1. LIVE IN L.A. Your all access pass to complete Wealth Management What would happen if you died yesterday? R. Daren Baxter, Q.C. TEP, Partner McInnes Cooper T. Chris Thomson, LL.B. TEP, RVP Wealth Planning

2. Advanced strategies reviewed Estate planning for the masses Impact of our legal system Having an approach Testamentary trusts – for most this is the extent of “advanced”

3. Advanced strategies reviewed Testamentary trust: Tax savings high-rate individual (NS) Example: $1,000,000 investment portfolio produces $50,000 income Outright to high-rate beneficiary: $50,000 x 50% (NS):$25,000 tax In testamentary trust instead: $10,000 x 1.6% : $ 160 tax $ 20,000 x 22.70% : $ 4,540 tax $ 10,000 x 27.5% : $ 2,750 tax $10,000 x 34.50% : $ 3,450 tax $50,000 income$ 10,900 total tax Annual tax saving: $ 14,100 Beneficiary can still receive the income (net of tax) Trust Beneficiary Pay income to beneficiary – after trust’s low tax

4. Advanced strategies reviewed Federal testamentary trust proposals Budget 2013 announced intention to hold public consultations on the application of progressive rates to testamentary trusts and estates Declared reasoning was neutrality of tax system (compared to tax treatment of inter vivos trusts) and protection of revenue base (against multiplication of testamentary trusts, unreasonable estate administration delays, OAS clawback planning) Finance announced on June 3, 2013 a series of proposals with respect to testamentary trusts and estates and opened a written consultation process that ends on December 2, 2013 The proposed measures will apply in 2016 (no grandfathering) and touch upon several provisions in the Act, not just the application of progressive tax rates

5. Advanced strategies reviewed Federal testamentary trust proposals Main change is the elimination of graduated rates – application of current top flat rate of 29% (rate applicable to income over $135,054 in 2013) – section 122 Trusts and estates affected: – Trusts created by will – Estates after 36 months of existence (flat top-rate estates) – Grandfathered inter vivos trusts (pre-June 18, 1971 trusts) Trusts not affected: – Preferred beneficiary trusts – Trusts for minor children Trusts created by will or flat top-rate estates will also be forced to have calendar year taxation years and fiscal periods 104(23)(a), 249(1) Non-flat top-rate estates will have a deemed year end when they become flat top-rate estates (i.e. after 36 months have expired since date of death)

6. Advanced strategies reviewed Federal testamentary trust proposals Other tax measures proposed affecting trusts created by will and flat top-rate estates Quarterly instalment rules will apply 104(23)(e) AMT basic exemption of $40,000 will be removed 127.53(1) Part XII.2 tax will apply 210 ITCs will not be able to be allocated by trust to beneficiaries 127(7) All the above restrictions already applicable to inter vivos trusts Administrative measures previously only applicable to testamentary trusts will also be eliminated for trusts created by will and flat top-rate estates Refunds of overpayment of tax 164(1.5) Filing of notices of objection 165(1) Debt forgiveness agreements 80.04(6)(a)(ii) Reassessments at taxpayer's request 152(4.2)

7. Advanced strategies reviewed Federal testamentary trust proposals Possibility for a trust to distribute assets to beneficiaries on tax-deferred basis depends on status of the trust as a personal trust - currently, a testamentary trust is automatically a personal trust. Under the new proposals, a trust created by will and flat top-rate estates must meet the same requirements as inter vivos trusts to qualify as personal trusts Interest in trust not acquired for consideration payable to the trust or a contributor 248(1) Proposals confirm that spousal rollovers on death will not be affected

8. Advance strategies reviewed So where does that leave us?

9. Advance strategies reviewed Some might suggest that we are here:

10. Topics Response to proposed testamentary trust rules Preferred corporate structure Estate freeze Wasting freeze Investment company and 55(2) trap / solution Alter ego trust / Joint partner trust Rights and things return Capital loss carryback

11. Response to proposed testamentary trust rules Don’t lose sight of non-tax reasons for testamentary trusts Plan to continue estate for 36 months to benefit from marginal tax rates –Allocation among beneficiaries without immediate distribution –Income from allocated assets allocated to specific beneficiary –Leave income allocation and timing of distributions to trustee

12. Common business structure Access to capital gains deduction likely not available Full capital gain taxed on death Limited creditor protection Company O/M Business Portfolio

13. Preferred corporate structure Opco Business Portfolio Trust Investco Discretionary dividend shares Surplus cash moved to Investco as tax free inter- corporate dividend as earned Investment assets separated from business risks Shares of Opco QSBC Individual has only contingent interest in trust Nothing for creditors No value in hands to be taxed upon death Common shares

14. Estate freeze Preferred shares required to effect estate freeze on tax deferred basis Existing value remains in hands of O/M Future growth to Trust Opco Business Portfolio Trust Investco O/M

15. Wasting estate freeze Use “wasting shares” for freeze Pay dividends first on Investco preferred shares Next, waste company shares to CGD limit Company Business Portfolio Trust Investco O/M

16. Wasting estate freeze By death: –No preferred shares of Investco –Company preferred shares sheltered by CGD –All residual value in Trust Opco Business Portfolio Trust Investco O/M

17. Common plan - 55(2) divisive reorganization trap Upon death of parents, trust assets divided among children Family Trust Investco Portfolio Child

18. 55 (2) divisive reorganization trap Children will want to separate their interests into separate companies 55(2) will deny tax deferred separation Investco Portfolio Child 1 Child 2 Child 3 Child 4

19. 55(2) divisive reorganization (“butterfly”) rules Inter-corporate dividend to newcos on divisive reorganization treated as capital gain where –Inherent gain in corporate assets –Otherwise tax free inter-corporate dividend (including deemed dividend on redemption) –Transaction otherwise results in reduction of capital gain, but for inter-corporate dividend –An unrelated persons obtains an increased interest in any company 55(5)(e) – siblings are not related for this rule

20. Planning opportunity - effect division reorganization during parent’s life Separate trust for each child, controlled by parent Each company has ¼ interest in portfolio Nominee corporation controls portfolio 1 1 Corp 1 2 2 4 4 3 3 Corp 3 Corp 2 Corp 4 Portfolio

21. Alter ego trust / Joint partner trust Alter ego trust –Settlor must be 65 years old –Settlor entitled to all income of the trust prior to death –No person other than settlor entitled to income or capital prior to death of settlor –No election filed not to be alter ego trust Joint spousal or common-law partner trust –As above, but both settlor and spouse / common-law partner entitled to income prior to later death and no one other than settlor and spouse / common-law partner entitled to capital prior to later death

22. Alter ego trust / Joint partner trust Taxation –Assets roll into trust on a tax deferred basis –Trust taxed as inter vivos trust If 75(2) applies, tax attributes to settlor –Deemed disposition at FMV in trust on last death Common uses –Incapacity planning / Continuity of control –Inter vivos creditor protection –Avoid estate litigation –Privacy –Probate tax avoidance –Technique to move situs of assets

23. Alter ego trust / Joint partner trust Preferred shares rolled to Alter ego trust or Joint partner trust Company Business Portfolio Trust Investco O/M Alter ego trust

24. Private company planning - probate tax Constitution Act, 1867 limits taxation authority of province to direct taxation within a province –Probate tax on property may only be applied to property within the province Shares are situate in the jurisdiction where they may be effectively dealt with as between the company and the shareholder –Normally where the share transfer register is maintained as required by corporate legislation CBCA allows registered office to be situate anywhere in Canada –Alberta probate tax maximum $400

25. Private company planning – Rights & Things return Separate return may be filed for rights & things of taxpayer owned at time of death –May claim another set of personal tax credits Alternatively, the right or thing may be transferred in kind to a beneficiary on a rollover basis –Within time for filing separate return –Beneficiary taxed when rights & things actually realized

26. Private company planning – Rights & Things return Rights & Things include: –Declared but unpaid dividends, unused vacation leave credits, work in progress of most professionals, and inventory of many farmers Planning opportunity – declare but do not pay a dividend until after death of taxpayer –Dividend taxable only when becomes payable –File a separate return for rights and things –Benefit of marginal rate (tax savings of $10,000 on a $30,000 dividend in Nova Scotia)

27. Can the costs of probate/estate tax be added to the ACB of capital property causing a larger loss to carry back to terminal year? Brosamler (2012 TCC 204) – Taxpayer successful in increasing ACB of real property in estate by pro-rata amount of probate and legal fees. Increased ACB increased the capital loss carried back to the estate. –Necessary to incur probate fees to sell the property CRA Round Table 2012 Ont. Tax Conf. Q.17 – Brosamler unique in its facts. Whether estate taxes incurred outside of Canada will increase ACB will depend upon the facts.

28. Loss reduction where gain in the estate following a loss on the redemption of shares Capital loss carryback is ground by loss denial rules CRA Roundtable 2012 Ont. Tax Conf. Q. 14 – If the estate realizes gains during the first taxation year, those gains must be applied against the loss on share disposition…will result in amount of loss stopped by 40(3.61)…which reduces the 164(6) election. Solutions: (1) Avoid gain in first tax year of estate; or (2) Distribute property to beneficiaries on a rollover basis under 107(2) prior to sale

29. Questions?

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