Translation disclaimer
This translation was prepared by Tax Interpretations Inc. The CRA did not issue this document in the language in which it now appears, and is not responsible for any errors in its translation that might impact a reader’s understanding of it or the position(s) taken therein. See also the general Disclaimer below.
Principal Issues: 1.Whether subsection 148(7) applies where a policyholder's interest in a life insurance policy on the life of a child is transferred to a private foundation on the death of the policyholder either by virtue of his will or by virtue of a designation as subrogated owner /successor owner?
2. In either situation, whether a charitable gift of the interest in the life insurance policy is included in the "total charitable gifts" of the deceased individual for the year of death?
Position: 1. Subsection 148(7) is applicable.
2. Depends on whether the transfer is valid and a gift under the applicable private law. Assuming it is a valid transfer and a gift, where the gift is made in the will, the eligible amount of the gift could possibly be included in the total charitable gifts for the year of death pursuant to clause (c)(i)(C) of the definition of "total charitable gifts" in subsection 118.1(1). However, where the private foundation is designated as a subrogated owner/successor owner, subsection 118.1(5) would not apply and the eligible amount of the gift cannot be included pursuant to clause (c)(i)(C) of the definition of "total charitable gifts" in subsection 118.1(1) in the year of death.
Reasons: 1. In both situations, there is a disposition on death by the deceased of an interest in the life insurance policy by way of gift, by operation of law or in any manner to a person with whom the policyholder does not deal at arm's length.
2. Question of law whether such a transaction is possible and whether there is a gift. In a gift by will, subsection 118.1(5) applies and subsection 118.1(5.1) could apply. In the case a subrogated owner/successor owner, subsection 118.1(5) cannot apply since the interest in the policy does not pass through the estate.
Financial Strategies and Financial Instruments Roundtable, 6 October 2017
2017 APFF Conference
Question 9
Donation of a life insurance policy to a contingent policyholder
More than 20 years ago, Mr. Donor insured his daughter to protect her insurability and with the intention of eventually transferring his interest in the insurance policy to her. The life insurance policy was an exempt policy as defined in section 306 of the Income Tax Regulations. His daughter having ceased to be competent, such a transfer was no longer appropriate. In addition, Mr. Donor established a Private Foundation several years ago, which qualified as a registered charity. Mr. Donor's will provided for a gift of the interest in the insurance policy on his daughter's life to the Private Foundation. At the time of Mr. Donor's death, the cash surrender value ("CSV") of the policy was $200,000, the adjusted cost basis ("ACB") was $50,000 and the fair market value ("FMV") was $500,000. The graduated rate estate ("GRE") transferred ownership to the Private Foundation within 3 years of death.
Questions to the CRA
(a) Can you confirm that in the Donor’s terminal tax return, the disposition of the interest in the policy will generate a gain for the policy of $150,000 (the CSV excess over ACB) under subsection 148(7)?
(b) Can you also confirm that the GRE may also choose to claim a charitable donation of $500,000 in Mr. Donor’s terminal return (assuming the net income was sufficient)?
(c) In order to facilitate the transfer and avoid delays, rather than providing for the gift of the interest in the policy in his will, the Private Foundation is instead designated as the contingent policyholder. Thus, upon the death of Mr. Donor, the interest in the policy is automatically transferred to the Private Foundation. Can you confirm that the tax consequences are the same as those described in your answers to Questions (a) and (b)?
CRA response to Question 9(b)
The provisions of subsection 148(7) apply where an interest in a life insurance policy is disposed of to any person with whom the policyholder was not dealing at arm’s length by way inter alia of gift or operation of law. Where subsection 148(7) applies, paragraph 148(7)(a) provides that the policyholder is deemed to become entitled to receive, at the disposition time, proceeds of the disposition equal to the greatest of the following amounts:
(i) the value of the interest at the disposition time;
(ii) the FMV of the consideration, if any, given for the interest; and
(iii) the ACB (footnote 1) to the policyholder of the interest immediately before the disposition time.
The term "value" is defined in subsection 148(9). Where the interest in the policy includes an interest in the "cash surrender value" of the policy as defined in subsection 148(9), the value is the amount respecting the policy that the holder would be entitled to receive if the policy were surrendered at that time.
In the situation described, the CRA is of the view that at the time of Mr. Donor's death there would be a disposition of his interest in the life insurance policy on his daughter’s life and that subsection 148(7) would apply to that disposition. To the extent that the $200,000 CSV represents the "value" of the interest within the meaning of subsection 148(9), Mr. Donor will be deemed to have become entitled to receive proceeds of disposition equal to $200,000 (the greatest of (i) the value of the interest to Mr. Donor ($200,000), (ii) the FMV of the consideration given for the interest ($0) and (iii) the ACB of the interest to Mr. Donor ($50,000).) Pursuant to subsection 148(1) and paragraph 56(1)(j), a gain of $150,000 ($200,000 less the $50,000 ACB) in respect of the disposition of Mr. Donor's interest in the policy should be included in computing his income for the taxation year of his death in Mr. Donor’s final return.
CRA response to Question 9(b)
From the question, it appears that Mr. Donor wishes to make a donation of his interest in the life insurance policy on the life of his non-competent daughter to a qualified donee, being the Private Foundation. In order for the CRA to make a final determination in this regard, it should first be demonstrated to the CRA that such a transfer in fact is possible under the relevant legislation (possibly the Civil Code of Quebec, the Quebec Act respecting insurance and the Regulation under the Act respecting insurance). In addition, it would be necessary for the transfer of the policy to be a gift under the provisions of the relevant applicable legislation. These are matters of private law on which the CRA does not provide interpretations. However, we are prepared to provide the following general comments on the assumption that the described transactions are legally valid and that the described transfer would constitute a gift under the applicable private law.
Subsection 118.1(3) accords a tax credit to individuals for gifts, calculated on the basis of the "total gifts" as defined in subsection 118.1(1). The total of an individual's gifts for a taxation year includes, inter alia, subject to certain limits, the "total charitable gifts" as defined under subsection 118.1(1). The total charitable gifts are based on the "eligible amount … of a gift". Subsection 248(31) provides that the eligible amount of a gift is the amount by which the FMV of the property that is the subject of the gift exceeds the “amount of the advantage,” if any, in respect of the gift. Subsection 248(32) provides for the determination of the amount of the advantage. The determination of the FMV of a property and of the amount of the advantage is a question of fact which can be determined only after considering all relevant facts.
Where the individual is not a trust, paragraph (c) of the definition of "total charitable gifts" in subsection 118.1(1) provides that the total charitable gifts of the individual for a particular taxation year includes, subject to the other conditions set out in the definition, the eligible amount of a gift that is made:
(a) by the individual, or the individual’s spouse or common-law partner, in the particular year or any of the five preceding taxation years (clause (c)(i)(A));
(b) by the individual in the year in which the individual dies if the particular year is the taxation year that precedes the taxation year in which the individual dies (clause (c)(i)(B)); or
(c) in respect of which the following conditions are met (clause (c)(i)(C)):
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the gift is made by the individual's estate;
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subsection 118.1(5.1) applies to the gift; and
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the particular year is the taxation year of the individual's death or the preceding taxation year.
With respect to the first condition in clause (c)(i)(C), under subsection 118.1(5), certain gifts are deemed to have been made by the estate and not by any other person. Specifically, where subsection 118.1(5) applies to a gift, the gift is generally deemed to have been made by the individual's estate at the time the property to which the gift relates is transferred to the qualified donee and is deemed not to have been made by any other taxpayer and not at any other time.
Subsection 118.1(4.1) provides that subsection 118.1(5) applies to a gift made by the individual by will, to a gift made by the estate and to a gift that is deemed by subsection 118.1(5.2) to have been made in respect of the individual's death. Subsection 118.1(5.2) does not apply to the transfer of an interest of a holder in a life insurance policy under which the life of a third party is insured.
The second condition of clause (c)(i)(C) requires that subsection 118.1(5.1) applies to the gift. Subsection 118.1(5.1) applies to a gift that is made no more than 60 months after the individual’s death and that is made by a GRE, or an estate that would be a GRE were it not for paragraph (a) of the GRE definition in subsection 248(1), if one of the following applies:
- the gift is an eligible transfer to which subsection 118.1(5.2) applies; or
- the subject of the gift is property that was acquired by the estate on and as a consequence of the death (or is property that was substituted for that property.)
In the situation where Mr. Donor's will provides for the gift of the interest in the life insurance policy on the life of his non-competent daughter to the Private Foundation, subsection 118.1(5) would apply to the gift of the interest in the policy. Therefore, in order for the eligible amount of the gift to be included in Mr. Donor's total charitable gifts for the taxation year of his death, the conditions in clause (c)(i)(C) of definition of "total charitable gifts" under subsection 118.1(1) must be satisfied.
If, as you stated, the transfer of ownership of the interest to the Private Foundation was made within three years of the death, subsection 118.1(5.1) would apply because the property that was the subject of the gift (the interest in the policy) was acquired by the estate on and as a consequence of the death. In such circumstances, the eligible amount of the gift could be included in the total charitable gifts for the taxation year of death under clause (c)(i)(C) of the definition of "total charitable gifts" in subsection 118.1(1). Consequently, the tax credit for charitable gifts could be claimed in Mr. Donor's final return.
CRA response to Question 9(c)
With respect to Mr. Donor's gain on the policy realized in this situation, our comments would be the same as those stated in response to Question 9(a).
On the question of a charitable gift, our comments would be different. In the situation where, on the death of Mr. Donor, the interest in the policy was transferred to the Private Foundation as contingent policyholder, we are of the view that the eligible amount of this gift could not be included in the total charitable gifts for the taxation year of death under clause (c)(i)(C) of the definition "total charitable gifts" in subsection 118.1(1). Subsection 118.1(5) would not apply because in this situation the gift would not be made by Mr. Donor under his will nor would it be made by his estate and would not be deemed to have been made as a consequence of the death of Mr. Donor by virtue of subsection 118.1(5.2).
As to whether the gift could be included in the "total charitable gifts" under clause (c)(i)(A) of that definition under subsection 118.1, it would be necessary to determine whether such a transfer would constitute a gift under the applicable private law, and at what point in time any such donation would be made under the applicable private law. This issue is a private law matter in respect of which the CRA will not provide an interpretation.
Louise J. Roy
October 6, 2017
2017-070523
FOOTNOTES
Due to our system requirements, footnotes contained in the original document are reproduced below:
1 Within the meaning of subsection 148(9).
2 Inter alia, that the eligible amount was not included elsewhere in the calculation of an amount deducted in computing the tax payable by an individual under Part I for a taxation year.
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