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.
5 January 2007 External T.I. 2005-0133321E5 F - Validité d'un REER
Principal Issues: [TaxInterpretations translation]
Validity of an RRSP following the Supreme Court of Canada decision in Bank Nova Scotia v. Thibault, [2004] S.C.C. 29.
Position:
Still valid under Bill C-33 of November 2006 if the arrangement is not a civil law trust.
Reasons:
Proposed paragraph 248(3)(c).
XXXXXXXXXX 2005-013332
L. J. Roy, CGA
January 5, 2007
Dear Sir,
Subject: Validity of an RRSP in Quebec
This is in response to your letter of April 28, 2005, in which you asked for our comments on the validity of a registered retirement savings plan (RRSP) following the Supreme Court of Canada’s decision in Bank of Nova Scotia v. Thibault, 2004 SCC 29. In this regard, you have submitted a sample self-directed RRSP contract.
Unless otherwise indicated, all statutory references herein are to provisions of the Income Tax Act (the "Act").
As stated in paragraph 22 of Information Circular 70-6R5 dated May 17, 2002, we generally do not provide written opinions on proposed transactions otherwise than by way of advance rulings. Furthermore, the determination of whether a completed transaction has received the appropriate tax treatment is a matter for the Tax Services Offices. We can, however, offer the following general comments which we hope will be helpful.
The jurisprudence informs that the validity of a trust is a question of law. Whether a contract constitutes a trust for the purposes of the Act must be determined by reference to the civil law or the common law, as the case may be. We express no opinion as to the civil or common law.
However, Bill C-33, which received first reading on November 22, 2006, proposes to amend subsection 248(3). In this regard, proposed new paragraph 248(3)(c) will apply to an arrangement that is not a valid trust under Quebec law so that it is deemed to be a trust and the property subject to rights and obligations under that arrangement is deemed to be held in trust and not otherwise if the following conditions are satisfied:
(a) the arrangement is established before 2010,
(b) the arrangement is established by or under a written contract that is governed by the laws of the Province of Quebec, and
(c) the arrangement is entered into between an individual and a corporation that is authorized to offer to the public its services as trustee,
(d) the arrangement must be established under or pursuant to a specimen plan or fund that is presented as a declaration of trust or provides that, for the purposes of this Act, the arrangement shall be considered to be a trust, and is approved by the Canada Revenue Agency for the purpose of section 146 or 146.3 of the Act.
For arrangements that will be sold after 2009, the Explanatory Notes to the income tax legislative proposals indicate that in order to qualify as RRSPs or RRIFs under the Act, these arrangements will have to meet the civil law requirements for trusts.
If you have any comments on these changes, we suggest that you contact the Ministry of Finance.
Best regards,
Manager
Financial Sector and Exempt Entities Section
Financial Sector and Exempt Entities Division
Income Tax Rulings Directorate
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