Section 108

Subsection 108(1) - Definitions

Beneficiary

Administrative Policy

24 June 2015 External T.I. 2015-0565951E5 F - Legatee by particular

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Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(13) allocation of interest income of succession to legatee by particular title 200

19 August 1994 T.I. 941574 (C.T.O. "Definition of Beneficiary")

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Capital Interest

Articles

Hayhurst, "Transactions in Income and Capital Interests in Trusts", 1988 Conference Report, c. 38

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Cost Amount

Administrative Policy

10 October 2014 APFF Roundtable, 2014-0538261C6 F - Disposition of capital interest/personal trust

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - 101-110 - Section 107 - Subsection 107(2) issuance of note by trust is not distribution of trust property 72
Tax Topics - Income Tax Act - Section 20 - Subsection 20(1) - Paragraph 20(1)(c) non-deductible interest on note issued to beneficiary 176

Income Interest

Cases

Canada v. Propep Inc., 2010 DTC 5088 [at 6882], 2009 FCA 274

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Tax Topics - Income Tax Act - Section 248 - Subsection 248(25) potential beneficiary was a beneficiary 274
Tax Topics - Income Tax Act - Section 256 - Subsection 256(1.2) - Paragraph 256(1.2)(f) potential beneficiary was a beneficiary 274

Administrative Policy

Preferred Beneficiary

Administrative Policy

17 May 1994 T.I. 941128 (C.T.O. "Step-grandchild as a Preferred Beneficiary")

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Settlor

Administrative Policy

IT-374 "Meaning of 'Settlor'"

Testamentary Trust

Administrative Policy

16 December 2014 External T.I. 2014-0539841E5 F - Testamentary Trust

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Tax Topics - Income Tax Act - Section 248 - Subsection 248(8) - Paragraph 248(8)(a) subsequent will-directed transfer from spousal trust to residue trust occurred as consequence of death 176

11 October 2013 APFF Roundtable, 2013-0493671C6 F - Testamentary trust beneficiary of inter vivos trust

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12 June 2012 STEP CRA Roundtable, 2012-0442931C6 - 2012 STEP Question 8

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 248 - Subsection 248(8) - Paragraph 248(8)(a) trusts established out of residue 40

26 June 2012 External T.I. 2011-0417391E5 F - Bien remis à une fiducie

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Words and Phrases
contributed
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Tax Topics - Income Tax Act - Section 248 - Subsection 248(25) testamentary trust that was included in the class of potential beneficiaries of a discretionary inter vivos trust was a beneficiary 230

14 March 2012 External T.I. 2011-0423291E5 F - Fiducie pour soi-même sans limite d'âge

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 73 - Subsection 73(1.01) - Paragraph 73(1.01)(c) - Subparagraph 73(1.01)(c)(ii) joint protective trust would not satisfy s. 73(1.01)(c)(ii) 174
Tax Topics - Income Tax Act - Section 73 - Subsection 73(1.01) - Paragraph 73(1.01)(c) - Subparagraph 73(1.01)(c)(iii) - Clause 73(1.01)(c)(iii)(A) two spouses separate from their children can create a joint spousal or common-law partner trust 142
Tax Topics - Income Tax Act - 101-110 - Section 107.4 - Subsection 107.4(1) - Paragraph 107.4(1)(a) joint protective trust would not satisfy paras. (a) and (e) of "qualifying disposition" 189

30 November 1998 External T.I. 5-982646 -

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23 February 1994 External T.I. 5-933673 -

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5 March 1991 T.I. (Tax Window, No. 1, p. 22, ¶1137)

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30 April 1990 Memorandum: 26 April 1990 T.I. (September 1990 Access Letter, ¶1427)

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19 April 1990 T.I. (July 1990 Access Letter, ¶1324)

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 70 - Subsection 70(6) 44

7 December 1989 T.I. (May 1990 Access Letter, ¶1225)

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26 September 89 T.I. (February 1990 Access Letter, ¶1113)

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IT-381R2 "Trusts - Deduction of Amounts Paid or Payable to Beneficiaries and Flow-Through of Taxable Capital Gains to Beneficiaries" under "Double Taxation Relief"

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Articles

Elie Roth, Tim Youdan, Chris Anderson, Kim Brown, "Classification of Trusts for Income Tax Purposes", Chapter 2 of Canadian Taxation of Trusts (Canadian Tax Foundation), 2016.

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H. Carr, "Definition of a Testamentary Trust", Goodman on Estate Planning, Vol. VII, No. 1, 1998, p. 490.

Paragraph (b)

Administrative Policy

10 June 2016 STEP Roundtable Q. 2, 2016-0634881C6 - GRE and multiple wills

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Graduated Rate Estate one estate even if offshore will unknown 130

10 June 2016 STEP Roundtable Q. 1, 2016-0634871C6 - GREs and Testamentary Trusts

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Graduated Rate Estate division of an estate into testamentary trusts may accelerate (perhaps back to inception) the demise of the estate as a GRE 415
Tax Topics - Income Tax Act - Section 118.1 - Subsection 118.1(5.1) estate must continue to satisfy the other GRE requirements following 36 mos. 129

7 October 2011 Roundtable, 2011-0411851C6 F - Fiducie de protection d'actifs

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Tax Topics - General Concepts - Effective Date trust deed clause deeming trust property to be distributed immediately prior to death would not be recognized as taking effect at that time 214

Paragraph (c)

Articles

Elie Roth, Tim Youdan, Chris Anderson, Kim Brown, "Classification of Trusts for Income Tax Purposes", Chapter 2 of Canadian Taxation of Trusts (Canadian Tax Foundation), 2016.

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Paragraph (d)

Administrative Policy

11 March 2013 External T.I. 2012-0432201E5 F - Payment of tax by an institute

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 248 - Subsection 248(3) - Paragraph 248(3)(a) application of testamentary trust rules to a substitution by testament 166

Articles

Elie Roth, Tim Youdan, Chris Anderson, Kim Brown, "Classification of Trusts for Income Tax Purposes", Chapter 2 of Canadian Taxation of Trusts (Canadian Tax Foundation), 2016.

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Trust

Paragraph (a.1)

Cases

Labow v. Canada, 2012 DTC 5001 [at 6501], 2011 FCA 305

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Paragraph (g)

See Also

The Queen v. Boger Estate, 93 DTC 5276 (FCA)

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 70 - Subsection 70(9) 277

Administrative Policy

29 May 2018 STEP Roundtable Q. 9, 2018-0744111C6 - Vested Indefeasibly

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2016 Ruling 2014-0552321R3 F - Trust to trust Transfer

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Disposition - Paragraph (f) para. (f) exception applied on transfer from old discretionary inter vivos family trust to new trust with terms considered to be substantively the same 750
Tax Topics - Income Tax Act - Section 74.4 - Subsection 74.4(4) having a trust interest vest indefeasibly in a minor is consistent with the minor not receiving or having any use of the trust capital 458
Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(5.8) 104(5.8) applied to transfer to new trust with the same beneficiaries and essentially the same terms 45

2015 Ruling 2015-0610391R3 - Whether 75(2) will apply to new trusts

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 75 - Subsection 75(2) 75(2) does not apply to trust fund where the income therefrom but not the capital can be distributed to the settlor, and no encroachment decision occurs during his lifetime 212

18 December 2013 External T.I. 2011-0414841E5 F - All interests vested indefeasibly

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Words and Phrases
vested indefeasibly

10 October 2008 Roundtable, 2008-0285051C6 F - Fiducies exclues aux fins de 104(4)

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7 November 2001 External T.I. 2000-0038195 - Indefeasible Vesting of Interest in Trust

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5 January 1995 External T.I. 9427445 - WHEN DO TRUST INTERESTS VEST INDEFEASIBLY?

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30 June 1994 T.I. 9408895 ["vested indefeasibly"]

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Words and Phrases
vested indefeasibly

Articles

Catherine Brown, "Vested Indefeasibly: Its Importance for Tax Purposes", 2006 Canadian Tax Journal, Issue No. 4

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Words and Phrases
vested indefeasibly

Subsection 108(2) - When trust is a unit trust

Paragraph 108(2)(a)

Administrative Policy

2018 Ruling 2017-0723421R3 - Creation of a new Mutual Fund Trust

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 253.1 MFT investing directly in subsidiary LP 109

16 November 2015 External T.I. 2015-0595041E5 - Mutual Fund Trusts & 108(2)(a)(i)

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2004 Ruling 2004 - 007431

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16 August 2000 Ruling 2000-000751

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2000 Ruling 2000-004168 -

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24 December 1999 Ruling 991430

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1 January 1999 Ruling 991832

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 206 - Paragraph 206(1)(h) 30

1999 Ruling 991832

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29 September 1994 Memorandum 940941 (C.T.O. "Mutual Fund and Unit Trust")

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28 February 1994 T.I. 940328 (C.T.O. "Real Estate Investment Trust")

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11 February 1993 Memorandum (Tax Window, No. 29, p. 9, ¶2428)

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91 C.R. - Q.6

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22 November 89 Review Committee Memorandum (April 90 Access Letter, ¶1177)

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Articles

Elie Roth, Tim Youdan, Chris Anderson, Kim Brown, "Classification of Trusts for Income Tax Purposes", Chapter 2 of Canadian Taxation of Trusts (Canadian Tax Foundation), 2016.

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Allgood, "Athabasca Oil Sands Trust: Tax Implications of Royalty Trust", Corporate Finance, Vol. V, No. 1, p. 348

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Botz, "Mutual Fund Trusts and Unit Trusts: Selected Tax and Legal Issues", 1994 Canadian Tax Journal, Vol. 42, No. 4, p. 1037.

Paragraph 108(2)(b)

See Also

Shaughnessy v. The Queen, 2002 DTC 1272 (TCC)

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Clevite Development Ltd. v. MNR, 61 DTC 1093 (Ex. Ct.)

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International Brotherhood of Teamsters v. Daniel, 439 U.S. 551 (1979)

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Re Ontario Securities Commission and British Canadian Commodity Options Ltd. (1979), 22 OR (2d) 278 (HCJ.)

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Pacific Coast Coin Exchange v. Ontario Securities Commission (1977), 80 DLR (3d) 529, [1978] 2 S.C.R. 112

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Prather v. King Resources Co., [1973] 1 WWR 700 (Alta. C.A.)

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Canadian & Foreign Securities Co. Ltd. v. MNR, 72 DTC 6354, [1972] CTC 391 (FCTD)

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State of Hawaii v. Hawaii Market Center, Inc., 485 P. 2d 105 (1971 (Hawaii S.C.))

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Re Peczenik's Settlement, [1964] 2 All E.R. 339 (Ch. D.)

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C.I.R. v. Reinhold (1953), 34 TC 389 (C.S. (1st. Div.))

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Tootal Broadhurst Lee Co. Ltd. v. I.R.C., [1949] 1 All E.R. 261 (HL)

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Words and Phrases
investments
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Tax Topics - Statutory Interpretation - Ordinary Meaning 36

Re Lilly's Will Trust, [1948] 2 All E.R. 906 (Ch. D.)

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Words and Phrases
investments

In Re Power, [1947] 1 Ch. 572

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SEC v. Howey Co., 328 U.S. 293 (1946)

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C.I.R. v. Desoutter Bros., Ltd. (1945), 29 TC 155 (C.A.)

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Words and Phrases
investments

In Re Ferry, Allen v. Allen, [1945] N.Z.L.R. 448 (S.C.)

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Words and Phrases
investments

In re Lewis' Will Trust, [1937] 1 Ch. 118

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Khoo Tek Keong v. Ch'ng Joo Tuan Neoh, [1934] A.C. 529 (PC)

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Pennsylvania Ry. Co. v. Interstate Commerce Commission, 66 F. (2d) 37 (3d C.A. (1933))

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Words and Phrases
investments

C.I.R. v. Tyre Investment Trust, Ltd. (1924), 12 TC 646 (K.B.D.)

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Wragg v. Palmer, [1919] 2 Ch. 58

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Words and Phrases
investing

Price v. Newton, [1905] 2 Ch. 55

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Commissioner of Taxes v. Australian Mutual Provident Society (1902), 22 N.Z.L.R. 445 (C.A.)

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Words and Phrases
investments

Worts v. Worts (1889), 18 OR 332 (Ch. D.)

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Re Barwick, [1884] OR 710 (Ch. D.)

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Smith v. Smith (1876), 23 Ch. R. 114 (Ont CA)

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Archibald v. Hartley (1852), 21 L.J. Ch. 399

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Administrative Policy

2012 Ruling 2011-0429611R3 - Variation of Trust Indenture

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(7.1) addition of preferred units 253
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Disposition reclassification of preferred REIT units 260

2012 Ruling 2011-0410181R3 - Variation of trust indenture

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(7.1) addition of preferred units with proportionate allocation of taxable income to distributions 327
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Disposition addition of preferred units 194

15 April 2003 External T.I. 2002-016767 -

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Tax Topics - Income Tax Act - Section 132 - Subsection 132(6) guarantee fee may taint 59

17 March 2003 External T.I. 2001-0095675 - Unit Trust investing in a limited partnership

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Tax Topics - Income Tax Act - Section 96 Ontario partnership debt owing to limited partner respected 285

2001 Ruling 2001 007569 [parking lots]

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2000 Ruling 2000-002834 -

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12 March 1997 TI 964172

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1997 Ruling 972615 [tests applied cost amounts]

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5 February 1990 TI 5-9434 [bank deposits as cash]

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26 January 1994 External T.I. 5-940116 -

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13 December 1991 T.I. (Tax Window, No. 11, p. 6, ¶1538)

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19 April 1990 T.I. (September 1990 Access Letter, ¶1444)

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6 July 1989 TI 5-8243 [hedging contracts as marketable securities/use of costs rather than FMV]

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Articles

Richards, "Real Estate Investment Trust: New Opportunities", Canadian Current Tax, July 1994, p. J. 57.

Brussa, "Creative Use of Mutual Fund Trusts and Royalty Interest as Financing Vehicles", Canadian Petroleum Tax Journal, Spring 1988, p. 35.

K.A. Lahey, "The Taxation of Securities Transactions - II: Recent Legislation", 1980 McGill Law Journal, pp. 46-81, p. 73

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Subsection 108(3) - Income of a trust in certain provisions

See Also

Re Lotzkar (1985), 17 DLR (4th) 539 (BCCA)

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Carver v. Duncan; Bosanquet v. Allen, [1985] BTC 248 (HL)

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Administrative Policy

26 April 2001 External T.I. 2001-007684 -

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Articles

Elie Roth, Tim Youdan, Chris Anderson, Kim Brown, "Taxation of Trusts Resident in Canada", Chapter 3 of Canadian Taxation of Trusts, (Canadian Tax Foundation), 2016.

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 251.1 - Subsection 251.1(4) - Paragraph 251.1(4)(d) 437
Tax Topics - Income Tax Act - Section 251.1 - Subsection 251.1(1) - Paragraph 251.1(1)(g) - Subparagraph 251.1(1)(g)(ii) 115
Tax Topics - Income Tax Act - Section 164 - Subsection 164(6) 141
Tax Topics - Income Tax Act - Section 112 - Subsection 112(3.2) 331
Tax Topics - Income Tax Act - 101-110 - Section 107 - Subsection 107(1) 144
Tax Topics - Income Tax Act - Section 251.2 - Subsection 251.2(3) - Paragraph 251.2(3)(b) 112
Tax Topics - Income Tax Act - Section 252.2 - Subsection 252.2(2) 115
Tax Topics - Income Tax Act - Section 256 - Subsection 256(7) - Paragraph 256(7)(i) 176
Tax Topics - Income Tax Act - Section 70 - Subsection 70(6) - Paragraph 70(6)(d.1) 161
Tax Topics - Income Tax Act - Section 70 - Subsection 70(6) 1201
Tax Topics - Treaties - Income Tax Conventions - Article 29B 239
Tax Topics - Income Tax Act - Section 248 - (2)-(41) 157
Tax Topics - Income Tax Act - Section 248 - Subsection 248(8) 199
Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(4) - Paragraph 104(4)(a.2) 59
Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(4) - Paragraph 104(4)(a.3) 38
Tax Topics - Income Tax Act - Section 118.1 - Subsection 118.1(6) 174
Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(6) 164
Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(24) 163
Tax Topics - Income Tax Act - 101-110 - Section 105 - Subsection 105(1) 91
Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(18) 49
Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(7.01) 66
Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(19) 311
Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(13) 125
Tax Topics - Income Tax Act - Section 20 - Subsection 20(1) - Paragraph 20(1)(bb) 144
Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(2) 379

Subsection 108(5) - Interpretation

Paragraph 108(5)(a)

See Also

Kemp v. MNR, [1947] CTC 343, 3 DTC 1078 (Ex Ct)

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Words and Phrases
derived

Gilhooly v. MNR, [1945] CTC 203 (Ex Ct)

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Words and Phrases
derived

Archer-Shee v. Baker (1927), 11 TC 749 (HL)

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Administrative Policy

13 June 2017 STEP Roundtable Q. 4, 2017-0695141C6 - U.S. grantor trust

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 126 - Subsection 126(1) dual-resident individual who is subject to direct U.S. tax on income from a s. 94(3) trust can generate a FTC if the trust income is annually distributed or he elects under s. 94(16) 493
Tax Topics - Income Tax Act - Section 94 - Subsection 94(16) election of US-citizen/Cdn-resident beneficiary of grantor trust so as to generate FTC 250

24 March 2016 Internal T.I. 2016-0634191I7 - Income from a U.S. trust

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Locations of other summaries Wordcount
Tax Topics - Treaties all U.S. Treasury Technical Explanations accepted 45

Subsection 108(7) - Interests acquired for consideration

Administrative Policy

11 June 2015 External T.I. 2014-0522641E5 F - Usufruct

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - 101-110 - Section 110.6 - Subsection 110.6(1) - Qualified Farm or Fishing Property termination of usufruct between father and son on farmland, which was a deemed trust, did not entail disposition of qualified farm property 226
Tax Topics - Income Tax Act - Section 73 - Subsection 73(3) creation of usufruct between father and son entails transfer of trust interest, not farm property 156

S6-F2-C1 - Disposition of an Income Interest in a Trust

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7 January 2004 External T.I. 2003-001953 -

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