Question to CRA on alter ego trusts and whether transfers are a donation

August 27, 2019 | By: .(JavaScript must be enabled to view this email address) Mark Blumberg
Topics: News, What's New from the Charities Directorate of CRA, Canadian Charity Law, Planned Giving and Canadian Charities

STEP Canada had a CRA Roundtable on June 6-7, 2019 and they discussed a number of topics.   One issue of interest to charities and philanthropists is Question 2 dealing with alter ego trusts and donations.   Essentially CRA takes the position that if an alter ego trust is required to distribute its funds to a charity then such funds are not a charitable donation and not entitled to an official donation receipt.   If on the other hand the trustees have discretion and there is donative intent then it could be a charitable contribution. 

Here is the text from STEP:

Unless otherwise stated, every reference herein to a part section, subsection, paragraph or a subparagraph is a reference to the relevant provision of the Income Tax Act (the "Act"), as amended to the date hereof. ...

Question 2: Alter ego trust and donations

An alter ego trust owns a portfolio of publicly traded securities which have appreciated in value. The Settlor (Contributor) to the alter ego trust dies and the alter ego trust has a deemed year-end at the end of the day on which the individual dies pursuant to subsection 104(13.4). The trust realizes a capital gain at that time pursuant to subsection 104(4).

a) Assume that the residual beneficiary, after the death of the Contributor, is a registered charity, and a distribution is made to that registered charity. In these circumstances, can the alter ego trust claim the amount as a charitable gift that is eligible for the donation tax credit?

b) Assume that the residual beneficiaries are a class of registered charities as determined by the trustees, and that the trustees may make payments over a period of time, say the next 3 years, to those various registered charities. At the end of 3 years, the capital remaining is to be distributed to registered charities. In these circumstances, can a charitable donation be claimed by the alter ego trust?

c) If the donation by the alter ego trust is made by donating the publicly traded securities, is the taxable capital gain nil as would be the case for an individual?

CRA Response:

a) When the settlor of an alter ego trust dies, the trust has a deemed year-end at the end of the day on which the death occurs pursuant to subsection 104(13.4). In the situation described above, the trust realizes a capital gain at that time pursuant to subsection 104(4). Clause (c)(ii)(C) of the definition of "total charitable gifts" in subsection 118.1(1) was added to the Income Tax Act, applicable for taxation years after 2015, to allow for the inclusion, in the trust's total charitable gifts, of the eligible amount of a gift made by the trust in a shortened taxation year as a result of a deemed year-end triggered by paragraph 104(13.4)(a). As such, based on the situation described above, it is our understanding that the trust would like to claim a donation tax credit to offset the capital gain that occurs in the trust's taxation year in which the Contributor dies.

Under the common law, "a gift is a voluntary transfer of property owned by a donor to a donee, in return for which no benefit or consideration flows to the donor" (TheQueenv Friedberg, [1992] 1 CTC 1, 92 DTC 6031 (FCA)). Generally, for purposes of sections 110.1 and 118.1, a gift under common law is made if a taxpayer has donative intent, and all three of the following conditions are satisfied:
· there must be a voluntary transfer of property to a qualified donee;
· the property transferred must be owned by the donor; and
· no benefit or consideration must flow to the donor.

In a situation where an alter ego trust makes a payment to a registered charity, it is a mixed question of fact and law whether the payment is a charitable gift by the trust that is eligible for a donation tax credit pursuant to subsection 118.1 (3), or a distribution of income or capital to a beneficiary of the trust. The determination depends upon the specific wording of the trust agreement and the intentions of the trustee in making the payment to the charity.

Where the facts lead to a determination that the trustee has no discretion as to whether the payment is made to the charity, the CRA would not consider the payment to qualify as a gift. Consequently, the payment by the trust would not be eligible for the donation tax credit.

On the other hand, the CRA has accepted that, where the facts lead to a determination that the trustee is clearly given the discretion to decide if a payment is to be made to a charity or to have the funds used in some other manner, the payment is considered voluntary. Accordingly, the payment by the trust to the charity would be considered a charitable gift that is eligible for the donation tax credit provided that the other conditions of the subsection are satisfied.

b) The comments provided in response (a) above are also applicable to this example. Where a trust makes a payment to a charity, it is a mixed question of fact and law whether the payment is a charitable gift by the trust that is eligible for a donation tax credit pursuant to subsection 118.1 (3), or a distribution of capital or income to a beneficiary of the trust.

In the situation described above, the trustee "may" make payments over the next three years. This suggests that the trustee may have discretion and that the payments may be voluntary. Accordingly, the payments by the trust to the charities over the three years may be eligible for the donation tax credit provided that the other conditions of the subsection are satisfied.
Once the three years has passed, the capital remaining is to be distributed to charities. This wording suggests that the trustee may not have discretion with regard to this payment and as such, the payment by the trust may not be eligible for the donation tax credit.

c) In part, subparagraph 38(a.1)(i) provides that a taxpayer's taxable capital gain for a taxation year from the disposition of a property is equal to zero if the disposition is the making of a gift to a qualified donee of certain publicly-traded securities as described therein.

As noted in responses (a) and (b) above, whether a payment to a charity is a gift is a question of fact. However, in this example, if the facts lead to a determination that the disposition of the property from the alter ego trust is a gift to a qualified donee of securities described in subparagraph 38(a.1)(i), the trust's taxable capital gain that results from the disposition of the gift of such securities would be equal to zero.

Do you require legal advice with respect to Canadian or Ontario non-profits or charities?

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Charity Lawyer Mark Blumberg

Mark Blumberg is a partner at the law firm of Blumberg Segal LLP in Toronto and works almost exclusively in the areas of non-profit and charity law.

mark@blumbergs.ca
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