Income Tax Act

Marginal note:Definitions

• 146.1 (1) In this section,

  accumulated income payment

  paiement de revenu accumulé

  accumulated income payment under an education savings plan means any amount paid out of the plan, other than a payment described in any of paragraphs (a) and (c) to (e) of the definition trust, to the extent that the amount so paid exceeds the fair market value of any consideration given to the plan for the payment of the amount; (paiement de revenu accumulé)

  beneficiary

  bénéficiaire

  beneficiary, in respect of an education savings plan, means a person, designated by a subscriber, to whom or on whose behalf an educational assistance payment under the plan is agreed to be paid if the person qualifies under the plan; (bénéficiaire)

  contribution

  cotisation

  contribution to an education savings plan does not include an amount paid into the plan under or because of

  • (a) the Canada Education Savings Act or a designated provincial program, or

  • (b) any other program that has a similar purpose to a designated provincial program and that is funded, directly or indirectly, by a province (other than an amount paid into the plan by a public primary caregiver in its capacity as subscriber under the plan); (cotisation)

  designated provincial program

  programme provincial désigné

  designated provincial program means

  • (a) a program administered pursuant to an agreement entered into under section 12 of the Canada Education Savings Act, or

  • (b) a program established under the laws of a province to encourage the financing of children’s post-secondary education through savings in registered education savings plans; (programme provincial désigné)

  educational assistance payment

  paiement d’aide aux études

  educational assistance payment means any amount, other than a refund of payments, paid out of an education savings plan to or for an individual to assist the individual to further the individual’s education at a post-secondary school level; (paiement d’aide aux études)

  education savings plan

  régime d’épargne-études

  education savings plan means an arrangement entered into between

  • (a) any of the following, namely,

    • (i) an individual (other than a trust),

    • (ii) an individual (other than a trust) and the spouse or common-law partner of the individual, and

    • (iii) a public primary caregiver of a beneficiary, and

  • (b) a person or organization (in this section referred to as a “promoter”)

  under which the promoter agrees to pay or to cause to be paid educational assistance payments to or for one or more beneficiaries; (régime d’épargne-études)

  post-secondary educational institution

  établissement d’enseignement postsecondaire

  post-secondary educational institution means

  • (a) an educational institution in Canada that is described in paragraph (a) of the definition designated educational institution in subsection 118.6(1), or

  • (b) an educational institution outside Canada that provides courses at a post-secondary school level and that is

    • (i) a university, college or other educational institution at which a beneficiary was enrolled in a course of not less than 13 consecutive weeks, or

    • (ii) a university at which a beneficiary was enrolled on a full-time basis in a course of not less than three consecutive weeks; (établissement d’enseignement postsecondaire)

  post-secondary school level

  niveau postsecondaire

  post-secondary school level includes a program of courses, at an institution described in subparagraph (a)(ii) of the definition designated educational institution in subsection 118.6(1), of a technical or vocational nature designed to furnish a person with skills for, or improve a person’s skills in, an occupation; (niveau postsecondaire)

  pre-1972 income

  pre-1972 income[Repealed, 1998, c. 19, s. 38(1)]

  public primary caregiver

  responsable public

  public primary caregiver, of a beneficiary under an education savings plan in respect of whom a special allowance is payable under the Children’s Special Allowances Act, means the department, agency or institution that maintains the beneficiary or the public trustee or public curator of the province in which the beneficiary resides; (responsable public)

  qualified investment

  placement admissible

  qualified investment for a trust governed by a registered education savings plan means

  • (a) an investment that would be described by any of paragraphs (a) to (d), (f) and (g) of the definition qualified investment in section 204 if the reference in that definition to “a trust governed by a deferred profit sharing plan or revoked plan” were read as a reference to “a trust governed by a registered education savings plan” and if that definition were read without reference to the words “with the exception of excluded property in relation to the trust”,

  • (b) [Repealed, 2007, c. 29, s. 18]

  • (c) a contract for an annuity issued by a licensed annuities provider where

    • (i) the trust is the only person who, disregarding any subsequent transfer of the contract by the trust, is or may become entitled to any annuity payments under the contract, and

    • (ii) the holder of the contract has a right to surrender the contract at any time for an amount that would, if reasonable sales and administration charges were ignored, approximate the value of funds that could otherwise be applied to fund future periodic payments under the contract,

  • (d) an investment that was acquired by the trust before October 28, 1998, and

  • (e) a prescribed investment; (placement admissible)

  qualifying educational program

  programme de formation admissible

  qualifying educational program means a program at a post-secondary school level of not less than three consecutive weeks duration that requires that each student taking the program spend not less than ten hours per week on courses or work in the program; (programme de formation admissible)

  refund of payments

  remboursement de paiements

  refund of payments at any time under a particular registered education savings plan means

  • (a) a refund at that time of a contribution that had been made at a previous time, if the contribution was made

    • (i) otherwise than by way of a transfer from another registered education savings plan, and

    • (ii) into the particular plan by or on behalf of a subscriber under the particular plan, or

  • (b) a refund at that time of an amount that was paid at a previous time into the particular plan by way of a transfer from another registered education savings plan, where the amount would have been a refund of payments under the other plan if it had been paid at the previous time directly to a subscriber under the other plan; (remboursement de paiements)

  registered education savings plan or RESP

  régime enregistré d’épargne-études

  registered education savings plan or RESP means

  • (a) an education savings plan registered for the purposes of this Act, or

  • (b) a registered education savings plan as it is amended from time to time

  but, except for the purposes of subsections 146.1(7) and 146.1(7.1) and Part X.4, a plan ceases to be a registered education savings plan immediately after the day as of which its registration is revoked under subsection 146.1(13); (régime enregistré d’épargne-études)

  RESP annual limit

  RESP annual limit[Repealed, 2007, c. 29, s. 18]

  specified educational program

  programme de formation déterminé

  specified educational program means a program at a post-secondary school level of not less than three consecutive weeks duration that requires each student taking the program to spend not less than 12 hours per month on courses in the program; (programme de formation déterminé)

  specified plan

  régime déterminé

  specified plan means an education savings plan

  • (a) that does not allow more than one beneficiary under the plan at any one time,

  • (b) under which the beneficiary is an individual in respect of whom paragraphs 118.3(1)(a) to (b) apply for the beneficiary’s taxation year that ends in the 31st year following the year in which the plan was entered into, and

  • (c) that provides that, at all times after the end of the 35th year following the year in which the plan was entered into, no other individual may be designated as a beneficiary under the plan; (régime déterminé)

  subscriber

  souscripteur

  subscriber under an education savings plan at any time means

  • (a) each individual or the public primary caregiver with whom the promoter of the plan enters into the plan,

  • (a.1) another individual or another public primary caregiver who has before that time, under a written agreement, acquired a public primary caregiver’s rights as a subscriber under the plan,

  • (b) an individual who has before that time acquired a subscriber’s rights under the plan pursuant to a decree, order or judgment of a competent tribunal, or under a written agreement, relating to a division of property between the individual and a subscriber under the plan in settlement of rights arising out of, or on the breakdown of, their marriage or common-law partnership, or

  • (c) after the death of an individual described in any of paragraphs (a) to (b), any other person (including the estate of the deceased individual) who acquires the individual’s rights as a subscriber under the plan or who makes contributions into the plan in respect of a beneficiary

  but does not include an individual or a public primary caregiver whose rights as a subscriber under the plan had, before that time, been acquired by an individual or public primary caregiver in the circumstances described in paragraph (a.1) or (b); (souscripteur)

  tax-paid income

  tax-paid income[Repealed, 1998, c. 19, s. 38(1)]

  trust

  fiducie

  trust, except in this definition and the definition education savings plan, means any person who irrevocably holds property under an education savings plan for any of, or any combination of, the following purposes:

  • (a) the payment of educational assistance payments,

  • (b) the payment after 1997 of accumulated income payments,

  • (c) the refund of payments,

  • (c.1) the repayment of amounts (and the payment of amounts related to that repayment) under the Canada Education Savings Act or under a designated provincial program,

  • (d) the payment to, or to a trust in favour of, designated educational institutions in Canada referred to in subparagraph (a)(i) of the definition of that expression in subsection 118.6(1), or

  • (e) the payment to a trust that irrevocably holds property pursuant to a registered education savings plan for any of the purposes set out in paragraphs (a) to (d). (fiducie)

• Marginal note:Conditions for registration

  (2) The Minister shall not accept for registration for the purposes of this Act any education savings plan of a promoter unless, in the Minister’s opinion, the following conditions are complied with:

  • (a) the plan provides that the property of any trust governed by the plan (after the payment of trustee and administration charges) is irrevocably held for any of the purposes described in the definition trust in subsection 146.1(1) by a corporation licensed or otherwise authorized under the laws of Canada or a province to carry on in Canada the business of offering to the public its services as a trustee;

  • (b) at the time of the application by the promoter for registration of the plan, there are not fewer than 150 plans entered into with the promoter each of which complied, at the time it was entered into, with all the other conditions set out in this subsection, as it read at that time;

  • (b.1) application for registration of the plan is made by the promoter in prescribed form containing prescribed information;

  • (c) the promoter and all trusts governed by the plan are resident in Canada;

  • (d) the plan does not allow for any payment before 1998 to a subscriber, other than a refund of payments, unless the subscriber is also the beneficiary under the plan;

  • (d.1) subject to subsection (2.2), if the plan allows accumulated income payments, the plan provides that an accumulated income payment is permitted to be made only if

    • (i) the payment is made to, or on behalf of, a subscriber under the plan who is resident in Canada when the payment is made,

    • (ii) the payment is not made jointly to, or on behalf of, more than one subscriber, and

    • (iii) any of

      • (A) the payment is made after the 9th year that follows the year in which the plan was entered into and each individ­ual (other than a deceased individual) who is or was a beneficiary under the plan has attained 21 years of age before the payment is made and is not, when the payment is made, eligible under the plan to receive an educational assistance payment,

      • (B) the payment is made in the year in which the plan is required to be terminated in accordance with paragraph (i), or

      • (C) each individual who was a beneficiary under the plan is deceased when the payment is made;

  • (e) the plan is substantially similar to the type of plan described in or annexed to a prospectus filed by the promoter with a securities commission in Canada or a body performing a similar function in a province;

  • (f) in the event that a trust governed by the plan is terminated, the property held by the trust is required to be used for any of the purposes described in the definition trust in subsection 146.1(1);

  • (g) the plan does not allow for the payment of educational assistance payments before 1997 to an individual unless the individual is, at the time the payment is made, a student in full-time attendance at a post-secondary educational institution and enrolled in a qualifying educational program at the institution;

  • (g.1) the plan does not allow for the payment of an educational assistance payment to or for an individual at any time after 1996 unless

    • (i) either

      • (A) the individual is, at that time, enrolled as a student in a qualifying educational program at a post-secondary educational institution, or

      • (B) the individual has, before that time, attained the age of 16 years and is, at that time, enrolled as a student in a specified educational program at a post-secondary educational institution, and

    • (ii) either

      • (A) the individual satisfies, at that time, the condition set out in clause (i)(A), and

        • (I) has satisfied that condition throughout at least 13 consecutive weeks in the 12-month period that ends at that time, or

        • (II) the total of the payment and all other educational assistance payments made under a registered education savings plan of the promoter to or for the individual in the 12-month period that ends at that time does not exceed $5,000 or any greater amount that the Minister designated for the purpose of the Canada Education Savings Act approves in writing with respect to the individual, or

      • (B) the individual satisfies, at that time, the condition set out in clause (i)(B) and the total of the payment and all other educational assistance payments made under a registered education savings plan of the promoter to or for the individual in the 13-week period that ends at that time does not exceed $2,500 or any greater amount that the Minister designated for the purpose of the Canada Education Savings Act approves in writing with respect to the individual;

  • (g.2) the plan does not allow for any contribution into the plan, other than a contribution made by or on behalf of a subscriber under the plan in respect of a beneficiary under the plan or a contribution made by way of transfer from another registered education savings plan;

  • (g.3) the plan provides that an individual is permitted to be designated as a beneficiary under the plan, and that a contribution to the plan in respect of an individual who is a beneficiary under the plan is permitted to be made, only if

    • (i) in the case of a designation, the individual’s Social Insurance Number is provided to the promoter before the designation is made and either

      • (A) the individual is resident in Canada when the designation is made, or

      • (B) the designation is made in conjunction with a transfer of property into the plan from another registered education savings plan under which the individual was a beneficiary immediately before the transfer, and

    • (ii) in the case of a contribution, either

      • (A) the individual’s Social Insurance Number is provided to the promoter before the contribution is made and the individual is resident in Canada when the contribution is made, or

      • (B) the contribution is made by way of transfer from another registered education savings plan under which the individual was a beneficiary immediately before the transfer;

  • (h) the plan provides that no contribution (other than a contribution made by way of a transfer from another registered education savings plan) may be made into the plan after

    • (i) in the case of a specified plan, the 35th year following the year in which the plan was entered into, and

    • (ii) in any other case, the 31st year following the year in which the plan was entered into;

  • (i) the plan provides that it must be terminated on or before the last day of

    • (i) in the case of a specified plan, the 40th year following the year in which the plan was entered into, and

    • (ii) in any other case, the 35th year following the year in which the plan was entered into;

  • (i.1) if the plan allows accumulated income payments in accordance with paragraph 146.1(2)(d.1), the plan provides that it must be terminated before March of the year following the year in which the first such payment is made out of the plan;

  • (i.2) the plan does not allow for the receipt of property by way of direct transfer from another registered education savings plan after the other plan has made any accumulated income payment;

  • (j) if the plan allows more than one beneficiary under the plan at any one time, the plan provides

    • (i) that each of the beneficiaries under the plan is required to be connected to each living subscriber under the plan, or to have been connected to a deceased original subscriber under the plan, by blood relationship or adoption,

    • (ii) that a contribution into the plan in respect of a beneficiary is permitted to be made only if

      • (A) the beneficiary had not attained 31 years of age before the time of the contribution, or

      • (B) the contribution is made by way of transfer from another registered education savings plan that allows more than one beneficiary at any one time, and

    • (iii) that an individual is permitted to become a beneficiary under the plan at any particular time only if

      • (A) the individual had not attained 21 years of age before the particular time, or

      • (B) the individual was, immediately before the particular time, a beneficiary under another registered education savings plan that allows more than one beneficiary at any one time;

  • (k) [Repealed, 2007, c. 29, s. 18]

  • (l) the plan provides that the promoter shall, within 90 days after an individual becomes a beneficiary under the plan, notify the individ­ual (or, where the individual is under 19 years of age at that time and either ordinarily resides with a parent of the individual or is maintained by a public primary caregiver of the individual, that parent or public primary caregiver) in writing of the existence of the plan and the name and address of the subscriber in respect of the plan;

  • (m) the Minister has no reasonable basis to believe that the promoter will not take all reasonable measures to ensure that the plan will continue to comply with the conditions set out in paragraphs 146.1(2)(a), 146.1(2)(c) to 146.1(2)(d.1) and 146.1(2)(f) to 146.1(2)(l) for its registration for the purposes of this Act; and

  • (n) the Minister has no reasonable basis to believe that the plan will become revocable.

• Marginal note:RESP is revocable

  (2.1) For the purposes of paragraphs (2)(n) and (12.1)(d), a registered education savings plan is revocable at any time after October 27, 1998 at which

  • (a) a trust governed by the plan acquires property that is not a qualified investment for the trust;

  • (b) property held by a trust governed by the plan ceases to be a qualified investment for the trust and the property is not disposed of by the trust within 60 days after that time;

  • (c) a trust governed by the plan begins carrying on a business; or

  • (d) a trustee that holds property in connection with the plan borrows money for the purposes of the plan, except where

    • (i) the money is borrowed for a term not exceeding 90 days,

    • (ii) the money is not borrowed as part of a series of loans or other transactions and repayments, and

    • (iii) none of the property of the trust is used as security for the borrowed money.

• Marginal note:Waiver of conditions for accumulated income payments

  (2.2) The Minister may, on written application of the promoter of a registered education savings plan, waive the application of the conditions in clause (2)(d.1)(iii)(A) in respect of the plan where a beneficiary under the plan suffers from a severe and prolonged mental impairment that prevents, or can reasonably be expected to prevent, the beneficiary from enrolling in a qualifying educational program at a post-secondary educational institution.

• Marginal note:Extension for making educational assistance payments

  (2.21) Notwithstanding paragraph (2)(g.1), an education savings plan may allow for the payment of an educational assistance payment to or for an individual at any time in the six-month period immediately following the particular time at which the individual ceases to be enrolled as a student in a qualifying educational program or a specified educational program, as the case may be, if the payment would have complied with the requirements of paragraph (2)(g.1) had the payment been made immediately before the particular time.

• Marginal note:Timing of payment

  (2.22) An educational assistance payment that is made at any time in accordance with subsection (2.21) but not in accordance with paragraph (2)(g.1) is deemed, for the purposes of applying that paragraph at and after that time, to have been made immediately before the particular time referred to in subsection (2.21).

• Marginal note:Social Insurance Number not required

  (2.3) Notwithstanding paragraph (2)(g.3), an education savings plan may provide that an individual’s Social Insurance Number need not be provided in respect of

  • (a) a contribution to the plan, if the plan was entered into before 1999; and

  • (b) a designation of a non-resident individual as a beneficiary under the plan, if the individual was not assigned a Social Insurance Number before the designation is made.

• Marginal note:Deemed registration

  (3) Where in any year an education savings plan cannot be accepted for registration solely because the condition set out in paragraph 146.1(2)(b) has not been complied with, if the plan is subsequently registered, it shall be deemed to have been registered on the first day of January of

  • (a) the year in which all of the conditions set out in subsection 146.1(2) (except in paragraph 146.1(2)(b)) were complied with, or

  • (b) the year preceding the year in which the plan was subsequently registered,

  whichever is the later.

• Marginal note:Registration of plans without prospectus

  (4) Notwithstanding paragraph 146.1(2)(e), where a promoter has not filed a prospectus in respect of an education savings plan referred to in that paragraph, the Minister may register the plan if the promoter is not otherwise required by the laws of Canada or a province to file such a prospectus with a securities commission in Canada or a body performing a similar function in a province and the plan complies with the other conditions set out in subsection 146.1(2).

• Marginal note:Obligation to file amendment

  (4.1) When a registered education savings plan is amended, the promoter shall file the text of the amendment with the Minister not later than 60 days after the day on which the plan is amended.

• Marginal note:Trust not taxable

  (5) No tax is payable under this Part by a trust on the taxable income of the trust for a taxation year if, throughout the period in the year during which the trust was in existence, the trust was governed by a registered education savings plan.

• Marginal note:Subscriber not taxable

  (6) No tax is payable by a subscriber on the income of a trust for a taxation year after 1971 throughout which the trust was governed by a registered education savings plan.

• Marginal note:Transfers between plans

  (6.1) Where property irrevocably held by a trust governed by a registered education savings plan (in this subsection referred to as the “transferor plan”) is transferred to a trust governed by another registered education savings plan (in this subsection referred to as the “transferee plan”),

  • (a) [Repealed, 1998, c. 19, s. 38(13)]

  • (b) for the purposes of this paragraph, the definition specified plan in subsection (1) and paragraphs (2)(d.1), (h) and (i), the transferee plan is deemed to have been entered into on the day that is the earlier of

    • (i) the day on which the transferee plan was entered into, and

    • (ii) the day on which the transferor plan was entered into; and

  • (c) notwithstanding subsections 146.1(7) and 146.1(7.1), no amount shall be included in computing the income of any person because of the transfer.

• Marginal note:Educational assistance payments

  (7) There shall be included in computing an individual’s income for a taxation year the total of all educational assistance payments paid out of registered education savings plans to or for the individual in the year.

• Marginal note:Other income inclusions

  (7.1) There shall be included in computing a taxpayer’s income for a taxation year

  • (a) each accumulated income payment received in the year by the taxpayer under a registered education savings plan; and

  • (b) each amount received in the year by the taxpayer in full or partial satisfaction of a subscriber’s interest under a registered education savings plan (other than any excluded amount in respect of the plan).

• Marginal note:Excluded amount

  (7.2) For the purpose of paragraph 146.1(7.1)(b), an excluded amount in respect of a registered education savings plan is

  • (a) any amount received under the plan;

  • (b) any amount received in satisfaction of a right to a refund of payments under the plan; or

  • (c) any amount received by a taxpayer under a decree, order or judgment of a competent tribunal, or under a written agreement, relating to a division of property between the taxpayer and the taxpayer’s spouse or common- law partner or former spouse or common-law partner in settlement of rights arising out of, or on the breakdown of, their marriage or common-law partnership.

• (8) to (10) [Repealed, 1998, c. 19, s. 38(15)]

• Marginal note:Trust deemed to be inter vivos trust

  (11) For any taxation year during which an education savings plan is not registered, a trust governed by the plan shall be deemed, for the purposes of section 122, to be a trust referred to in subsection 122(1) established after June 17, 1971.

• Marginal note:Deemed date of registration

  (12) Subject to subsection 146.1(3), an education savings plan that is registered

  • (a) before 1976 shall be deemed to have been registered since the later of

    • (i) January 1, 1972, and

    • (ii) the first day of January of the year in which the plan was created; and

  • (b) after 1975 shall be deemed to have been registered on the first day of January in the year of registration.

• Marginal note:Notice of intent to revoke registration

  (12.1) When a particular day is

  • (a) a day on which a registered education savings plan ceases to comply with the conditions of subsection 146.1(2) for the plan’s registration,

  • (b) a day on which a registered education savings plan ceases to comply with any provision of the plan,

  • (c) the last day of a month in respect of which tax is payable under Part X.4 by an individual because of contributions made, or deemed for the purpose of Part X.4 to have been made, by or on behalf of the individual into a registered education savings plan,

  • (d) a day on which a registered education savings plan is revocable, or

  • (e) a day on which a person fails to comply with a condition or an obligation, imposed under the Canada Education Savings Act or under a program administered pursuant to an agreement entered into under section 12 of that Act, that applies with respect to a registered education savings plan,

  the Minister may send written notice (referred to in this subsection and subsection 146.1(12.2) as a “notice of intent”) to the promoter of the plan that the Minister proposes to revoke the registration of the plan as of the day specified in the notice of intent, which day shall not be earlier than the particular day.

• Marginal note:Notice of revocation

  (12.2) When the Minister sends a notice of intent to revoke the registration of a registered education savings plan to the promoter of the plan, the Minister may, after 30 days after the receipt by the promoter of the notice, send written notice (referred to in this subsection and subsection 146.1(13) as a “notice of revocation”) to the promoter that the registration of the plan is revoked as of the day specified in the notice of revocation, which day shall not be earlier than the day specified in the notice of intent.

• Marginal note:Revocation of registration

  (13) When the Minister sends a notice of revocation of the registration of a registered education savings plan under subsection 146.1(12.2) to the promoter of the plan, the registration of the plan is revoked as of the day specified in the notice of revocation, unless the Federal Court of Appeal or a judge thereof, on application made at any time before the determination of an appeal under subsection 172(3), orders otherwise.

• Marginal note:RESP information

  (13.1) Every trustee under a registered education savings plan shall, in prescribed form and manner, file with the Minister information returns in respect of the plan.

• Marginal note:Former Act

  (14) A reference

  • (a) in this section, in paragraph 60(x) or in subparagraph 241(4)(d)(vii.1) to the Canada Education Savings Act, to an amount paid, to the payment of an amount or to the repayment of an amount, or to a condition or an obligation imposed, under that Act includes a reference to Part III.1 of the Department of Human Resources Development Act, or to an amount paid, to the payment of an amount or to the repayment of an amount, or to a condition or an obligation imposed, as the case may be, under that Part as it read at the time the reference is relevant; and

  • (b) in clause (2)(g.1)(ii)(B) to an amount that the Minister designated for the purpose of the Canada Education Savings Act approves in writing with respect to an individual includes a reference to an amount that the Minister of Human Resources Development or the Minister of State to be styled Minister of Human Resources and Skills Development has approved in writing, before the day on which a Minister is designated for the purposes of that Act, with respect to the individual.

• Marginal note:Regulations

  (15) The Governor in Council may make regulations requiring promoters of education savings plans to file information returns in respect of the plans.