CRA finds that the sale of the two interests in a commercial trust to a 3rd party gave rise to a new trust

A non-resident common-law commercial trust had been settled with cash and Canadian real estate by two (apparently non-resident) corporations. A subsequent sale of their interests in the trust (along with the shares of the corporate trustee) to a third-party resident purchaser was found to have given rise to a resettlement of the trust, so that losses of the trust disappeared and, thus, were not available to shelter gain on the immediately ensuing sale of the real estate by the trust (which on the sale had become resident in Canada).

In this regard, the Directorate stated:

[T]he two original beneficiaries were not specifically prohibited from disposing of their capital and income interests in the Trust by selling it to someone else. However, in doing so the intention of the two original settlors is completely set aside. The intention of the settlors, as clearly spelled out in the Trust Deed, was to have the trustee hold and invest the capital of the trust for the benefit of two specific beneficiaries, the two original settlors themselves, and this is no longer the case. … [T]he transaction changed the whole substratum or “raison d’etre” of the Trust.

The Directorate went on to find (apparently in the alternative) “that the effective transfer of losses of the Trust to benefit the unrelated new majority/sole beneficiary of the Trust should be subject to GAAR,” after having quoted from Mackay.

Neal Armstrong. Summaries of 9 August 2016 Internal T.I. 2014-0526171I7 under s. 248(1) – disposition and s. 245(4).