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 a custodian of a Retirement Compensation Arrangement ("RCA") trust can make the subsection 207.5(2) election after distributing the life insurance policy to its beneficiary and there is no property held by the RCA trust at the end of the year? 2) Whether the custodian of an RCA trust is required to withhold tax on the transfer of a life insurance policy to the RCA beneficiary?
Position: 1) Question of fact but maybe. 2) Yes.
Reasons: 1) Subject to subsection 207.5(3), the subsection 207.5(2) election would be available in the situation where the only property held by the trust consists of its right to claim a refund under subsection 164(1) or 207.7(1). If any part of a decline in value of the property of the RCA is reasonably attributable to a prohibited investment or to an advantage, subsection 207.5(3) could apply unless the Minister is satisfied that it is just and equitable to allow the subsection 207.5(2) election to be made. In the case of an RCA wind-up, the Minister may accept the election and adjust the amount deemed by subsection 207.5(2) to be the refundable tax to take into account all or part of the decline in value of the subject property.
2) Paragraph 153(1)(q) indicates that every person paying an amount as a distribution out of or under and RCA shall deduct or withhold from the payment an amount in accordance with prescribed rules. Pursuant to paragraph (b.1) of the definition of “remuneration” in subsection 100(1) of the Regulations, an amount of a distribution out or under an RCA is remuneration. A distribution out or under an RCA includes the transfer of a property to the beneficiary of an RCA trust.
XXXXXXXXXX 2015-058046
May 15, 2017
Dear Sir,
Re: Retirement Compensation Arrangement ("RCA") - Transfer of Life Insurance Policy
This letter is in response to your letter of April 9, 2015 and telephone conversations (Ayotte/XXXXXXXXXX) where you asked us for our position regarding the transfer of a life insurance policy held by an RCA trust to an employee who is the sole beneficiary of the RCA trust.
All legislative references in this letter are to the provisions of the Income Tax Act (the "Act") unless otherwise indicated.
Specifically, you requested our views on the application of subsection 207.5(2) to claim a refund under subsection 207.7(2) where, as a result of the transfer of the life insurance policy to the beneficiary, the RCA trust no longer holds property. In addition, you wish to know if the trustee of an RCA must withhold taxes when distributing non-cash property.
This technical interpretation provides general comments on the provisions of the Act and related legislation, where referenced. It does not confirm the income tax treatment of a particular situation involving a specific taxpayer but is intended to assist you in making that determination. The income tax treatment of particular transactions proposed by a specific taxpayer will only be confirmed by this Directorate in the context of an advance income tax ruling request submitted in the manner set out in Information Circular IC 70-6R7, Advance Income Tax Rulings and Technical Interpretations.
Election under subsection 207.5(2)
Subject to subsection 207.5(3), where a RCA trust no longer holds property at the end of a taxation year, other than a right to claim a refund under subsection 164(1) or 207.7(2), the custodian of that RCA can elect, for the taxation year, to calculate its refundable tax at the end of the year under subsection 207.5(2). Where the election is made, the amount of the tax payable under subsection 207.7(1) or the refund under subsection 207.7(2) shall be deemed for the purposes of subsection 207.5(2) to be the refundable tax of the arrangement at the end of the year.
Subsection 207.5(3) provides that subsection 207.5(2) does not apply in respect of an RCA trust if any part of a decline in the fair market value ("FMV") of “subject property of the RCA" (footnote 1) is reasonably attributable to a prohibited investment for, or an advantage in relation to, the RCA trust. However, this restriction does not apply if the Minister is satisfied that it is just and equitable to allow the election under subsection 207.5(2) to be made, having regard to all the circumstances. In such a case, the Minister may adjust the amount deemed by subsection 207.5(2) to be the refundable tax of the RCA to take into account all or part of the decline in the FMV of the subject property.
The definition of advantage where an RCA trust holds a life insurance policy
The different situations that may result in an RCA advantage are set out in paragraphs (a) to (e) of the definition of advantage under subsection 207.5(1).
Subject to certain exceptions not applicable to a benefit arising from the holding of a life insurance policy, paragraph (a) of the definition of advantage in subsection 207.5(1) provides that an advantage in respect of an RCA includes, among other things, any benefit that is conditional in any way on the existence of the RCA. We are generally of the view that the holding of a life insurance policy with life insurance coverage (death benefit) in a year is a benefit that is conditional on the existence of the RCA.
Under paragraph (d) of the definition of advantage under subsection 207.5(1), an advantage also includes an "RCA strip" in respect of the arrangement, as defined in subsection 207.5(1). This amount is the amount of a reduction in the FMV of subject property of the RCA, if the value is reduced as part of a transaction or event or a series of transactions or events one of the main purposes of which is to enable a “specified beneficiary” (footnote 2) of the arrangement, or a person or a partnership who does not deal at arm’s length with the specified beneficiary, to benefit from a provision of Part XI.3 or to obtain a benefit in respect of subject property of the arrangement or as a result of the reduction.
In this regard, the payment for life insurance coverage reduces the FMV of the subject property of the RCA trust each year as the amount paid for this protection is not invested in property held in connection with the RCA trust. Consequently, this reduction in the FMV of the property of the RCA trust could represent an amount arising from an RCA strip if the other conditions in that definition are met, and be an advantage under paragraph (d) of the definition of "advantage” in subsection 207.5(1).
Whether the holding of a life insurance policy represents an advantage in respect of an RCA for a calendar year and what is the amount of that benefit, is a matter that can only be determined in the light of all the relevant facts. Given the various possible components of a life insurance policy and the terms of an RCA trust, each situation must be considered on a case-by-case basis.
Consequences of an advantage
Where an advantage under paragraph (a) or (d) of the definition of advantage under subsection 207.5(1) is extended to or received by an RCA trust, a specified beneficiary of the RCA or any person who does not deal at arm’s length with the specified beneficiary, section 207.62 provides that the custodian of the RCA must pay a tax equivalent to the FMV of the benefit or the amount of the RCA strip. In addition, section 207.65 provides that, for the purpose of computing the refundable tax under subsection 207.5(1), tax paid under section 207.62 by a custodian of a retirement compensation arrangement out of property held in connection with the arrangement is deemed to be a distribution under the RCA for the taxation year in which the tax is paid to the extent that the tax has not been refunded, waived or cancelled. Thus, the 50% tax that is payable under subsection 207.7(1) will not be payable on the amounts paid in respect of tax under section 207.62.
Another consequence is the application of subsection 207.5(3), which restricts the ability to make an election under subsection 207.5(2). Since each situation is unique, it is impossible to identify all the situations that could lead to the application of subsection 207.5(3). Thus, without having all the relevant facts and documents, it is impossible for us to comment on the circumstances in which, as required under subsection 207.5(3), it would be reasonable to attribute part of a decrease in the FMV of the specified property of the RCA to an advantage in respect of an RCA that arises from the application of paragraph (a) or (d) of the definition of advantage in subsection 207.5(1).
In a situation where it is reasonable to attribute a portion of a decline in the FMV of the specified property of the RCA to an advantage relating to it, the custodian of the RCA trust would be unable to make an election under subsection 207.5(2) unless the Minister is satisfied that it is just and equitable in the circumstances to permit that election to be made.
In the situation where an RCA trust is wound up, the Minister may, depending on the circumstances, allow the election by adjusting the amount deemed under subsection 207.5(2) to be the RCA's refundable tax. The deemed amount may, depending on the circumstances, be adjusted to reflect the decline in the FMV caused by a prohibited investment or a benefit that would otherwise not result in a repayment.
Rule for the coming into force of subsection 207.5(3)
Under subsection 44(4) of the Jobs and Growth Act, 2012 (S.C. 2012, c. 31), subsection 207.5(3) applies to the election under subsection 207.5(2) in respect of tax paid under subsection 207.7(1) of the Act in respect of contributions made to an RCA after March 28, 2012 and income earned, capital gains realized and losses incurred, in respect of such contributions.
Withholding tax
Paragraph 153(1)(q) provides that every person paying at any time in a taxation year an amount as a distribution to one or more persons out of or under an RCA, must deduct or withhold from the payment the amount determined in accordance with prescribed rules. Where the trustee of an RCA pays an amount in cash or in the form of property to the beneficiary of the RCA under the terms of the RCA trust, the trustee must withhold the applicable tax.
We hope that our comments are of assistance.
Louise J. Roy, CPA, CGA
Manager
for the Director
Financial Industries and Trusts Division
Income Tax Rulings Directorate
Legislative Policy and Regulatory Affairs Branch
FOOTNOTES
Due to our system requirements, footnotes contained in the original document are reproduced below:
1 Subsection 207.5(1) defines a subject property of an RCA to mean property that is held in connection with the RCA.
2 For the purposes of subsection 207.5(1).
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