21 July 1989 Income Tax Severed Letter 7-4121 - Employee pension plan

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CRA.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the Department. Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle du ministère.

Registered Pension and Rulings Directorate
A Deferred Income Plans Division Financial Industires
Division
Attention: F. Brock F. Francis
957-3496

SUBJECT: XXX 7-4121
Employee Pension Plan

This is in reply to your memorandum of July 10, 1989, wherein you requested our opinion in respect of the following situation:

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You have requested our views in respect of three specific issues:

• 1. The implications of including the proposed amendments in the RPP.
• 2. The income tax consequences to the employer of the funds going directly to the Trust Fund.
• 3. Whether the Trust Fund would be considered as an employee benefit plan (“EBP”) or retirement compensation arrangement (“RCA”) as these terms are defined under subsection 248(1) of the Act.

We have not received a copy of the proposed Trust Fund Agreement and are therefore unable to provide any conclusive comments on the tax consequences thereof.

It is our position that paragraph 254(b) of the Act may be applicable since the employees' right to surplus under the proposed amendment are not rights provided under the RPP. Under paragraph 254(b) of the Act, an amount equal to the value of rights created by the proposed amendment shall be deemed to have been received by XXX the Participants and the employees under the RPP at the time the amendment is implemented. However, in view of the fact that the allocation of surplus will only be determined by the trustees of the Trust Fund upon termination of the RPP, the value of the rights may not be determinable at this time. Consequently, it may be preferable to apply paragraph 254(b) of the Act at the time the Trust Fund is established.

Alternatively, it is arguable that the surplus received by the Trust Fund from the RPP may be considered as a superannuation or pension benefit and would be included in the income of the Trust Fund under paragraph 56(1)(a) of the Act. XXX XXX We direct your attention to the definitions of EBP and RCAs under subsection 248(1) of the Act wherein it states that EBPs and RCAs are plans or arrangements under which contributions are made by an employer or a person with whom the employer does not deal at arm's length. Consequently, provided that the employer and the RPP deal at arm's length, and provided that the payment by the RPP cannot reasonably be considered to be made on behalf of the employer it is our view that the Trust Fund would not be an EBP or an RCA but would be an intervivos trust which is taxable under Part I of the Act.

We trust the above comments will be of assistance to you.

Yours truly,

for Director
Financial Industries Division
Rulings Directorate