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Disposition of an Income Interest in a Trust

Ever wondered how the money from a family trust impacts your taxes? Understanding income interests in a trust is key to unlocking this mystery. An income interest in a trust refers to the right of a beneficiary to receive income generated by the trust’s assets. For families with family-owned enterprises, comprehending the tax implications of these interests is crucial for effective wealth management and tax planning.

Income interests can be complex, and the tax rules governing them are detailed and nuanced. The Canada Revenue Agency (CRA) provides guidelines through Income Tax Folio S6-F2-C1, which offers technical interpretations and positions on these provisions. This folio is an essential resource for tax specialists and anyone involved in trust and estate planning, ensuring they stay compliant with the law while optimizing their financial strategies.

Understanding these guidelines helps families make informed decisions about how to manage their trusts, ensuring that their financial legacy is preserved and passed on efficiently. For families with significant assets in trusts, navigating these tax rules effectively can mean the difference between safeguarding wealth and facing unexpected tax liabilities.

Understanding Income Interest in a Trust

Definition: Explanation of What Constitutes an Income Interest in a Trust as Per Subsection 108(1)

An income interest in a trust is a fundamental concept in trust law and tax planning, particularly for families with family-owned enterprises. According to subsection 108(1) of the Income Tax Act, an income interest in a trust is defined as a right, whether immediate or future, and whether absolute or contingent, that a beneficiary holds under a personal trust to receive all or any part of the income generated by the trust. This definition encompasses rights that can be enforced to secure payment from the trust. Importantly, for tax purposes, the income considered is computed based on trust accounting principles, not income tax principles, and is further refined by subsection 108(3).

This comprehensive definition ensures that all potential income streams a beneficiary might receive from a trust are covered, providing a clear basis for taxation and legal interpretation. For families managing substantial assets through trusts, understanding this definition is crucial to navigate the complexities of income distribution and tax obligations effectively.

Personal Trust: Differentiation Between Testamentary and Inter Vivos Trusts and Their Implications

A personal trust, as outlined in subsection 248(1), plays a pivotal role in estate planning and wealth management. Personal trusts can be broadly categorized into testamentary trusts and inter vivos trusts, each with distinct characteristics and implications.

  • Testamentary Trust: This type of trust is created upon the death of an individual, typically through their will. The testamentary trust comes into existence as specified by the will’s provisions and is primarily used to manage and distribute the deceased’s estate. Testamentary trusts often benefit from certain tax advantages, such as the ability to income-split among beneficiaries, which can lead to significant tax savings for families with large estates.
  • Inter Vivos Trust: Also known as a living trust, an inter vivos trust is established during the lifetime of the individual (settlor). This type of trust allows for the transfer of assets into the trust to be managed and distributed according to the settlor’s wishes during their lifetime and beyond. One key feature of inter vivos trusts is that no beneficial interest is acquired for consideration payable to the trust or any contributing person, making them suitable for estate planning without immediate tax implications. These trusts can provide benefits such as asset protection, privacy, and potentially reduced probate fees.

For tax purposes, the distinction between these types of trusts is crucial. For instance, after 1999, a personal trust does not include a unit trust, ensuring that the tax benefits associated with personal trusts are not extended to entities functioning more like investment funds.

Capital Interest: Brief Mention to Distinguish from Income Interest

While discussing income interests, it is essential to briefly address the concept of a capital interest in a trust to differentiate it clearly. A capital interest in a trust, as defined in subsection 108(1), encompasses all rights a beneficiary has under the trust that are not classified as income interests. Essentially, it pertains to the right to receive the capital of the trust, either during the term of the trust or upon its termination.

Understanding the distinction between income and capital interests is vital for tax planning and legal structuring of trusts. Income interests typically involve regular payments from the trust’s earnings, which are subject to specific tax rules under subsection 106(2). In contrast, capital interests involve the distribution of the trust’s principal assets, governed by different tax provisions under section 107.

For families managing trusts, recognizing these distinctions helps in making informed decisions about the timing and method of distributions, optimizing tax efficiency, and ensuring compliance with relevant tax laws.

In conclusion, comprehending the nuances of income interests, personal trusts, and capital interests is fundamental for families with family-owned enterprises. This knowledge enables effective estate planning, ensuring that wealth is preserved and transferred efficiently across generations while minimizing tax liabilities. For tailored advice and expert guidance on managing trusts, Shajani CPA is here to support your ambitions.

Assignments and Other Dispositions of an Income Interest

Assignments: What Happens When an Income Interest is Assigned or Transferred

When an income interest in a trust is assigned or transferred, several legal and tax implications arise that must be carefully considered. An income interest, as defined in subsection 108(1) of the Income Tax Act, is the right of a beneficiary to receive income from a trust. When this right is transferred, the nature of the transfer and the relationship between the parties involved significantly affect the tax treatment.

The assignment or transfer of an income interest can occur for various reasons, including estate planning, asset reallocation, or as part of a financial transaction. Generally, such transfers are categorized based on whether they occur at arm’s length or non-arm’s length. At arm’s length refers to parties that are independent and on equal footing, whereas non-arm’s length typically involves related parties, such as family members.

Non-Arm’s Length Disposition and Inter Vivos Gift: Tax Implications When the Transfer is Between Related Parties or Given as a Gift

When an income interest is transferred between non-arm’s length parties or given as an inter vivos gift, several tax implications must be considered. These transfers often involve family members and can have significant tax consequences under the Income Tax Act.

Non-Arm’s Length Disposition:

When an income interest is transferred to a related party, it is considered a non-arm’s length disposition. According to the Income Tax Act, such transfers are deemed to occur at fair market value (FMV) regardless of the actual transaction amount. This rule ensures that the transferor is taxed based on the FMV of the income interest at the time of the transfer.

The deemed disposition at FMV can trigger immediate tax consequences for the transferor. The difference between the FMV and the adjusted cost base (ACB) of the income interest results in a taxable capital gain or loss. The transferor must report this gain or loss on their income tax return for the year of the transfer.

For the transferee, the ACB of the acquired income interest is set at the FMV at the time of the transfer. This ACB will be used to calculate any future gains or losses when the income interest is subsequently disposed of.

Inter Vivos Gift:

An inter vivos gift is a transfer of an income interest made during the lifetime of the transferor without consideration or for nominal consideration. Such gifts are also subject to the deemed disposition rules at FMV.

Similar to non-arm’s length dispositions, the transferor of an inter vivos gift must report any capital gain or loss resulting from the difference between the FMV and the ACB of the income interest.

The transferee’s ACB for the gifted income interest is the FMV at the time of the gift. This ensures that the transferee’s tax basis in the income interest is properly accounted for in future dispositions.

Practical Considerations and Strategies

Given the tax implications of assigning or transferring an income interest, it is essential for families and individuals to plan carefully. Here are some practical considerations and strategies:

  • Valuation: Accurate valuation of the income interest is crucial to ensure compliance with tax rules. Engaging a qualified professional for valuation can help determine the FMV accurately.
  • Tax Planning: Consider the timing of the transfer and the potential tax impact on both the transferor and the transferee. In some cases, spreading the transfer over multiple years might help manage tax liabilities.
  • Legal Documentation: Proper legal documentation of the transfer is essential to establish the terms and conditions, especially in non-arm’s length transactions. This documentation can also provide clarity in case of any future disputes or tax audits.
  • Professional Advice: Consulting with tax professionals and legal advisors can help navigate the complexities of these transfers and ensure that all tax and legal requirements are met.

The assignment or transfer of an income interest in a trust involves careful consideration of tax implications, particularly in non-arm’s length dispositions and inter vivos gifts. Understanding these rules and planning accordingly can help families manage their wealth efficiently and comply with tax laws. For expert guidance on trust and estate planning, Shajani CPA is here to support your ambitions and provide tailored advice.

Tax Implications of Dispositions

Income Inclusion: Explanation of Subsection 106(2) and How Proceeds from Dispositions are Included in Income

Subsection 106(2) of the Income Tax Act (ITA) plays a crucial role in the taxation of proceeds from the disposition of an income interest in a trust. According to this subsection, when an income interest in a trust is disposed of, any proceeds received by the beneficiary must be included in their income. This inclusion ensures that the beneficiary is taxed on the financial benefits derived from relinquishing their right to future income from the trust.

The proceeds from the disposition of an income interest are considered income in the year they are received. This rule applies whether the disposition occurs through sale, transfer, or any other form of relinquishment of the income interest. The inclusion in income reflects the value that the beneficiary gains from the disposition, which compensates for the loss of future income streams from the trust.

For example, if a beneficiary sells their income interest for $50,000, this amount is included in their income for the year of the sale. The tax treatment ensures that the economic gain from the disposition is appropriately taxed, preventing beneficiaries from avoiding taxation on funds that represent the present value of future income.

Allowable Deduction: How Costs Related to the Income Interest Can Be Deducted as Per Subsection 106(1)

Subsection 106(1) of the ITA provides for the deduction of certain costs related to the income interest, which can offset the amount included in income under subsection 106(2). These allowable deductions typically include the adjusted cost base (ACB) of the income interest and any expenses incurred directly in relation to the disposition.

The ACB of the income interest represents the original cost or value of the interest when it was acquired, adjusted for any subsequent changes or additional investments. Deducting the ACB ensures that only the net gain from the disposition is subject to taxation, thereby preventing the double taxation of the same economic value.

Additionally, expenses directly related to the disposition, such as legal fees, brokerage fees, and other transaction costs, can be deducted. These deductions reduce the taxable amount by accounting for the costs incurred in realizing the proceeds from the disposition.

For instance, if the beneficiary sells their income interest for $50,000 but had an ACB of $10,000 and incurred $5,000 in legal fees, they can deduct these amounts from the proceeds. Thus, the net income included in their taxable income would be $35,000 ($50,000 – $10,000 – $5,000).

Distribution of Property by the Trust: Tax Consequences When a Trust Distributes Property to Satisfy an Income Interest

When a trust distributes property to a beneficiary to satisfy an income interest, several tax consequences arise for both the trust and the beneficiary. Such distributions can take various forms, including cash payments, securities, real estate, or other assets held by the trust.

For the trust, the distribution of property typically triggers a deemed disposition of the distributed assets at their fair market value (FMV). This deemed disposition can result in capital gains or losses for the trust, which must be reported in its tax return. The trust is responsible for any taxes due on the capital gains realized from this deemed disposition.

For the beneficiary, the receipt of property to satisfy an income interest is considered a taxable benefit. The FMV of the distributed property is included in the beneficiary’s income in the year of distribution. This inclusion ensures that the beneficiary is taxed on the economic benefit derived from receiving the property.

Moreover, the beneficiary’s cost base for the received property is set at its FMV at the time of distribution. This cost base is important for future tax purposes, as it will be used to calculate any capital gains or losses when the beneficiary subsequently disposes of the property.

For example, if a trust distributes shares valued at $100,000 to a beneficiary to satisfy their income interest, the trust must recognize any capital gain or loss based on the FMV and the ACB of the shares. The beneficiary includes the $100,000 FMV in their income for the year, and their cost base for the shares is also $100,000 for future tax calculations.

In conclusion, the tax implications of dispositions of an income interest in a trust involve careful consideration of income inclusion under subsection 106(2), allowable deductions under subsection 106(1), and the consequences of property distributions by the trust. Proper planning and understanding of these rules can help beneficiaries and trusts manage their tax obligations effectively. For tailored advice and comprehensive tax planning, Shajani CPA is here to guide you through these complexities.


Special Cases

Disclaimer: Conditions Under Which a Disclaimer is Valid and Its Tax Implications

A disclaimer in the context of an income interest in a trust is an outright refusal to accept a gift or interest. When a beneficiary disclaims their right to an income interest, it is treated as though they never received the interest. For a disclaimer to be valid and recognized for tax purposes, specific conditions must be met.

  1. Timing: The disclaimer must be made within a reasonable period after the beneficiary becomes aware of the gift or interest. This ensures that the disclaimer is genuine and not a reaction to subsequent circumstances.
  2. Acceptance: The beneficiary must not have accepted any benefits or payments related to the income interest before executing the disclaimer. Acceptance of benefits indicates that the beneficiary has already exercised their right to the interest, making a disclaimer invalid.
  3. Form: The disclaimer must be in writing and comply with relevant provincial laws governing disclaimers and trust agreements. The disclaimer should clearly state the beneficiary’s intention to refuse the interest without favoring any specific person.

When these conditions are met, the disclaimer is considered valid, and the beneficiary is not treated as having acquired the income interest. Consequently, subsection 106(2) does not apply, and there are no tax implications for the disclaiming beneficiary. However, if the disclaimer is not valid, it may be treated as a release, surrender, or assignment, with corresponding tax consequences.

Release or Surrender: Differentiating Between Releases and Surrenders With and Without Consideration

A release or surrender involves giving up a legal right or claim to an income interest in a trust. The tax treatment of a release or surrender depends on whether consideration is provided in return.

With Consideration:

  • When a beneficiary releases or surrenders their income interest in exchange for consideration, such as money or property, subsection 106(2) applies. The beneficiary must include the FMV of the consideration received in their income for the year.
  • Additionally, paragraph 69(1)(b) deems the beneficiary to have received proceeds equal to the FMV of the income interest, even if the actual consideration is less. This rule ensures that the beneficiary is taxed based on the fair value of the interest relinquished.

Without Consideration:

  • If a beneficiary releases or surrenders their income interest without receiving any consideration and does so in accordance with the trust terms and relevant provincial law, subsection 106(2) does not apply. The beneficiary is not considered to have received any proceeds, and there is no income inclusion.
  • This treatment also applies if the beneficiary designates who will benefit from the release or surrender, provided the same persons would have benefited under the trust’s terms without the designation. However, attribution rules in subsections 74.1(1) and (2) may apply if the new beneficiaries are related persons.

For example, if a father releases his income interest in a trust in favor of his adult children without any consideration, the release is not taxable. However, if the release is in favor of a spouse or minor child, attribution rules would apply, potentially affecting the father’s tax obligations.

Qualifying Disposition Between Trusts: How Qualifying Dispositions Are Treated Under Subsection 107.4(1)

A qualifying disposition occurs when property is transferred between two personal trusts without changing the beneficial ownership. Subsection 107.4(1) sets out the conditions for a disposition to qualify, ensuring continuity in the trust’s operation and preserving tax attributes.

  1. No Change in Beneficial Ownership: The primary condition is that there must be no change in the beneficial ownership of the property being transferred. The same beneficiaries must hold equivalent interests in both the transferor and transferee trusts.
  2. Conditions of the Transfer: The transfer must meet specific conditions outlined in subsection 107.4(1), including that the transferor and transferee trusts are personal trusts, and the property is transferred on a rollover basis, meaning it is not immediately taxable.

Under these conditions, paragraph 107.4(3)(n) ensures that the disposition is not considered a taxable event for the purposes of subsection 106(2). The income interest in the transferor trust is deemed not to have been disposed of, preserving the tax attributes and continuity for the beneficiary. This treatment allows for efficient restructuring of trusts without triggering immediate tax liabilities.

Understanding the special cases of disclaimers, releases or surrenders, and qualifying dispositions is crucial for effective trust management and tax planning. Each scenario has specific conditions and tax implications that must be carefully navigated to optimize outcomes and ensure compliance. For expert advice and tailored solutions, Shajani CPA is dedicated to guiding you through these complexities.

Considerations for Non-Residents

Non-Resident Beneficiaries: Application of Subsection 106(2) to Non-Resident Beneficiaries and Their Tax Obligations

Navigating the tax implications for non-resident beneficiaries of Canadian trusts involves understanding how subsection 106(2) of the Income Tax Act (ITA) applies to them. Non-resident beneficiaries are subject to specific rules that ensure Canada can tax income derived from Canadian sources, even if the beneficiary resides outside the country.

Application of Subsection 106(2) to Non-Resident Beneficiaries

Subsection 106(2) stipulates that any proceeds received from the disposition of an income interest in a trust must be included in the beneficiary’s income. This rule is equally applicable to non-resident beneficiaries, ensuring that they are taxed on proceeds from Canadian trusts in the same manner as resident beneficiaries.

For non-resident beneficiaries, the key considerations under subsection 106(2) include:

Taxable Income Inclusion: Non-resident beneficiaries must include the proceeds from the disposition of an income interest in their taxable income for Canadian tax purposes. This inclusion ensures that Canada captures tax on income interests disposed of, regardless of the beneficiary’s residency status.

Calculation of Proceeds: The proceeds of disposition for non-residents are calculated similarly to those for residents. This includes determining the fair market value (FMV) of the income interest at the time of disposition and including this amount in the beneficiary’s taxable income.

Deductible Costs: Non-resident beneficiaries can deduct the costs associated with the income interest, as outlined in subsection 106(1). These costs include the adjusted cost base (ACB) and any expenses directly related to the disposition, reducing the taxable amount.

Tax Obligations for Non-Resident Beneficiaries

The tax obligations for non-resident beneficiaries disposing of an income interest in a Canadian trust are designed to ensure Canada taxes income derived from Canadian sources adequately. Key obligations include:

Filing Canadian Tax Returns: Non-resident beneficiaries must file a Canadian tax return to report the income inclusion from the disposition of the income interest. This filing ensures that the Canada Revenue Agency (CRA) can assess and collect the appropriate taxes.

Withholding Tax: In some cases, Canadian tax law requires the trust to withhold tax on amounts distributed to non-resident beneficiaries. This withholding helps ensure tax compliance and facilitates tax collection on income distributed to non-residents.

Reporting Requirements: Non-resident beneficiaries must comply with Canadian reporting requirements, including disclosing the disposition of the income interest and any associated proceeds. Accurate reporting is essential to avoid penalties and ensure compliance with Canadian tax laws.

Double Taxation Relief: Non-resident beneficiaries should consider any applicable tax treaties between Canada and their country of residence. These treaties often provide relief from double taxation, allowing beneficiaries to claim foreign tax credits or exemptions for taxes paid in Canada on their home country tax returns.

Example Scenario

Consider a non-resident beneficiary, Mr. Smith, who resides in the United States and holds an income interest in a Canadian trust. In 2023, Mr. Smith decides to sell his income interest for $50,000. Under subsection 106(2), he must include this $50,000 in his Canadian taxable income for the year.

To determine his net taxable income, Mr. Smith can deduct any allowable costs associated with the income interest, such as an ACB of $10,000 and legal fees of $5,000 incurred during the disposition. Therefore, his net income inclusion would be $35,000 ($50,000 – $10,000 – $5,000).

Mr. Smith must file a Canadian tax return for 2023 to report this income and pay any taxes due. Additionally, he should review the Canada-U.S. tax treaty to determine if he can claim a foreign tax credit on his U.S. tax return for the Canadian taxes paid, thereby avoiding double taxation.

Non-resident beneficiaries of Canadian trusts must navigate specific tax rules and obligations to ensure compliance with Canadian tax laws. Understanding the application of subsection 106(2) and fulfilling filing and reporting requirements are essential steps in managing these tax implications effectively. For personalized guidance and support in navigating these complexities, Shajani CPA offers expert advice tailored to your unique circumstances.

Practical Examples

Example 1: Distribution of Shares to Satisfy an Income Interest and the Resulting Tax Implications

Mr. X is the income beneficiary of a family trust that holds various assets, including shares of a publicly traded company. The trust decides to distribute shares valued at $100,000 to Mr. X to satisfy his income interest.

Tax Implications for Mr. X:

  • Income Inclusion: When the trust distributes the shares, subsection 106(2) does not apply if the distribution satisfies the income interest directly. Instead, subsection 106(3) deems the trust to have disposed of the shares at their fair market value (FMV).
  • Tax Consequence for the Trust: The trust must recognize any capital gain or loss on the deemed disposition of the shares. If the adjusted cost base (ACB) of the shares is $60,000, the trust realizes a capital gain of $40,000 ($100,000 FMV – $60,000 ACB).
  • Cost Base for Mr. X: The cost base for Mr. X of the received shares is their FMV at the time of distribution, which is $100,000.

Mr. X does not include the $100,000 in his income, as it is considered a distribution of capital rather than income. However, he must track the cost base for future capital gains or losses if he later sells the shares.

Example 2: Gifting an Income Interest and Calculating the Income Inclusion

Ms. Y, the income beneficiary of a family trust, decides to gift her income interest to her daughter, Ms. Z. The FMV of the income interest at the time of the gift is $50,000. Previously, Ms. Y included $10,000 in her income under subsection 104(13) related to this interest.

Tax Implications for Ms. Y:

  • Income Inclusion: Under subsection 106(2), the proceeds of disposition are $50,000 (the FMV). However, since $10,000 has already been included in Ms. Y’s income, she can reduce the proceeds by this amount under paragraph 106(2)(a)(ii).
  • Net Income Inclusion: The net amount included in Ms. Y’s income for the year of the gift is $40,000 ($50,000 FMV – $10,000 previously included).

Tax Implications for Ms. Z:

  • Cost Base for Ms. Z: The cost base for Ms. Z of the acquired income interest is its FMV at the time of the gift, which is $50,000.

Ms. Y must report the $40,000 in her income for the year, while Ms. Z will use the $50,000 cost base for future dispositions.

Example 3: Distribution of Trust Income to a New Beneficiary and Deducting the Cost of the Income Interest

Mr. A transfers his income interest in a trust to his son, Mr. B, for no consideration. The FMV of the income interest at the time of the transfer is $30,000. In the following year, the trust distributes $15,000 of income to Mr. B.

Tax Implications for Mr. A:

  • Income Inclusion: Since the transfer was for no consideration, Mr. A is not deemed to have disposed of the income interest at FMV. Therefore, there is no immediate income inclusion for Mr. A.

Tax Implications for Mr. B:

  • Income Inclusion: B must include the $15,000 trust income in his income under subsection 104(13).
  • Cost Deduction: B can deduct the cost of the income interest against the income included under subsection 104(13). The cost to Mr. B is deemed to be nil under subsection 106(1.1), except for any amount previously recognized.

Net Taxable Income for Mr. B:

Mr. B includes the full $15,000 distribution in his income since the cost deduction is nil.

These examples illustrate the complexity and importance of understanding the tax implications of various scenarios involving income interests in a trust. Proper planning and professional advice can help navigate these rules effectively, ensuring compliance and optimizing tax outcomes. For personalized assistance with trust and estate planning, Shajani CPA offers expert guidance tailored to your needs.


Understanding the provisions related to the disposition of an income interest in a trust is crucial for effective tax planning, especially for families with family-owned enterprises. These rules, governed by subsections such as 106(2) and 106(1), are designed to ensure fair taxation while offering opportunities to optimize tax outcomes. Whether dealing with assignments, gifts, or distributions of property, each scenario carries specific tax implications that must be carefully navigated.

Given the complexity of these rules, consulting with a tax expert is highly recommended. A knowledgeable professional can help you interpret the nuances of the Income Tax Act, ensuring compliance and maximizing your tax efficiency. By seeking expert advice, you can make informed decisions that protect your wealth and align with your financial goals.

At Shajani CPA, we specialize in providing personalized guidance and support tailored to your unique circumstances. Our team of experienced tax professionals is dedicated to helping you navigate these complex rules with confidence. We are committed to understanding your ambitions and guiding you every step of the way.

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Share your ambitions with us, and let Shajani CPA guide you to achieve your financial goals. Contact us today for personalized advice and support that ensures your tax planning is both effective and compliant. Together, we can navigate the complexities of trust and estate planning, securing a prosperous future for your family-owned enterprise.


This information is for discussion purposes only and should not be considered professional advice. There is no guarantee or warrant of information on this site and it should be noted that rules and laws change regularly. You should consult a professional before considering implementing or taking any action based on information on this site. Call our team for a consultation before taking any action. ©2024 Shajani CPA.

Shajani CPA is a CPA Calgary, Edmonton and Red Deer firm and provides Accountant, Bookkeeping, Tax Advice and Tax Planning service.

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Nizam Shajani, Partner, LLM, CPA, CA, TEP, MBA

I enjoy formulating plans that help my clients meet their objectives. It's this sense of pride in service that facilitates client success which forms the culture of Shajani CPA.

Shajani Professional Accountants has offices in Calgary, Edmonton and Red Deer, Alberta. We’re here to support you in all of your personal and business tax and other accounting needs.