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 208

19 August 1994 External T.I. 9415745 - 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 81
Tax Topics - Income Tax Act - Section 20 - Subsection 20(1) - Paragraph 20(1)(c) non-deductible interest on note issued to beneficiary 198

Eligible Taxable Capital Gains

Administrative Policy

26 November 2020 STEP Roundtable Q. 17, 2020-0837001C6 - Trust Pass-Through of CGE

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Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(21.2) the QSBC share character of capital gains can be flowed out in a 2-tier trust structure 412

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 284
Tax Topics - Income Tax Act - Section 256 - Subsection 256(1.2) - Paragraph 256(1.2)(f) potential beneficiary was a beneficiary 282

Administrative Policy

Preferred Beneficiary

Administrative Policy

17 May 1994 External T.I. 9411285 - 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 182

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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Tax Topics - Income Tax Act - Section 248 - Subsection 248(8) - Paragraph 248(8)(a) trusts established out of residue 42

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 248

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

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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) 180
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 154
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" 208

30 November 1998 External T.I. 9826465 - 108(1) - TESTAMENTARY TRUST

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23 February 1994 External T.I. 9336735 - TESTAMENTARY TRUST - IT-381R2

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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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Tax Topics - Income Tax Act - Section 70 - Subsection 70(6) 46

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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Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Graduated Rate Estate one estate even if offshore will unknown 134

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

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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 449
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. 135

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 230

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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Tax Topics - Income Tax Act - Section 248 - Subsection 248(3) - Paragraph 248(3)(a) application of testamentary trust rules to a substitution by testament 172

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, [1993] 2 CTC 81 (FCA)

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Tax Topics - Income Tax Act - Section 70 - Subsection 70(9) 287

Administrative Policy

15 June 2021 STEP Roundtable, Q.6

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Words and Phrases
vested indefeasibly
Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 70 - Subsection 70(5) s. 107.4(4) establishes floor for FMV proceeds under s. 70(5) of a trust capital interest that has vested indefeasibly 97

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

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Words and Phrases
vested indefeasibly

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

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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 782
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 468
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 51

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

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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 238

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 External T.I. 9408895 - TRUSTS - MEANING OF "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 113

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

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2004 Ruling 2004-0074311R3 - Income Trust

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2000 Ruling 2000-0007513 - Index Tracking Mutual Fund

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2000 Ruling 2000-0041683 - Redeemable on Demand - Ruling

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1999 Ruling 9914303 - CONVERSION TO OPEN END UNIT TRUST

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1999 Ruling 9918323 - XXXXXXXXXX Business of a Commercial Trust

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 206 - Paragraph 206(1)(h) notes of subsidiary unit trust of MFT were not foreign property - so that MFT's units also not foreign property 52

29 September 1994 Internal T.I. 9409416 - MUTUAL FUND AND UNIT TRUST

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Tax Topics - Income Tax Regulations - Regulation 4803 - Subsection 4803(2) - Paragraph 4803(2)(a) filing of offering memorandum 90

28 February 1994 External T.I. 9403285 - 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 38

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 259
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Disposition reclassification of preferred REIT units 272

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 345
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Disposition addition of preferred units 210

15 April 2003 External T.I. 2002-0167675 - Debt guaranteed by a Mutual Fund Trust

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Tax Topics - Income Tax Act - Section 132 - Subsection 132(6) guarantee fee may taint 61

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 309

2001 Ruling 2001-0075693 - REIT Voting/Income Rights

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2000 Ruling 2000-0028343 - Foreign Prop. held by Registered Investment

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12 March 1997 Ruling 9641723 - Mutual fund trusts - Special warrants

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30 November 1996 Ruling 9726153 - MUTUAL FUND TRUST FOREIGN INVESTMENT

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

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26 January 1994 External T.I. 9401165 - HEDGING TRANSACTIONS

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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. 2001-0076845 - Income Within the Meaning of 108(3)

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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

11 October 2019 APFF Roundtable Q. 15, 2019-0812741C6 F - TOSI and interest income earned by a trust

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 120.4 - Subsection 120.4(1) - Split Income - Paragraph (d) - Subparagraph (d)(i) beneficiaries of a family trust can benefit from the excluded debt exception from the TOSI rules 215

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

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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) 503
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 254

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

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Tax Topics - Treaties all U.S. Treasury Technical Explanations accepted 47

Subsection 108(7) - Interests acquired for consideration

Administrative Policy

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

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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 246
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 180

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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