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: [TaxInterpretations translation]
1. Is there a life insurance policy disposition when the policyholder, who is terminally ill, changes the beneficiary of the policy and, in return, the new beneficiary pays the policy premiums until the policyholder’s death and pays a sum of money to the policyholder?
2. Where a taxpayer’s business involves purchasing life insurance policies from terminally ill individuals for an amount less than the sum payable upon death, is the income from that business included under section 9 or is it exempt from tax by virtue of section 148 of the Act?
Position:
1. Generally speaking, a change of beneficiary does not constitute a disposition; however, in this case, there could be a disposition, as the policyholder receives consideration for the change and will no longer be paying the premiums.
2. The business’s income would be included in computing income under section 9 of the Act.
Reasons:
1. A question of law and fact.
2. The Department's position is that the scope of section 148 of the Act is limited and that, generally speaking, section 148 would take precedence over section 9 only where both sections include the same amount in income. Furthermore, the spirit of the Act with regard to section 148 is not intended to exclude such income from the computation of income.
December 15, 1998
Sherbrooke Tax Services Office Headquarters
Financial Industries Division
Attention: Pierre Lafontaine
L. J. Roy, C.G.A.7-982818
Life insurance policy
This is in response to your fax of October 29, 1998 and our telephone conversation of December 9, 1998, in which you sought clarification of the tax implications to both parties involved in a situation that was explained to you over the telephone.
Our understanding of the facts regarding the situation you have described is as follows.
Facts
1. A person suffering from an illness is terminally ill. A medical certificate has been signed stating that he has only six months to live.
2. The person holds a life insurance policy worth $100,000.
3. A company with no connection to the person has approached him with a proposal to pay out his life insurance during his lifetime. The company offers two options regarding his $100,000 life insurance policy. In the first option, the company pays him $80,000 and undertakes to pay the life insurance premiums until his death, and the individual names the company as the beneficiary of the policy. In the second option, the company opens a $73,000 line of credit in the person’s name and undertakes to pay the line of credit and the policy premiums until death. In return, the person names the company as the beneficiary of the policy.
4. The company’s business involves purchasing life insurance policies from terminally ill individuals for a value lower than the amount payable upon death.
Generally speaking, subsection 148(1) of the Income Tax Act (the “Act”) provides that a policyholder must include in computation of their income the amount by which the proceeds of disposition of their interest in a life insurance policy exceed its adjusted cost base immediately before the disposition.
In order to determine whether there is a disposition of an interest in an insurance policy, reference must be made to the definition of “disposition” in subsection 148(9). According to that definition, the situation described could result in a disposition if it can be demonstrated that there is a disposition of that interest in the policy by operation of law only. To determine whether there is a disposition by operation of law, it must be established whether the change to the existing contract results in the creation of a new contract under the Civil Code of Quebec. Such a determination can only be made after an examination of all the facts of a particular situation and the terms of the contracts and proposed amendments.
Although, in general, the Department considers that a change of beneficiary, in itself, is not an amendment that results in a disposition of an insurance contract, the fact that the policyholder receives a sum in return for this change and that the insurance premiums will be paid directly by the new beneficiary could indicate that, in reality, the new beneficiary has acquired an interest in the policy in question. Consequently, subsection 148(1) would apply to include the amount to which the policyholder is entitled as proceeds of disposition.
Normally, a payment received under an exempt life insurance policy following the death of the insured person is excluded from the definition of a disposition in subsection 148(9). No amount is therefore included in income under subsection 148(1).
However, in a situation where a taxpayer’s business involves purchasing life insurance policies from terminally ill individuals for an amount less than the amount payable upon death, we are of the view that the profits the taxpayer derives from that business are not covered by section 148 but rather by section 9.
For your information, a copy of this memorandum will be severed using the Access to Information Act and will be available in the Legislative Access Database (LAD) located on the mainframe of the Canada Customs and Revenue Agency. A severed copy will also be distributed to the commercial tax publishers for inclusion in their databases. The severing process will remove all material that is not subject to disclosure, including information that could disclose the identity of the taxpayer. Should your client request a copy of this memorandum, the Legislative Access Bank version can be provided. Alternatively, the client may request a severed copy using the Privacy Act criteria, which does not remove client identity. Requests for this latter version should be made by you to Ms. Jackie Page at (613) 957-0682. A copy that has been severed in accordance with the Privacy Act will be sent to you for delivery to the client.
Director
Financial Industries Division
Income Tax Rulings and Interpretations Directorate
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