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08/05/2014
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N R id t T tNon-Resident TrustsThe Canadian Experience
Michael Cadesky, TEP, and Grace Chow, TEP(Cadesky and Associates, LLP)
Chair: Lorraine Wheeler (First Names Group)
Sponsored by:
Non‐Resident TrustsThe Canadian ExperienceThe Canadian Experience
MICHAEL CADESKY, TEPGRACE CHOW, TEP
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CADESKY AND ASSOCIATES LLPTORONTO, CANADA
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Chapter 1Good Old Days‐ 1972 – 1996Non‐resident trust not taxed unless:1. Canadian resident contribution (or resident in (
past 18 months)2. Canadian resident beneficiary3. Contributor and beneficiary related; and4. Canadian resident contributor was resident for
60 monthsN ti f ki dNo reporting of any kindTax‐free capital distributions Income becomes capital at December 31
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Schematic
Trustees non‐resident
TRUST
Contributor
Beneficiaries
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1. No Canadian Resident Contributor
TRUSTContributor(non‐resident)
Canadian Resident B fi i i
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Beneficiaries
Trust not taxed Capital distribution tax‐free to Canadian resident beneficiaries
TRUST
1.(a) Freeze Structure Non‐Resident Contributor
Non‐resident Contributor
Canadian Resident Beneficiaries
Canadian Resident
commonPreferred shares
$100
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CORPORATION
Nominal amount from non‐resident contributor for growth shares.
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1.(b) Contributor Non‐Resident 18 months
TRUSTNon‐resident Contributor(after 18 months)
Canadian Resident beneficiaries
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Long term Canadian resident leaves, after 18 months sets up trust for Canadian resident family members.
2. No Canadian Resident Beneficiaries
TRUSTCanadian Resident Contributor
Beneficiariesll id t
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all non‐resident
Trust tax‐free
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2. (a) Power to Add/Purpose Trust
TRUSTCanadian Resident Contributor
Beneficiaries all non‐resident or purpose trust (no beneficiaries) but
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beneficiaries) but Canadian residents can be added
Trust tax‐free until Canadian residents are in fact added. By then, income realized and now capital.
TrustA
3. Contributor and Beneficiaries Unrelated
Mr. A Beneficiaries Family of B
TrustBM B
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BMr. B
Beneficiaries Family of A
Both trusts are tax‐free
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IMMIGRANT
4. Contributor Not Resident 60 Months
IMMIGRANT TRUSTCanadian Resident
(newly arrived)
Canadian Resident Beneficiaries
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Trust exempt for 60 months
Chapter 2The Gathering Storm – 1996 ‐ 1999
1996 – foreign reportingCanadian resident contributor T1141Canadian resident contributor T1141Canadian resident beneficiaryon receiving distribution T1142
Trust if deemed resident T3T1134T1135T1135
Power to add beneficiaries deems persons related to contributor to be added (1998 onwards). Shuts down purpose trust plan.
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CRA Discovers Dual Resident Spousal Trust Plan
Canadian trusteeHusband(1) (2)
CorporationTrust
Gain on shares
WifeHusband
Set up Canadian spousal trust
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CRA Discovers Dual Resident Spousal Trust Plan
Canadian trustee Barbados trustee
(3) (4)
Corporation Corporation
Wife Wife
Husband
note
Husband
note
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Tax‐free sale to spousal trust, for note back to husband
Trust becomes non‐resident but is now deemed resident so escapes departure tax
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GAIN
Barbados trustee
Husband
(5)
GAIN
Wife
Husband
note
Gain from sale claimed as exempt by Canada‐Barbados Treaty. Note paid to husband.
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ResultNo capital gains tax regardless of amount. Just needs a spouse (or common‐law partner). Note wife gets nothing.
Chapter 3The Storm Breaks – 1999 – 2013• Draft legislation in 1999 takes away non‐resident beneficiary exception
• Now Canadian resident contributor alone causes trust to be deemed resident
• 18 months rule extended to 60 months
• Rules delayed repeatedly
2000 2001 2002 2003 2007
• Passed June 26, 2013 retroactive to 2007
• 1 year to timely file (ie, June 26, 2014)
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• Denial of Treaty override in 2010
• Detrimental case law, taxpayer loses in Garron and Antle cases, all the way to Supreme Court, y p
• Harsh enforcement by CRA
• Antle is dual resident spousal plan
• Mind and Management concept for residence of a trust emerges
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1. No Canadian Resident Contributor
TRUSTContributor(non‐resident)
Canadian Resident B fi i i
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Beneficiaries
Trust not taxed Capital distribution tax‐free to Canadian resident beneficiaries
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• Still exempt if no contribution from Canadian resident contributor
B t l t d t ib ti• But many rules now to deem a contribution to be made
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TRUST
1.(a) Freeze Structure Non‐Resident Contributor
Non‐resident Contributor
Canadian Resident Beneficiaries
Canadian Resident
commonPreferred shares
$100
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CORPORATION
Nominal amount from non‐resident contributor for growth shares.
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• Estate freeze structure now deemed a contribution
T bl f 2007• Taxable from 2007
• Step‐up December 31, 2006
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1.(b) Contributor Non‐Resident 18 months
TRUSTNon‐resident Contributor(after 18 months)
Canadian Resident beneficiaries
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Long term Canadian resident leaves, after 18 months sets up trust for Canadian resident family members.
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• 18 months extended to 60 months
• Some exceptions under transition rules
• Could become taxable from 2007
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2. No Canadian Resident Beneficiaries
TRUSTCanadian Resident Contributor
Beneficiariesll id t
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all non‐resident
Trust tax‐free
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• Taxable from 2007
• Step‐up December 2006
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2. (a) Power to Add/Purpose Trust
TRUSTCanadian Resident Contributor
Beneficiaries all non‐resident or purpose trust (no beneficiaries) but
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beneficiaries) but Canadian residents can be added
Trust tax‐free until Canadian residents are in fact added. By then, income realized and now capital.
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• Taxable (possibly) from 1998 but for sure taxable from 2007
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TrustA
3. Contributor and Beneficiaries Unrelated
Mr. A Beneficiaries Family of B
TrustBM B
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BMr. B
Beneficiaries Family of A
Both trusts are tax‐free
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• Taxable from 2007
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IMMIGRANT
4. Contributor Not Resident 60 Months
IMMIGRANT TRUSTCanadian Resident
(newly arrived)
Canadian Resident Beneficiaries
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Trust exempt for 60 months
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• Exemption allowed up to 2013
• New rules 2014 (see below)
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Chapter 4The Aftermath ‐ 2014
• Immigrant trust exemption removed by February 11, 2004 Federal Budget
• Effective 2015 unless contribution made February 11, 2014 or after. If so, applies 2014
• Trust deemed resident throughout the year (ie. January 1 on)
• New resident individuals with trusts will find trusts deemed resident January 1 of arrival year
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The Clean‐Up ‐ 2014
Old New
No Canadian resident Exempt Exempt
Chapter 5
contributor 18 month rule but 60 month rule(some exceptions) From 2007
Mixed contribution(Canadian resident and
Taxable even if nominal
Resident and non‐resident portions
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non‐resident) contribution by Canadian resident
from 2007
Old New
Canadian resident contributor, no Canadian
Taxable from 1998
Taxable from 1998
resident beneficiaries but power to add
Canadian residentcontributor, cannot add Canadian resident beneficiaries and more
Exempt Taxable from 2007
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named
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Old New
Canadian residentcontributor (but resident less than 60 months)
Exempt for 60 months as immigrant trust
Taxable from 2015 (2014 ifcontribution on or after February 11, 2014)
Estate freeze type structure with nominal contribution by non‐resident
Exempt (possibly)
Taxable from 2007
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Treaty override Possible treaty claim
March 5, 2010 rule to disallow treaty override, possible step‐up
What must be Filed
• Trust tax returns (due June 26, 2014 for years before 2013, for 2013 due March 31, 2014)before 0 3, for 0 3 due March 3 , 0 4)
• Foreign reporting forms (T1134, T1135 by the trust), T1141 by contributor if Canadian resident.
• Tax payment with interest• Penalty if late filed and tax owing – 17% of the
ttax• Penalty for not filing trust tax return and foreign
reporting forms (maximum $2,500 per form per year unless wilful)
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Decision Tree
Is trust deemed resident
No Yes
Can you timely file now
(STOP)
YesNoEstimate the tax and interest and do so
Voluntary disclosure to waive penalties
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Yes
and some interest
Continue with the trust
No
Wind upContinue as trustee?
Wind‐up of Trust
• Wind‐up of the trust needs tax advice first
• Distribution from underlying company is a dividend (fully taxed)
• Possible to have tax‐free dissolution and distribution but needs review (case by case)
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Continuing with a Taxable Trust
• Non‐resident trust deemed resident could have tax advantages but much more limited
• Lower tax rate (43% v 50%)• Asset protection• Distribution to non‐residents• But now cannot ignore Canadian tax rulesBut now cannot ignore Canadian tax rules
and tax filings• Especially important NOW for immigrant
trust structures39
Immigrant Trust
• Do not make contributions on or after Febr ar 11 2014February 11, 2014
• Wind up or reorganize in 2014 while tax exempt (much easier to do than when taxable)
• Canadian resident contributor leaves Canada before 2015before 2015
• Distribute to non‐residents• Special structures for active business, with
step‐up in tax cost of shares to FMV
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Chapter 6Reminiscing About the Good Old Days• Natural evolution of tax system or caused by widespread abuse?
• Fear of loss of tax revenue or political move to tax Fear of loss of tax revenue or political move to tax the rich?
• Part of a worldwide trend to tighten international tax rules?
• Success of the offshore trust industry attracted attention?O i fit ll t id l (• One size fits all tax avoidance plans (purpose trust and dual resident spousal) create a dynamic that no tax administration can ignore.
• High publicity on offshore tax evasion
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What’s Left
• Inbound trusts (no Canadian contributor)
• Outbound trusts from deceased taxpayer if no Outbou d t usts o deceased ta paye oCanadian beneficiaries
• Active business structures (no income arises to be taxed)
• Certain unique one‐off situations (tax reduced but not eliminated)
A small fraction of its former self!
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