Section 75

Subsection 75(2) - Trusts

Cases

Fiducie financière Satoma v. Canada, 2018 FCA 74

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Tax Topics - Income Tax Act - Section 245 - Subsection 245(1) - Tax Benefit tax benefit to trust from tax-free dividend even though not distributed to a beneficiary 277
Tax Topics - Income Tax Act - Section 245 - Subsection 245(4) using ss. 75(2) and 112(1) for tax-free dividends to trust thwarted s. 112(1) object to tax earnings when ultimately distributed 319
Tax Topics - Income Tax Act - Section 3 pervasive rule that the same income is not to be taxed in 2 persons’ hands 148
Tax Topics - Statutory Interpretation - Double Taxation (Presumption Against) inclusion of income in more than one taxpayer’s hands is contrary to s. 3 173
Tax Topics - Income Tax Act - Section 112 - Subsection 112(1) abusive to use s. 112(1) so as to avoid ultimate taxation of individuals 180

Canada v. Sommerer, 2012 DTC 5126 [at 7219], 2012 FCA 207

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Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(1) Austrian foundation likely not a trust 181
Tax Topics - Income Tax Act - Section 248 - Subsection 248(5) 84
Tax Topics - Treaties treaty applies to economic double taxation 356
Tax Topics - Treaties - Income Tax Conventions - Article 13 attributed gain not included 415

Fraser v. The Queen, 91 DTC 5123 (FCTD), aff'd 95 DTC 5684 (FCA)

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The Queen v. Quinn, 73 DTC 5215, [1973] CTC 258 (FCTD)

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See Also

Fiducie Financière Satoma v. The Queen, 2017 TCC 84, aff'd 2018 FCA 74

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 245 - Subsection 245(4) use of s. 75(2) attribution rule and s. 112(1) DRD to extract surplus to a family trust was abusive 569
Tax Topics - Income Tax Act - Section 245 - Subsection 245(1) - Tax Benefit tax benefit even though corporate surplus stripped in favour of family trust had not so far been distributed 215

Brent Kern Family Trust v. The Queen, 2013 DTC 1249 [at 1396], 2013 TCC 327, aff'd 2014 FCA 230

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Sommerer v. The Queen, 2011 DTC 1162 [at 845], 2011 TCC 212, aff'd 2012 FCA 207

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Tax Topics - General Concepts - Effective Date retroactive amendment respected 282
Tax Topics - Statutory Interpretation - Treaties 57
Tax Topics - Treaties 176

Garron Family Trust v. The Queen, 2009 DTC 1568, 2009 TCC 450, aff'd sub nom St. Michael Trust Corp. v. The Queen, 2010 DTC 5189 [at 7361], 2010 FCA 309, aff'd sub nom Fundy Settlement v. Canada, 2012 SCC 14

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Howson c. The Queen, 2007 DTC 141, 2006 TCC 644

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Administrative Policy

17 July 2019 Internal T.I. 2017-0718021I7 - Deregistration of TFSA

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 146.2 - Subsection 146.2(5) - Paragraph 146.2(5)(c) s. 75(2) applied to TFSA when it ceased to qualify 211

7 June 2019 STEP Roundtable Q. 12, 2019-0798301C6 - Attribution under 75(2)

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Tax Topics - Income Tax Regulations - Regulation 204 - Subsection 204(1) Satoma has not changed the CRA view that trusts must report income that is attributed to the settlor under s. 75(2) 290

29 May 2018 STEP Roundtable Q. 11, 2018-0748241C6 - Subsection 104(13.4)

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(6) - Paragraph 104(6)(b) - Element B - Subparagraph (i) s. 104(4) gain is taxable in an alter ego trust 141

16 February 2017 Internal T.I. 2016-0669881I7 - 75(2) applicability to trust

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12 July 2016 External T.I. 2014-0560361E5 - Cdn beneficiary of US living trust

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(1) question of fact whether a U.S. revocable living trust is an excluded trust 134
Tax Topics - Income Tax Act - Section 126 - Subsection 126(1) whether there is a foreign tax credit for US tax paid by the grantor of a revocable US living trust 256

10 June 2016 STEP Roundtable Q. 13, 2016-0645811C6 - Filing Obligation for 75(2) trust

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Tax Topics - Income Tax Regulations - Regulation 204 - Subsection 204(1) s.75(2) trust generating losses need not file T3 returns 200

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

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Tax Topics - Income Tax Act - 101-110 - Section 108 - Subsection 108(1) - Trust - Paragraph (g) interests vested (but not distributed) before 21st anniversary 150

13 April 2015 External T.I. 2012-0449141E5 F - Usufruct

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Tax Topics - Income Tax Act - 101-110 - Section 107 - Subsection 107(2.1) 107(2.1) application to termination of usufruct created for valuable consideration 126
Tax Topics - Income Tax Act - Section 248 - Subsection 248(3) application of trust provisions to creation of usufruct 95

10 October 2014 APFF Roundtable, 2014-0538241C6 F - 75(2) and definition of "earned income" in 146(1)

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 146 - Subsection 146(1) - Earned Income character preservation of s. 75(2) attributed income 122
Tax Topics - Income Tax Act - Section 40 - Subsection 40(3.6) basis adjustment for denied capital loss (otherwise subject to s. 75(2) attribution) at trust level 208

3 October 2014 External T.I. 2013-0476871E5 - Subsection 75(2)

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16 June 2014 STEP Roundtable, 2014-0523061C6 - Trust audit issues

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16 June 2014 STEP Roundtable, 2014-0523001C6 - Trusts structured to invoke 75(2)

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Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(13) Brent Kern schemes don't work even if Sommerer issue fixed 315

12 February 2014 Internal T.I. 2013-0508841I7 F - Application of subsection 75(2)

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23 January 2014 External T.I. 2013-0500711E5 F - Paragraph 75(2)

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11 October 2013 APFF Roundtable, 2013-0495721C6 F - APFF 2013- Round table question 7

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Locations of other summaries Wordcount
Tax Topics - General Concepts - Fair Market Value - Shares FMV is a question of fact within TCC's discretion 209

11 June 2013 STEP Roundtable Q. 9, 2013-0480351C6 - STEP CRA Roundtable Q9 - June 2013

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Words and Phrases
sale

23 May 2013 Internal T.I. 2013-0481651I7 F - Attribution rules- business loss

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14 February 2013 Internal T.I. 2011-0424341I7 F - Amounts forwarded to trustee/beneficiary

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Tax Topics - Income Tax Act - Section 56 - Subsection 56(2) s. 56(2) did not apply to trustee/beneficiary of discretionary trust who directed income to her children and did not exercise discretion in her own favour 218
Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(13) income was received by children beneficiaries as agent for their mother 263
Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(6) - Paragraph 104(6)(b) Quebec discretionary trust with two named trustees but, in fact, only one trustee, would not be entitled to s. 104(6)(b) deductions 155

23 June 2010 External T.I. 2010-0365581E5 F - Règles d'attribution de l'article 74.2

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Tax Topics - Income Tax Act - Section 74.5 - Subsection 74.5(1) - Paragraph 74.5(1)(c) s. 74.2(1) inapplicable to transfer at FMV of property to a discretionary family trust, with capital gain on property subsequently distributed to spouse of transferor 129

5 July 2012 Internal T.I. 2010-0388551I7 F - Fiducie - retour de sommes

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Tax Topics - Income Tax Act - 101-110 - Section 105 - Subsection 105(1) income distributed to daughter-in-law who in fact was not a beneficiary includible in her income under s. 105(1) but not deductible by trust under s. 104(6) 166
Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(13) capital gain distributed by family trust to children and purportedly lent by them to their parents (also beneficiaries) was instead included in the parents’ income under s. 104(13) 419
Tax Topics - Income Tax Act - 101-110 - Section 110.6 - Subsection 110.6(6) Foisy test of mental element accepted 238

4 March 2013 External T.I. 2011-0428661E5 - trust payments to minor

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Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(24) promissory note effecting payment of distribution potentially may be delivered after year end 341

5 October 2012 APFF Roundtable, 2012-0453591C6 F - Prêt à une fiducie

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5 October 2012 APFF Roundtable, 2012-0453891C6 F - Price Adjustment Clause

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Locations of other summaries Wordcount
Tax Topics - General Concepts - Effective Date operation of freeze price adjustment clause depends on share actually being adjusted and can apply for s. 75(2) purposes 337

28 November 2010 CTF Roundtable, 2010-0386351C6 - 2010 CTF Q#10 - T3 Reporting and 75(2)

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20 October 2009 External T.I. 2009-0328441E5 F - Fiducie testamentaire

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Tax Topics - Income Tax Act - Section 248 - Subsection 248(8) - Paragraph 248(8)(a) unlikely to have been a distribution as a consequence of death where mooted testamentary trust formed by beneficiaries by their own agreement 302

30 September 2009 External T.I. 2009-0317641E5 F - Attribution de revenu

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Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(6) - Paragraph 104(6)(b) discretionary trust could distribute, and deduct under s. 104(6), a dividend received by it to a corporate beneficiary incorporated after the dividend’s receipt 126

23 June 2008 External T.I. 2008-0268121E5 F - 75(2) et Prêt consenti à une fiducie

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23 April 2009 External T.I. 2008-0301241E5 F - Fiducie d'invest. à participation unitaire-75(2)

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Tax Topics - Income Tax Act - Section 53 - Subsection 53(2) - Paragraph 53(2)(h) - Subparagraph 53(2)(h)(i.1) CRA could extend IT-369R, para. 10 to avoid ACB reductions to unit trust units where s. 75(2) applies 301
Tax Topics - Income Tax Act - Section 248 - Subsection 248(28) doubtful that s. 248(28)(a) can be applied to preclude ACB grind 181

25 March 2009 External T.I. 2008-0300401E5 F - Fiducie en faveur de soi-même - prêt sans intérêt

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(13.1) s. 104(13.1) election generally available where no s. 75(2) application, which is not engaged by the individual’s payment of trust-level taxes 357
Tax Topics - Income Tax Act - Section 56 - Subsection 56(4.1) s. 56(4.1) inapplicable to NIB loan made by individual to his alter ego trust 139
Tax Topics - General Concepts - Payment & Receipt individual pays trust taxes when he receives trust distributions net of such taxes 34

16 December 2008 External T.I. 2008-0279741E5 F - Renonciation au capital d'une fiducie

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 248 - Subsection 248(9) - Disclaimer legally impossible for a beneficiary of a discretionary trust to partially renounce income from a specific trust property 262
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Disposition - Paragraph (i) non-disposition distribution of non-taxable portion of trust capital gains avoids a gain under s. 107(2.1) 375
Tax Topics - Income Tax Act - Section 54 - Proceeds of Disposition settlor’s renunciation of capital interest (but not income interest) prior to trustees’ exercise of discretion to distribute a capital gain would generate nil proceeds and not engage s. 56(2) or (4) 194
Tax Topics - Income Tax Act - Section 69 - Subsection 69(1) - Paragraph 69(1)(b) s. 69(1) does not apply to a renunciation of trust capital interest since no disposition "to" any person 44
Tax Topics - Income Tax Act - Section 56 - Subsection 56(2) s. 56(2) inapplicable to renunciation of capital interest in a trust 45
Tax Topics - Income Tax Act - Section 56 - Subsection 56(4) s. 56(4) inapplicable to disclaimer of capital interest in a trust 43

11 September 2006 STEP Roundtable Q. 4, 2006-0185571C6 - 2006 STEP Conference -Question 4

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2004 Ruling 2004-006020 -

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7 February 2003 External T.I. 2002-012676A - Attribution of NPI Royalty Income

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25 September 2000 External T.I. 2000-0025855 - PRIVATE FOUNDATION - NOVA SCOTIA LIMITED

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13 October 1999 External T.I. 9832385 - ATTRIBUTION TO CONTRIBUTOR TO A TRUST

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6 July 1998 External T.I. 9811115 - ATTRIBUTION & GENUINE LOAN

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May 1998 Advance Life Underwriting Round Table, No. 9807000

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3 December 1997 External T.I. 9622765 - NON-RESIDENT TRUST - ATTRIBUTION

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Tax Topics - Income Tax Act - Section 94 - old 43

10 January 1996 External T.I. 9406865 - NON RESIDENT DISCRETIONARY TRUSTS

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Tax Topics - Income Tax Act - Section 94 - old 103

21 August 1995 External T.I. 9514275 - 75(2) - ESTATE FREEZE- SUBCRIPTION OF SHARES BY A TRUST

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23 June 1995 External T.I. 9508185 - ATTRIBUTION OF INCOME TO A TRUST

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14 June 1994 External T.I. 9405845 - TRUST PROPERTY ACQUIRED BY MORTGAGE

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28 April 1994 External T.I. 9411115 - ATTRIBUTION

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27 January 1994 External T.I. 9332575 - ATTRIBUTION OF INCOME

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1994 A.P.F.F. Round Table, Q. 24

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1994 I.C.A.A. Round Table, Q.4

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19 May 1993 T.I. (Tax Window, No. 31, p. 13, ¶2528)

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13 January 1993 T.I. (Tax Window, No. 28, p. 20, ¶2380)

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11 August 1992, T.I. 921396 (May 1993 Access Letter, p. 197, ¶C56-226)

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22 July 1992, T.I. 920736 (March 1993 Access Letter, p. 71, ¶C56-219)

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1992 A.P.F.F. Annual Conference, Q. 19 (January - February 1993 Access Letter, p. 57)

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19 June 1992 T.I. 9218450 (January - February 1993 Access Letter, p. 20, ¶C56-212)

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16 June 1992 External T.I. 5-920008 -

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27 February 1992 T.I. (Tax Window, No. 17, p. 8, ¶1766)

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91 C.R. - Q.8

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90 C.R. - Q23

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16 November 89 T.I. (April 90 Access Letter, ¶1175)

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88 C.R. - Q.32

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88 C.R. - Q.48

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86 C.R. - Q.46

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84 C.R. - Q.30

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IT-369R "Attribution of Trust Income to Settlor"

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 248 - Subsection 248(28) 24

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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Carmen Thériault, "Alter Ego and Joint Partner Trust", 21 Estates, Trusts & Pensions Journal, p. 345.

Darling, "Bare Trusts", 1989 Corporate Management Tax Conference, c. 8.

Saunders, "Inter Vivos Discretionary Family Trust: A Potpourri of Issues and Traps", 1993 Conference Report, pp. 37:6-14.

Subsection 75(3) - Exceptions

Cases

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

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