CPABC in Focus September/ October 2015 | Page 40

Bill C-43 Brings Changes for Spousal and Joint Partner Trusts: Expiring Clients, Expiring Tax Opportunities By Faizal Valli, CPA, CA, and Brendan L’Heureux, LLB, CPA, CA Faizal Valli is a senior manager in tax services with Ernst & Young LLP in Vancouver, specializing in tax and estate planning for private clients. Brendan L’Heureux is a tax senior at Ernst & Young LLP in Vancouver. T he November/December 2014 issue of CPABC in Focus included a tax article entitled “Spousal and Joint Partner Trusts – A Case Study Highlighting Benefits and Important Tax Considerations,” which reviewed the benefits and tax considerations of spousal and joint partner (JP) trusts. On December 16, just a few weeks after that issue was published, Bill C-43, the Economic Action Plan 2014 Act, No. 2, received royal assent. The tax changes Bill C-43 has introduced are significant enough to warrant a second look at spousal and JP trust planning. These changes may herald unanticipated tax consequences for established trusts, and practitioners need to consider how to mitigate the coming impacts. Changes and additions As discussed in the November/December 2014 article, a settlor of any age may create a spousal trust for the benefit of their spouse,1 while a settlor aged 65 or older may create a JP trust for the benefit of either partner. Any number and types of residual beneficiaries are permitted under either trust vehicle, although they do not become entitled to trust income or capital until the (last surviving) spousal beneficiary has died. The 2014 article presented a case study in which spousal or JP trusts were considered for a John and Jane Doe. Some of the tax considerations reviewed in that article have changed materially as a result of Bill C-43’s passing—notably: • Deemed dispositions on the death of the (last surviving) spousal beneficiary; • Charitable donations made on death; and • Capital gains deduction claims by a spousal trust. In addition, the following new tax concepts warrant special attention: • The introduction of graduated rate estates (GREs) and • The mismatching of tax liability between trust and estate. The spousal and JP trust benefits of probate savings and the avoidance of wills variation still apply notwithstanding the changes introduced by Bill C-43. However, for taxpayers who are in a position to alter their current or proposed trust arrangements, careful reflection is required. Graduated rate estates introduced Bill C-43 has restricted the availability of marginal tax rates to testamentary trusts by introducing the concept of GREs. As mentioned in the July/August 2015 issue of CPABC in Focus,2 a GRE is a testamentary trust arising on, or as a consequence of, an individual’s death, and this testamentary trust must be designated as a GRE on its first tax return. All testamentary trusts are currently subject to marginal (graduated) tax rates. Beginning in 2016, however, only GREs will be subject to these rates. The benefits afforded to GREs will include: • Taxation at marginal tax rates on income earned within the GRE for its first 36 months; • New charitable donation rules (discussed below) for donations made by will or in the GRE; and • A capital gains exemption on share donations. Throughout this article, the term “spouse” refers to a spouse or common-law partner, and includes same-sex partners. 1 Stephanie Yu, CPA, CA, “Post-Mortem Donations – Legislative Changes and Their Impact,” CPABC in Focus, July/August 2 2015 (26-28). 40  CPABC in Focus • Sept/Oct 2015