In 2022, the Department of Finance released draft legislation that includes, as part of a new regime of mandatory reporting rules, the notifiable transaction rules (“Rules”). The Rules are set to apply in a wide range of tax planning areas, including trust planning. If implemented in the form currently proposed, trust planning and compliance may be subject to yet another layer of complexity (keeping in mind that trust advisors already are grappling with draft legislation in respect of the still proposed “trust reporting rules”).
The following is a closer look at the Rules, solely in a trust planning context.
Overview of the Rules
Generally, the Rules will trigger a reporting obligation where a person enters into a transaction or series of transactions that is the same as, or substantially similar to, certain transactions or series of transactions that have been “designated” by the Minister of National Revenue, with the concurrence of the Minister of Finance.
The rules are drafted broadly, and expressly indicate they are to be interpreted broadly in favour of disclosure.
The obligation to report can apply to a broad range of persons, including any person for whom a tax benefit arises based on the transaction at issue, and every advisor in respect of that transaction (which generally would include applicable legal and accounting advisors).
There is currently no prescribed form for this reporting, although it has the potential to be very detailed and onerous.
The deadline to report generally is 45 days after a person enters into the transaction or becomes contractually obligated to do so.
The ramifications of failing to report are significant. Penalties are steep – for individual taxpayers, penalties can be the greater of $25,000 and 25% of the tax benefit – and for advisors, penalties can include their related fees, plus a maximum of an additional $110,000.
Also, failing to report a notifiable transaction allows the Minister to assess or reassess a taxpayer outside of the normal reassessment period (which is generally limited to 3 years for most taxpayers including trusts).
Sample designated transactions related to trust planning
Accompanying the draft legislation are “sample designated transactions” that would require reporting under the Rules. There are three (3) general types of transactions related to trust planning – all of which are aimed at deferring or avoiding the imposition of tax on a 21 year deemed disposition of trust property.
Transaction 1 describes a tax-deferred distribution of trust property from a Canadian resident trust to a Canadian resident corporate beneficiary where shares of that beneficiary are owned by a second Canadian resident trust. This distribution to a corporate beneficiary would potentially allow a “new” 21 year deemed disposition period to commence in respect of the trust property. A direct distribution to the second trust would not avoid the 21 year deemed disposition.
Transaction 2 describes a tax-deferred distribution of trust property from a Canadian resident trust to a Canadian resident corporate beneficiary where shares of that beneficiary are owned by one or more non-resident beneficiaries. This distribution would potentially allow for a tax-deferred distribution of trust property in advance of a pending 21 year deemed disposition. In contrast, a direct distribution of the trust property to the non-residents would not be tax-deferred.
Transaction 3 targets a transaction where a Canadian resident corporation declares and pays a tax-free intercorporate dividend, through a Canadian resident trust, to a second Canadian resident corporation where shares of that entity are in turn owned by a second Canadian resident trust. The net effect of the transaction would be to reduce or eliminate the accrued gain in the property of the first trust that would otherwise be subject to tax on a 21 year deemed disposition.
Where do we go from here?
If we assume these “sample designated transactions” indeed become “designated transactions,” there are numerous potential issues and outstanding questions. The following is a brief list.
Can the rules apply to transactions that were implemented before the effective date of the new Rules? The answer appears to be that the Rules could apply, based on the broad scope of the expression “series of transactions,” the definition of “notifiable transaction” and the wording of the current implementation rules. Careful consideration should urgently be given to possible mitigation steps for clients in these circumstances.
Are there options for clients that still want to pursue a transaction that has some similarity to a designated transaction? Options may include (a) proceeding with the transaction and reporting as required under the Rules, and (b) proceeding with a variation of the transaction and adopting a legal position that reporting is not required. Due to the potential adverse consequences of the Rules, careful consideration would be required.
When would a transaction be “substantially similar” to a designated transaction? The sample transactions are drafted very broadly. For example, what if a non-resident owns “some” shares of a corporate beneficiary of a Canadian trust? What is the threshold of ownership required before that transaction would be substantially similar to Transaction 2 described above?
Will more trust related transactions ultimately become “designated transactions”? One would expect this is a realistic possibility – and in that event, could other planning that is currently underway potentially be caught in the future based on the series of transaction concepts? Can current planning be structured to allow potential measures in the future to bring a series to a conclusion (or at least be able to defensibly take that position)?
Will the Rules be clear enough to allow for effective compliance?
The Rules potentially will have a “chilling effect” over a wide range of trust planning, due to uncertainty as to whether the Rules will apply or not, and uncertainty over how to properly comply with the Rules. If there continues to be significant uncertainty after the final form of the Rules come into force, one wonders about potential legal arguments to narrow their application based on general principles of statutory interpretation.
What can we do now?
While the Rules remain under further consideration by the Department of Finance, this is an opportune time for trustees and advisors to educate themselves about these new reporting requirements. It may be time to consider steps today to mitigate the consequences of previous and future trust planning transactions in light of these new measures.
If you have any questions or need assistance, please reach out to a member of our Miller Thomson Corporate Tax Group.