Income Tax Act

Version of section 108 from 2016-12-15 to 2017-09-27:

Marginal note:Definitions
  •  (1) In this subdivision,

    accumulating income

    accumulating income of a trust for a taxation year means the amount that would be the income of the trust for the year if that amount were computed

    • (a) without reference to paragraphs 104(4)(a) and (a.1) and subsections 104(5.1), (5.2) and (12) and 107(4),

    • (b) as if the greatest amount that the trust was entitled to claim under subsection 104(6) in computing its income for the year were so claimed, and

    • (c) without reference to subsection 12(10.2), except to the extent that that subsection applies to amounts paid to a trust to which paragraph 70(6.1)(b) applies and before the death of the spouse or common-law partner referred to in that paragraph; (revenu accumulé)

    beneficiary

    beneficiary under a trust includes a person beneficially interested therein; (bénéficiaire)

    capital interest

    capital interest of a taxpayer in a trust means all rights of the taxpayer as a beneficiary under the trust, and after 1999 includes a right (other than a right acquired before 2000 and disposed of before March 2000) to enforce payment of an amount by the trust that arises as a consequence of any such right, but does not include an income interest in the trust; (participation au capital)

    cost amount

    cost amount to a taxpayer at any time of a capital interest or part of it, as the case may be, in a trust, means (notwithstanding subsection 248(1) and except for the purposes of subsection 107(3.1) and section 107.4 and except in respect of a capital interest in a trust that is at that time a foreign affiliate of the taxpayer),

    • (a) where any money or other property of the trust has been distributed by the trust to the taxpayer in satisfaction of all or part of the taxpayer’s capital interest (whether on the winding-up of the trust or otherwise), the total of

      • (i) the money so distributed, and

      • (ii) all amounts each of which is the cost amount to the trust, immediately before the distribution, of each such other property,

    • (a.1) where that time (in this paragraph referred to as the “particular time”) is immediately before the time that is immediately before the time of the death of the taxpayer and subsection 104(4) or (5) deems the trust to dispose of property at the end of the day that includes the particular time, the amount that would be determined under paragraph (b) if the taxpayer had died on a day that ended immediately before the time that is immediately before the particular time, and

    • (b) in any other case, the amount determined by the formula

      (A - B) × C/D

      where

      A
      is the total of
      • (i) all money of the trust on hand immediately before that time, and

      • (ii) all amounts each of which is the cost amount to the trust, immediately before that time, of each other property of the trust,

      B
      is the total of all amounts each of which is the amount of any debt owing by the trust, or of any other obligation of the trust to pay any amount, that was outstanding immediately before that time,
      C
      is the fair market value at that time of the capital interest or part thereof, as the case may be, in the trust, and
      D
      is the fair market value at that time of all capital interests in the trust; (coût indiqué)
    eligible offset

    eligible offset at any time of a taxpayer in respect of all or part of the taxpayer’s capital interest in a trust is the portion of any debt or obligation that is assumed by the taxpayer and that can reasonably be considered to be applicable to property distributed at that time in satisfaction of the interest or part of the interest, as the case may be, if the distribution is conditional upon the assumption by the taxpayer of the portion of the debt or obligation; (montant de réduction admissible)

    eligible real property gain

    eligible real property gain[Repealed, 1995, c. 3, s. 31]

    eligible real property loss

    eligible real property loss[Repealed, 1995, c. 3, s. 31]

    eligible taxable capital gains

    eligible taxable capital gains of a personal trust for a taxation year means the lesser of

    • (a) its annual gains limit (within the meaning assigned by subsection 110.6(1)) for the year, and

    • (b) the amount determined by the formula

      A - B

      where

      A
      is its cumulative gains limit (within the meaning assigned by subsection 110.6(1)) at the end of the year, and
      B
      is the total of all amounts designated under subsection 104(21.2) by the trust in respect of beneficiaries for taxation years before that year; (gains en capital imposables admissibles)
    excluded property

    excluded property means a share of the capital stock of a non-resident-owned investment corporation that is not taxable Canadian property; (bien exclu)

    exempt property

    exempt property of a taxpayer at any time means property any income or gain from the disposition of which by the taxpayer at that time would, because the taxpayer is non-resident or because of a provision contained in a tax treaty, not cause an increase in the taxpayer’s tax payable under this Part; (bien exonéré)

    income interest

    income interest of a taxpayer in a trust means a right (whether immediate or future and whether absolute or contingent) of the taxpayer as a beneficiary under a personal trust to, or to receive, all or any part of the income of the trust and, after 1999, includes a right (other than a right acquired before 2000 and disposed of before March 2000) to enforce payment of an amount by the trust that arises as a consequence of any such right; (participation au revenu)

    inter vivos trust

    inter vivos trust means a trust other than a testamentary trust; (fiducie non testamentaire)

    non-qualifying real property

    non-qualifying real property[Repealed, 1995, c. 3, s. 31]

    pre-1972 spousal trust

    pre-1972 spousal trust at a particular time means a trust that was

    • (a) created by the will of a taxpayer who died before 1972, or

    • (b) created before June 18, 1971 by a taxpayer during the taxpayer’s lifetime

    that throughout the period beginning at the time it was created and ending at the earliest of January 1, 1993, the day on which the taxpayer’s spouse or common-law partner died and the particular time, was a trust under which the taxpayer’s spouse or common-law partner was entitled to receive all of the income of the trust that arose before the spouse’s or common-law partner’s death, unless a person other than the spouse or common-law partner received or otherwise obtained the use of any of the income or capital of the trust before the end of that period; (fiducie au profit du conjoint antérieure à 1972)

    preferred beneficiary

    preferred beneficiary under a trust for a particular taxation year of the trust means a beneficiary under the trust at the end of the particular year who is resident in Canada at that time if

    • (a) the beneficiary is

      • (i) an individual in respect of whom paragraphs 118.3(1)(a) to (b) apply for the individual’s taxation year (in this definition referred to as the “beneficiary’s year”) that ends in the particular year, or

      • (ii) an individual

        • (A) who attained the age of 18 years before the end of the beneficiary’s year, was a dependant (within the meaning assigned by subsection 118(6)) of another individual for the beneficiary’s year and was dependent on the other individual because of mental or physical infirmity, and

        • (B) whose income (computed without reference to subsection 104(14)) for the beneficiary’s year does not exceed the amount used under paragraph (c) of the description of B in subsection 118(1) for the year, and

    • (b) the beneficiary is

      • (i) the settlor of the trust,

      • (ii) the spouse or common-law partner or former spouse or common-law partner of the settlor of the trust, or

      • (iii) a child, grandchild or great grandchild of the settlor of the trust or the spouse or common-law partner of any such person; (bénéficiaire privilégié)

    qualified farm property

    qualified farm property[Repealed, 2014, c. 39, s. 28]

    qualified fishing property

    qualified fishing property[Repealed, 2014, c. 39, s. 28]

    qualified small business corporation share

    qualified small business corporation share[Repealed, 2014, c. 39, s. 28]

    settlor

    settlor,

    • (a) in relation to a testamentary trust, means the individual referred to in the definition testamentary trust in this subsection, and

    • (b) in relation to an inter vivos trust,

      • (i) if the trust was created by the transfer, assignment or other disposition of property thereto (in this definition referred to as property “contributed”) by not more than one individual and the fair market value of such of the property of the trust as was contributed by the individual at the time of the creation of the trust or at any subsequent time exceeds the fair market value of such of the property of the trust as was contributed by any other person or persons at any subsequent time (such fair market values being determined at the time of the making of any such contribution), means that individual, and

      • (ii) if the trust was created by the contribution of property thereto jointly by an individual and the individual’s spouse or common-law partner and by no other person and the fair market value of such of the property of the trust as was contributed by them at the time of the creation of the trust or at any subsequent time exceeds the fair market value of such of the property of the trust as was contributed by any other person or persons at any subsequent time (such fair market values being determined at the time of the making of any such contribution), means that individual and the spouse or common-law partner; (auteur ou disposant)

    testamentary trust

    testamentary trust, in a taxation year, means a trust that arose on and as a consequence of the death of an individual (including a trust referred to in subsection 248(9.1)), other than

    • (a) a trust created by a person other than the individual,

    • (b) a trust created after November 12, 1981 if, before the end of the taxation year, property has been contributed to the trust otherwise than by an individual on or after the individual’s death and as a consequence thereof,

    • (c) a trust created before November 13, 1981 if

      • (i) after June 28, 1982 property has been contributed to the trust otherwise than by an individual on or after the individual’s death and as a consequence thereof, or

      • (ii) before the end of the taxation year, the total fair market value of the property owned by the trust that was contributed to the trust otherwise than by an individual on or after the individual’s death and as a consequence thereof and the property owned by the trust that was substituted for such property exceeds the total fair market value of the property owned by the trust that was contributed by an individual on or after the individual’s death and as a consequence thereof and the property owned by the trust that was substituted for such property, and for the purposes of this subparagraph the fair market value of any property shall be determined as at the time it was acquired by the trust, and

    • (d) a trust that, at any time after December 20, 2002 and before the end of the taxation year, incurs a debt or any other obligation owed to, or guaranteed by, a beneficiary or any other person or partnership (which beneficiary, person or partnership is referred to in this paragraph as the “specified party”) with whom any beneficiary of the trust does not deal at arm’s length, other than a debt or other obligation

      • (i) incurred by the trust in satisfaction of the specified party’s right as a beneficiary under the trust

        • (A) to enforce payment of an amount of the trust’s income or capital gains payable at or before that time by the trust to the specified party, or

        • (B) to otherwise receive any part of the capital of the trust,

      • (ii) owed to the specified party, if the debt or other obligation arose because of a service (for greater certainty, not including any transfer or loan of property) rendered by the specified party to, for or on behalf of the trust,

      • (iii) owed to the specified party, if

        • (A) the debt or other obligation arose because of a payment made by the specified party for or on behalf of the trust,

        • (B) in exchange for the payment (and in full settlement of the debt or other obligation), the trust transfers property, the fair market value of which is not less than the principal amount of the debt or other obligation, to the specified party within 12 months after the payment was made (or, if written application has been made to the Minister by the trust within that 12-month period, within any longer period that the Minister considers reasonable in the circumstances), and

        • (C) it is reasonable to conclude that the specified party would have been willing to make the payment if the specified party dealt at arm’s length with the trust, except where the trust is the individual’s estate and that payment was made within the first 12 months after the individual’s death (or, if written application has been made to the Minister by the estate within that 12-month period, within any longer period that the Minister considers reasonable in the circumstances), or

      • (iv) incurred by the trust before October 24, 2012 if, in full settlement of the debt or other obligation the trust transfers property, the fair market value of which is not less than the principal amount of the debt or other obligation, to the person or partnership to whom the debt or other obligation is owed within 12 months after the day on which the Technical Tax Amendments Act, 2012 receives royal assent (or if written application has been made to the Minister by the trust within that 12-month period, within any longer period that the Minister considers reasonable in the circumstances); (fiducie testamentaire)

    trust

    trust includes an inter vivos trust and a testamentary trust but in subsections 104(4), (5), (5.2), (12), (13.1), (13.2), (14) and (15) and sections 105 to 107 does not include

    • (a) an amateur athlete trust, an employee life and health trust, an employee trust, a trust described in paragraph 149(1)(o.4) or a trust governed by a deferred profit sharing plan, an employee benefit plan, an employees profit sharing plan, a foreign retirement arrangement, a pooled registered pension plan, a registered disability savings plan, a registered education savings plan, a registered pension plan, a registered retirement income fund, a registered retirement savings plan, a registered supplementary unemployment benefit plan or a TFSA,

    • (a.1) a trust (other than a trust described in paragraph (a) or (d), a trust to which subsection 7(2) or (6) applies or a trust prescribed for the purpose of subsection 107(2)) all or substantially all of the property of which is held for the purpose of providing benefits to individuals each of whom is provided with benefits in respect of, or because of, an office or employment or former office or employment of any individual,

    • (b) a related segregated fund trust (within the meaning assigned by section 138.1),

    • (c) a trust deemed by subsection 143(1) to exist in respect of a congregation that is a constituent part of a religious organization,

    • (d) an RCA trust (within the meaning assigned by subsection 207.5(1)),

    • (e) a trust each of the beneficiaries under which was at all times after it was created a trust referred to in paragraph (a), (b) or (d) or a person who is a beneficiary of the trust only because of being a beneficiary under a trust referred to in any of those paragraphs, or

    • (e.1) a cemetery care trust or a trust governed by an eligible funeral arrangement,

    and, in applying subsections 104(4), (5), (5.2), (12), (14) and (15) at any time, does not include

    • (f) a trust that, at that time, is a unit trust, or

    • (g) a trust all interests in which, at that time, have vested indefeasibly, other than

      • (i) an alter ego trust, a joint spousal or common-law partner trust, a post-1971 spousal or common-law partner trust or a trust to which paragraph 104(4)(a.4) applies,

      • (ii) [Repealed, 2013, c. 34, s. 236]

      • (iii) a trust that has, in its return of income under this Part for its first taxation year that ends after 1992, elected that this paragraph not apply,

      • (iv) a trust that is at that time resident in Canada where the total fair market value at that time of all interests in the trust held at that time by beneficiaries under the trust who at that time are non-resident is more than 20% of the total fair market value at that time of all interests in the trust held at that time by beneficiaries under the trust,

      • (v) a trust under the terms of which, at that time, all or part of a person’s interest in the trust is to be terminated with reference to a period of time (including a period of time determined with reference to the person’s death), otherwise than as a consequence of terms of the trust under which an interest in the trust is to be terminated as a consequence of a distribution to the person (or the person’s estate) of property of the trust if the fair market value of the property to be distributed is required to be commensurate with the fair market value of that interest immediately before the distribution, or

      • (vi) a trust that, before that time and after December 17, 1999, has made a distribution to a beneficiary in respect of the beneficiary’s capital interest in the trust, if the distribution can reasonably be considered to have been financed by a liability of the trust and one of the purposes of incurring the liability was to avoid taxes otherwise payable under this Part as a consequence of the death of any individual. (fiducie)

  • Marginal note:Testamentary trust not disqualified

    (1.1) For the purpose of the definition testamentary trust in subsection (1), a contribution to a particular trust does not include

    • (a) a qualifying expenditure (within the meaning of section 118.04 or 118.041) of a beneficiary under the trust; or

    • (b) an amount paid to, or on behalf of, the trust by another trust if

      • (i) the trust is an individual’s graduated rate estate (determined without regard to the payment and this subsection),

      • (ii) paragraph 104(13.4)(b) applies to the other trust, for a taxation year that ends at a time determined by reference to the individual’s death, because of a joint election made under subparagraph 104(13.4)(b.1)(iii) by the other trust and the legal representative administering the estate,

      • (iii) the payment is on account of the tax payable by the individual, for the individual’s taxation year that includes the day on which the individual dies, under

        • (A) this Part, or

        • (B) the law of the province, in which the individual was resident immediately before the individual’s death, that imposes a tax on the taxable income of individuals resident in that province, and

      • (iv) the amount of the payment does not exceed the amount by which that tax payable is greater than it would have been if paragraph 104(13.4)(b) did not apply to the other trust in respect of the taxation year referred to in subparagraph (ii).

  • Marginal note:When trust is a unit trust

    (2) For the purposes of this Act, a trust is a unit trust at any particular time if, at that time, it was an inter vivos trust the interest of each beneficiary under which was described by reference to units of the trust, and

    • (a) the issued units of the trust included

      • (i) units having conditions attached thereto that included conditions requiring the trust to accept, at the demand of the holder thereof and at prices determined and payable in accordance with the conditions, the surrender of the units, or fractions or parts thereof, that are fully paid, or

      • (ii) units qualified in accordance with prescribed conditions relating to the redemption of the units by the trust,

      and the fair market value of such of the units as had conditions attached thereto that included such conditions or as were so qualified, as the case may be, was not less than 95% of the fair market value of all of the issued units of the trust (such fair market values being determined without regard to any voting rights attaching to units of the trust);

    • (b) each of the following conditions was satisfied:

      • (i) throughout the taxation year that includes the particular time (in this paragraph referred to as the “current year”), the trust was resident in Canada,

      • (ii) throughout the period or periods (in this paragraph referred to as the “relevant periods”) that are in the current year and throughout which the conditions in paragraph (a) are not satisfied in respect of the trust, its only undertaking was

        • (A) the investing of its funds in property (other than real property or an interest in real property or an immovable or a real right in an immovable),

        • (B) the acquiring, holding, maintaining, improving, leasing or managing of any real property or an interest in real property, or of any immovable or a real right in immovables, that is capital property of the trust, or

        • (C) any combination of the activities described in clauses (A) and (B),

      • (iii) throughout the relevant periods at least 80% of its property consisted of any combination of

        • (A) shares,

        • (B) any property that, under the terms or conditions of which or under an agreement, is convertible into, is exchangeable for or confers a right to acquire, shares,

        • (C) cash,

        • (D) bonds, debentures, mortgages, hypothecary claims, notes and other similar obligations,

        • (E) marketable securities,

        • (F) real property situated in Canada, and interests in such real property, or immovables situated in Canada and real rights in such immovables, and

        • (G) rights to and interests in — or, for civil law, rights in or to — any rental or royalty computed by reference to the amount or value of production from a natural accumulation of petroleum or natural gas in Canada, from an oil or gas well in Canada or from a mineral resource in Canada,

      • (iv) either

        • (A) not less than 95% of its income for the current year (computed without regard to subsections 39(2), 49(2.1) and 104(6)) was derived from, or from the disposition of, investments described in subparagraph (iii), or

        • (B) not less than 95% of its income for each of the relevant periods (computed without regard to subsections 39(2), 49(2.1) and 104(6) and as though each of those periods were a taxation year) was derived from, or from the disposition of, investments described in subparagraph (iii),

      • (v) throughout the relevant periods, not more than 10% of its property consisted of bonds, securities or shares in the capital stock of any one corporation or debtor other than Her Majesty in right of Canada or a province or a Canadian municipality, and

      • (vi) where the trust would not be a unit trust at the particular time if this paragraph were read without reference to this subparagraph and subparagraph (iii) were read without reference to clause (F), the units of the trust are listed at any time in the current year or in the following taxation year on a designated stock exchange in Canada, or

    • (c) the fair market value of the property of the trust at the end of 1993 was primarily attributable to real property or an interest in real property — or to immovables or a real right in immovables — and the trust was a unit trust throughout any calendar year that ended before 1994 and the fair market value of the property of the trust at the particular time is primarily attributable to property described in paragraph (a) or (b) of the definition qualified investment in section 204, real property or an interest in real property — or immovables or a real right in immovables — or any combination of those properties.

  • Marginal note:Income of a trust in certain provisions

    (3) For the purposes of the definitions income interest in subsection (1), lifetime benefit trust in subsection 60.011(1) and exempt foreign trust in subsection 94(1), the income of a trust is its income computed without reference to the provisions of this Act and, for the purposes of the definition pre-1972 spousal trust in subsection (1) and paragraphs 70(6)(b) and (6.1)(b), 73(1.01)(c) and 104(4)(a), the income of a trust is its income computed without reference to the provisions of this Act, minus any dividends included in that income

    • (a) that are amounts not included by reason of section 83 in computing the income of the trust for the purposes of the other provisions of this Act;

    • (b) that are described in subsection 131(1); or

    • (c) to which subsection 131(1) applies by reason of subsection 130(2).

  • Marginal note:Trust not disqualified

    (4) For the purposes of the definition pre-1972 spousal trust in subsection (1), subparagraphs 70(6)(b)(ii) and (6.1)(b)(ii) and paragraphs 73(1.01)(c) and 104(4)(a), where a trust was created by a taxpayer whether by the taxpayer’s will or otherwise, no person is deemed to have received or otherwise obtained or to be entitled to receive or otherwise obtain the use of any income or capital of the trust solely because of the payment, or provision for payment, as the case may be, by the trust of

    • (a) any estate, legacy, succession or inheritance duty payable, in consequence of the death of the taxpayer, or a spouse or common-law partner of the taxpayer who is a beneficiary under the trust, in respect of any property of, or interest in, the trust; or

    • (b) any income or profits tax payable by the trust in respect of any income of the trust.

  • Marginal note:Interpretation

    (5) Except as otherwise provided in this Part,

    • (a) an amount included in computing the income for a taxation year of a beneficiary of a trust under subsection 104(13) or (14) or section 105 shall be deemed to be income of the beneficiary for the year from a property that is an interest in the trust and not from any other source, and

    • (b) an amount deductible in computing the amount that would, but for subsections 104(6) and (12), be the income of a trust for a taxation year shall not be deducted by a beneficiary of the trust in computing the beneficiary’s income for a taxation year,

    but, for greater certainty, nothing in this subsection shall affect the application of subsection 56(4.1), sections 74.1 to 75 and 120.4 and subsection 160(1.2) of this Act and section 74 of the Income Tax Act, chapter 148 of the Revised Statutes of Canada, 1952.

  • Marginal note:Variation of trusts

    (6) Where at any time the terms of a trust are varied

    • (a) for the purposes of subsections 104(4), (5) and (5.2) and subject to paragraph (b), the trust is, at and after that time, deemed to be the same trust as, and a continuation of, the trust immediately before that time;

    • (b) for greater certainty, paragraph (a) does not affect the application of paragraph 104(4)(a.1); and

    • (c) for the purposes of paragraph 53(2)(h), subsection 107(1), paragraph (j) of the definition excluded right or interest in subsection 128.1(10) and the definition personal trust in subsection 248(1), no interest of a beneficiary under the trust before it was varied is considered to be consideration for the interest of the beneficiary in the trust as varied.

  • Marginal note:Interests acquired for consideration

    (7) For the purposes of paragraph 53(2)(h), subparagraph (c)(i) of the definition exempt amount in subsection 94(1), subsection 107(1), paragraph (j) of the definition excluded right or interest in subsection 128.1(10) and paragraph (b) of the definition personal trust in subsection 248(1),

    • (a) an interest in a trust is deemed not to be acquired for consideration solely because it was acquired in satisfaction of any right as a beneficiary under the trust to enforce payment of an amount by the trust; and

    • (b) if all the beneficial interests in a particular trust acquired by way of the transfer, assignment or other disposition of property to the particular trust were acquired by

      • (i) one person, or

      • (ii) two or more persons who would be related to each other if

        • (A) a trust and another person were related to each other, where the other person is a beneficiary under the trust or is related to a beneficiary under the trust, and

        • (B) a trust and another trust were related to each other, where a beneficiary under the trust is a beneficiary under the other trust or is related to a beneficiary under the other trust,

      any beneficial interest in the particular trust acquired by such a person is deemed to have been acquired for no consideration.

  • NOTE: Application provisions are not included in the consolidated text;
  • see relevant amending Acts. R.S., 1985, c. 1 (5th Supp.), s. 108;
  • 1994, c. 7, Sch. II, s. 77, Sch. VIII, s. 44, c. 21, s. 48;
  • 1995, c. 3, s. 31, c. 21, ss. 61, 66;
  • 1996, c. 21, s. 19;
  • 1998, c. 19, ss. 19, 129;
  • 2000, c. 12, s. 142, c. 19, s. 16;
  • 2001, c. 17, ss. 83, 241;
  • 2007, c. 2, s. 16, c. 35, ss. 28, 110;
  • 2008, c. 28, s. 11;
  • 2009, c. 2, s. 28, c. 31, s. 3;
  • 2010, c. 25, s. 19;
  • 2012, c. 31, s. 23;
  • 2013, c. 34, ss. 12, 123, 236;
  • 2014, c. 39, s. 28;
  • 2015, c. 36, s. 6;
  • 2016, c. 12, s. 38.
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