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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: What is the amount of the survivor payment in various scenarios where the FMV of the property held by a TFSA decreases after the death of its last holder and the survivor is a beneficiary of the last holder's estate under his will?
Position: The amount of the survivor payment depends on the amount paid out of or under the TFSA to the last holder's estate, and on the amount received by the survivor from the estate in accordance with the last holder's will. Where the survivor is entitled to the whole TFSA under the terms of the last holder's will, the amount of the survivor payment will be equal to the amount of the payment made to the last holder's estate out of or under the TFSA, provided the survivor receives an amount at least equal thereto from the estate.
Reasons: Textual, contextual and purposive interpretation of the definition of "survivor payment" in paragraph (b) of the definition of "exempt contribution" in subsection 207.01(1).
FINANCIAL STRATEGIES AND FINANCIAL INSTRUMENTS ROUNDTABLE, 11 OCTOBER 2019
2019 APFF CONFERENCE
Question 4
Definition of "exempt contribution" and decline in value of tax-free savings account after death
We are querying the meaning of the expression "survivor payment" in the definition of "exempt contribution" in subsection 207.01(1) (the "Definition") where there is a decline in the value of a tax-free savings account ("TFSA") after the death of its holder in a number of different situations. Consider the following situations:
Situation 1:
- Mr. X died on January 1, 2018.
- Among other things, he held a TFSA trust with a value of $100,000 on the date of death.
- His will provided for a specific legacy of the TFSA to his spouse, Ms. Y, and a legacy of the residue of all his property to his daughter.
- During the settlement of the estate, the TFSA account remained open, but decreased in value and was worth only $90,000 when the estate was fully settled on June 1, 2019. At that time, the executor paid Ms. Y $90,000 from the liquidation of the TFSA.
- On June 15, 2019, Ms. Y contributed $100,000 to her own TFSA.
Situation 2:
- The facts are the same as in Situation 1, with the difference that, under Mr. X's will, the legacy of the residue of all his property is to his spouse, Ms. Y, with unrestricted ownership.
- Upon full settlement of the estate on June 1, 2019, the executor paid Ms. Y $90,000 from the liquidation of the TFSA and $200,000 as payment of her residual legacy.
Situation 3:
- The facts are the same as in Situation 2, except that the executor of the estate, rather than keeping the TFSA trust account open through to the settlement of the estate, closed the TFSA by liquidating the investments, which were then worth $100,000. He then transferred the $100,000 to the estate account and invested it.
- Following the full settlement of the estate, the liquidator paid Ms. Y $290,000, including both the payment of her specific legacy and the payment of her residual legacy. Ms. Y therefore received the same total amount as in Situation 2.
Situation 4:
- The facts are the same as in Situation 2, with the difference that the executor of the estate, rather than keeping the TFSA trust account open throughout the settlement of the estate, transferred the TFSA property in kind to an estate investment account, when the value of the property was $100,000.
- At the time the estate is fully settled, the property from the liquidation of the TFSA had a value of $90,000 and the executor paid $290,000 to Ms. Y, the same amount as in Situations 2 and 3.
By virtue of paragraph (d) of the Definition, the amount of the contribution cannot exceed the least of three amounts set out in subparagraphs (d)(i), (ii) and (iii) of the Definition.
The first amount, provided for in subparagraph (d)(i) of the Definition, is the amount, if any, by which the amount of the survivor payment exceeds the total of all other contributions designated by the survivor in relation to the survivor payment.
The term "survivor payment" is defined in paragraph (b) of the Definition. It is a payment made to the survivor during the rollover period, as a consequence of the individual’s death, directly or indirectly out of or under an arrangement that ceased, because of the individual’s death, to be a TFSA.
The second amount, provided for in subparagraph (d)(ii) of the definition, is the amount, if any, by which the total proceeds of disposition that would be determined in respect of the arrangement under paragraph 146.2(8)(a) exceeds the total of all other exempt contributions in respect of the arrangement made by the survivor. In all of the situations described above, this amount is equal to the fair market value ("FMV") of the trust property immediately before Mr. X's death of $100,000.
The third amount, provided for in subparagraph (d)(iii) of the definition, is not applicable in this example since the third amount only comes into play where an individual has an excess TFSA amount immediately before death or where survivor payments are made to more than one survivor of the individual, which is not the case here.
Based on our analysis, in Situation 1, the survivor payment would be $90,000, so that the lesser of the three amounts would be $90,000, thereby allowing Ms. Y to designate only that amount as an "exempt contribution" and not the $100,000 she contributed to her own TFSA. Therefore, Ms. Y would have to have a minimum of $10,000 of TFSA contribution room, otherwise she would have an excess TFSA amount. However, in Situation 2, since the value of the TFSA at death was $100,000 and Ms. Y received at least $100,000, or $290,000, from the executor of the estate, the "survivor payment" would be $100,000. Thus, the amount in subparagraph (d)(i) of the definition would be $100,000 and the lesser of the three amounts would be $100,000, thereby allowing Ms. Y to designate that amount as an "exempt contribution".
Questions to the CRA
a) Does the CRA agree with our conclusion on Situation 1?
b) Does the CRA agree with our conclusion on Situation 2?
c) What would the CRA's conclusion be in Situation 3?
d) What would the CRA's conclusion be in Situation 4?
e) Would the answers to questions 4(b), 4(c) and 4(d) be the same if the TFSA were not bequeathed to Ms. Y as an individual, but rather as part of the residual legacy to her?
CRA Response
Your question concerns the limit provided for in subparagraph (d)(i) of the Definition. That subparagraph essentially limits the amount of exempt contributions that may be paid in relation to a given "survivor payment" (within the meaning of paragraph (b) of the Definition) to the amount of that payment.
In order for a payment made to a survivor during the "rollover period" (within the meaning of paragraph (a) of the Definition) to be a survivor payment, it must meet the following conditions: it is made directly or indirectly out of or under an arrangement that ceased to be a TFSA because of the death of its last holder and 2) it is made as a consequence of the death of the individual.
The source of the payment is usually a question of fact. Given the words "directly or indirectly," a particular payment may qualify as a survivor payment, whether the money is paid directly to the survivor under the TFSA or first paid to the executor before it is paid by the executor to the survivor.
With respect to the issue of whether the payment is made as a consequence of the individual's death, paragraph 248(8)(a) provides, in particular, that a transfer, distribution or acquisition of property under or as a consequence of the terms of the will or other testamentary instrument of a taxpayer shall be considered to be a transfer, distribution or acquisition of the property as a consequence of the death of the taxpayer. Thus, to the extent that a particular payment is made in accordance with the provisions of the individual's will, the CRA is generally of the view that it is a payment made as a consequence of the individual's death.
Thus, where amounts from a deceased holder's TFSA are first paid to the executor of the estate before being paid by the executor to the survivor, the CRA is generally of the view that the survivor payment is equal to amounts paid under the TFSA to the estate of the deceased holder, to the extent that the survivor is entitled to a TFSA by virtue of the will of the deceased holder (whether as legatee by particular title, universal title, or universal) and the survivor receives an equivalent or higher amount from the estate as a result of the death of the deceased holder.
In Situation 1, the CRA agrees with your conclusion. The limit in subparagraph (d)(i) of the definition would be $90,000.
In Situation 2, the CRA's response would be the same as in Situation 1. In Situation 2, although Ms. Y receives $290,000 from the estate, the estate received only one payment $90,000 from the TFSA. The fact that Ms. Y received additional amounts from the estate does not alter that conclusion. Consequently, the limit in subparagraph (d)(i) of the Definition would be $90,000 in this case as well.
In both Situation 3 and Situation 4, Mr. X's estate received a payment of $100,000 from the TFSA, in cash or in kind, as the case may be. In such circumstances, the CRA is of the view that the survivor payment would be equal to the TFSA payments to the estate of $100,000, since Ms. Y is entitled to the TFSA and received at least an equivalent amount from the estate, in accordance with Mr. X's will.
Mélanie Beaulieu
(613) 670-8905
October 11, 2019
2019-081342
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