CPABC in Focus July/August 2015 | Page 26

Post-Mortem Donations – Legislative Changes and Their Impact By Stephanie Yu, CPA, CA Stephanie Yu, CPA, CA, is a senior associate in the private client services group at PwC in Vancouver, specializing primarily in corporate taxation and estate planning for high-net-worth (HNW) individuals. She would like to thank Colleen Reichgeld, CPA, CA, a tax partner in PwC’s HNW group, for providing valuable input on this article. Note to readers: Within the tax community, there has been some controversy with respect to the new trust legislation enacted in 2014. Accordingly, the author advises readers to remain alert to the possibility of proposed changes in 2015/2016. T he Federal Budget of 20141 introduced several tax measures that affect charitable donations and estate planning. The new legislation applies to deaths after 2015, and strives to provide greater flexibility for executors to use charitable donation tax credits (DTC) from property donated on or after an individual’s death. Current legislation Donations made by will are deemed to have been made by the deceased individual immediately prior to death. The donation value is determined as of the date of death, and the DTC may be claimed on the terminal return or the immediately preceding return.2 Excess DTCs cannot be claimed by the estate. The current rules rely heavily on the CRA’s interpretation of the individual’s will to determine whether the donation is claimed by the individual or the estate. A mismatch between the taxpayer and/or the taxation year can result in the inability to use the DTC to shelter the tax liability on death. beneficiary of an RRSP, TFSA, RRIF, or death benefit on the life insurance policy of the deceased, the donation will be deemed to have been made by the estate and, therefore, will be eligible for the new rules.8 Donations claimed on the terminal return or on the prior-year return continue to be 100% eligible for the DTC, whereas the 75% threshold continues to apply for donations claimed by the estate.9 Gifts made by a trust or an estate that is not a GRE may be claimed by the trust and carried forward five years. The new legislation also allows individuals to claim donations made by their spouse.10  ill C-43 was introduced in the 2014 B 1 federal budget and received Royal Assent on December 16, 2014. It will become effective for deaths occurring after 2015.  ee subsections 118.1(4) and 118.1(5) of S 2 Canada’s In