25 June 1996 External T.I. 9530125 - PREFERRED BENEFICIARY SPOUSE OR FORMER SPOUSE

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.

Principal Issues:

Is the widow's (widower's) discretionary share of the accumulating income of a trust for a year determined under paragraph 2800(3)(f) of the Regulations. In 5-9737 dated May 8, 1990, we indicated that paragraph 2800(3)(f) rather than 2800(3)(e) would apply in determining the widow or widower's share of the accumulating income. This position appears to have been taken because in the particular situation we were asked to consider, the widow had remarried and was referred to as the "former spouse" of the settlor.

Position:

Confirmed our position in 5-9737 as it related to the situation on which that reply was based. However, it was also indicated that in a situation where a widow or surviving spouse had not remarried, paragraph 2800(3)(e) may apply in determining the widow's share of the accumulating income.

Reasons:

Ruling 923086 dated July 6, 1993, and opinion E57131 dated December 22, 1988.

	                    	5-953012
XXXXXXXXXX	                      G.W. Keable
(613) 957-2046

Attention: XXXXXXXXXX

June 25, 1996

Dear Sirs:

Re: Part XXVIII of the Income Tax Regulations

This in reply to your letter of November 14, 1995 concerning Part XXVIII of the Income Tax Regulations. We apologize for the delay in responding.

We have reviewed our correspondence dated May 8, 1990 (our file 5-9737) referred to in your letter and confirm that in the context of the particular situation on which this reply was based (your letter dated March 6, 1990), our view remains unchanged. That is, since the surviving spouse or widow had remarried and was now a former spouse, her share of the accumulating income of a trust for a year would be determined under paragraph 2800(3)(f) rather than paragraph 2800(3)(e). However, we would like to clarify that in cases where the surviving spouse has not remarried, paragraph 2800(3)(e) may apply in determining that spouse's share of the accumulating income of a trust for a year.

We would add that in view of the above comments, paragraph 2800(3)(c) may apply in situations where the joint settlor of a discretionary inter vivos trust is an individual and his/her spouse.

We trust that our comments will be of assistance to you.

Yours truly,

for Director
Resources, Partnerships and Trusts Division
Income Tax Rulings and Interpretations Directorate
Policy and Legislation Branch