DISCRETIONARY FAMILY TRUSTS

January 28, 2008
Written by Carl Wachhol
Establishing them can provide many advantages. But to ensure that such a strategy meets all your objectives, it is wise to consult experienced tax and legal advisors.

Simply put, a trust is a legal relationship that allows an individual to control property for the benefit of someone else.

When discussing trusts, people refer to either “inter vivos” trusts (created while the donor is still alive) or “testamentary” trusts (created within a will to take effect on the death of the grantor).

What is a discretionary family trust? This is an inter vivos trust created by, and for, the members of the same family. An inter vivos trust is a legal relationship created through a contract (the trust agreement) in which a person (the settlor) transfers assets to one or more persons (the trustee[s]) to c

A settlor may transfer a variety of assets into the trust, including investments, shares from a family corporation, rental properties, etc. In accordance with the level of discretion described in the trust deed, the trustee(s) may allocate the trust’s capital or income to one or more of the named beneficiaries.

 Beneficiaries can include the settlor’s spouse, children, grandchildren or, subject to certain tax provisions of the Income Tax Act, Canada (“Income Tax Act”), the settlor himself.

For income tax purposes, a trust is considered to be a separate taxpayer. The income in a trust is taxed in a similar manner as that of an individual.

Income in a testamentary trust is taxable at graduated tax rates, whereas in an inter vivos trust it is taxable at the highest marginal rate. The income taxable within a trust is the amount that remains after distributing income to the beneficiaries of the trust.

Adding to the complexity, the federal budget of Feb. 16, 1999 introduced a “Kiddie Tax” effective for 2000 and later taxation years. The “Kiddie Tax” applies to income of a child, under the age of 18, attributable to dividends from private corporations, or income earned through a trust that is derived from goods or services provided to (or in support of) a related person’s business. Income applicable to the “Kiddie Tax” is taxed at the top marginal tax rate.

The following outlines practical planning applications that remain viable for discretionary family trust:
Transferring capital gains to minor children: If an individual owns assets that will appreciate, it is possible to transfer those specifically identified assets to a discretionary family trust and have minor children as beneficiaries. There is a deemed disposition at fair market value when assets are transferred to a discretionary family trust.

Capital gains realized in the future on the assets transferred to the discretionary family trust can be allocated to the minor children and taxed without the application of the “Kiddie Tax” or attribution provisions of the Income Tax Act. As children generally have little taxable income, the gains often attract little or no income tax in the hands of the children.

Access to multiple exemptions/deductions: A discretionary family trust is an excellent vehicle from which a family can multiply certain tax deductions (the principal residence exemption and the enhanced capital gains deduction).

Splitting interest income: The “Kiddie Tax” is not applicable to interest income allocated to beneficiaries of discretionary family trusts that are minor children. An individual can loan funds to a discretionary family trust, charge interest at Canada Revenue Agency’s prescribed rate (currently – four per cent), and avoid all attribution and the “Kiddie Tax.”

Income earned on the funds loaned to the trust in excess of the interest charged is taxable in the beneficiaries’ hands.

Second-generation income: Second-generation income is income earned on income. In situations where the “Kiddie Tax” might be applicable to dividends received, any subsequent income earned on these amounts will not be subject to the “Kiddie Tax.”

In situations where a discretionary family trust is unrelated to a private corporation and there are no “Kiddie Tax” concerns, the regular attribution provisions of the Income Tax Act can still apply to interest and dividends earned in the trust; however, second-generation income avoids the attribution provisions of the Income Tax Act.

It is also advisable to maintain separate investment accounts for the second-generation income.

To summarize, establishing a discretionary family trust can provide for many advantages. To ensure that such a strategy meets all your objectives, it is wise to consult experienced tax and legal advisors.

Carl Wachholz is a senior manager within Deloitte’s Windsor tax practice unit.  • This e-mail address is being protected from spambots. You need JavaScript enabled to view it , 519-967-7778

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