, 2021. Where certain conditions are met, subsection 104(27) I.T.A. allows a graduated rate estate (“GRE”) to flow through to a beneficiary of the estate, the character of certain pension benefits received by the estate and included in the beneficiary’s income.
5 Note that paragraph 60(j) I.T.A does not permit the transfer of amounts from an RPP to a RRIF when the RPP is received by the estate before being given to the spouse. Only a transfer to an RRSP is permitted.
6 Pursuant to subsection 104(24), an amount is "payable" to a beneficiary if it is actually paid or if the beneficiary has the right to enforce payment in the year (for example, by way of a demand note)
7 C.R.C., c. 945 (I.T.R.).
8 Pursuant to paragraph 153(1)(b) I.T.A., every person who pays superannuation or pension benefits in a taxation year must withhold tax in the prescribed manner. Subsection 103(4) I.T.R. sets out the withholding rates applicable where a payment is made in the form of a lump sum by an employer to an employee resident in Canada. According to paragraph 103(6)(a) I.T.R., a payment described in subparagraph 40(1)(a)(i) of the Income Tax Application Rules, R.S.C. 1985, c. 2 (5th Supp.) ("I.T.A.R.") constitutes a "lump sum payment" for the purposes of subsection 103(4) I.T.R. A single payment made out of a superannuation or pension fund or plan on the death of an employee or former employee is a payment to which subparagraph 40(1)(a)(i) I.T.A.R. applies.
9 Excluding the portion of this premium that the taxpayer indicates in the taxpayer’s income tax return for a taxation year for the purposes of paragraph 60(l) I.T.A. According to legislative proposals released by the Department of Finance on August 4, 2023, an amount paid as a contribution to a RRIF under which the taxpayer is the annuitant would also be permitted, subject to the same exclusion
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