May tax news: Estate strategies, tuition tax credits-and more

ESTATES AND THE “PIPELINE” STRATEGY

When a person dies, they are deemed to dispose of most of their capital properties at fair market value. This deemed disposition may trigger capital gains or losses, depending on the tax cost of the properties relative to their current fair market value.

The person who acquires the property as a result of the person’s death, which can include the deceased’s estate, acquires the property at a tax cost equal to that fair market value. (However, if the deceased’s spouse or common-law partner inherits the property, a tax-free rollover is available.)

As a result, there is normally no double taxation in respect of any accrued gains on the property. For example, if the estate sells the property, it will have a stepped-up tax cost so that there will be no further capital gain, except to the extent that the property has increased in value since the time of death.

However, a potential double tax problem can occur where the property is shares in a corporation, and where the corporation’s cash or other assets are subsequently distributed to the estate. In this case, there may a deemed capital gain for the deceased, and a subsequent deemed dividend for the estate.

Fortunately, there are some ways to avoid this double tax problem.

First, there is a rule in the Income Tax Act that allows an estate’s capital losses in its first taxation year to be carried back to the deceased’s final taxation year. Those capital losses can be used to offset the deceased’s capital gains at death that arose under the deemed disposition rule.

Example 1

X died, owning all the shares in a corporation “Xco”. X’s adjusted cost base of the shares was $1,000, the paid-up capital of the shares was $1,000, and their fair market value at the time of death was $500,000. (The paid-up capital of the shares, which involves a fairly technical calculation, generally reflects the after-tax capital that was originally used to acquire the shares.)

X will have a deemed disposition of the shares for proceeds of $500,000, which will result in a capital gain of $499,000 ($500,000 proceeds minus the $1,000 adjusted cost base). One-half of that gain will be included in X’s income as a taxable capital gain. The capital gains exemption does not apply.

In the estate’s first taxation year, Xco distributes $500,000 to the estate upon the redemption of the shares. The estate will have a deemed dividend of $499,000 ($500,000 minus the $1,000 paid-up capital of the shares). However, under the share redemption rules in the Income Tax Act, the estate will have a corresponding capital loss of $499,000, which can be carried back to X’s final year to offset the capital gain in the year of death.

Result: The estate is taxed on the deemed dividend of $499,000, but X has a net capital gain of zero so that there is no double taxation.

Although this strategy is normally effective, it comes with at least a couple of potential issues.

First, if the deemed dividend is sufficiently large, as in the above example, the tax on the dividend for the estate will normally be greater than the tax on the deemed capital gain at death that would otherwise be payable for the deceased. If so, although double taxation is avoided, the procedure comes with some additional tax cost.

Second, if Xco has assets with accrued gains, and those assets are distributed to the estate as part of the dividend, Xco may be subject to tax on those accrued gains. As well, the estate will be subject to tax on the dividend. Although there is a mechanism that may reduce Xco’s tax when it pays the deemed dividend (using a corporation’s so-called the corporation’s “refundable dividend tax on hand”), the mechanism does not always completely alleviate the potential double tax problem.

If the foregoing issues are problematic, a “pipeline” and / or “bump-up” strategy can be employed.

Under the pipeline strategy, the estate incorporates a new corporation (“Newco”) and transfers the Xco shares to Newco on a tax-free basis, assuming the value of the Xco shares has not increased since the death. But even if the Xco shares have increased in value, a tax-free transfer can be implemented using a “section 85 election”. The estate would receive at least one share in Newco and a promissory note reflecting the value of the shares.

Next, there are a couple of options.

First, to the extent Xco’s assets have a high tax cost (or are cash), it can distribute those assets to Newco as a tax-free inter-corporate dividend. Since the assets have a high tax cost (little accrued capital gain), Xco should pay little or no tax on the payment of the dividend. Newco will then use the assets to pay off the promissory note to the estate, which should result in no further tax.

Example 2 (regular pipeline)

Assume the same facts as Example 1. The assets in Xco have a high tax cost and/or consist of cash. The estate incorporates Newco and transfers its shares in Xco to Newco, taking back consideration consisting of one common share and a promissory note for $500,000.

Xco distributes its assets, including the cash, to Newco as a tax-free inter-corporate dividend. Newco pays off the $500,000 promissory note by distributing the assets to the estate. Little or no further tax should be payable. The only significant tax that may be payable by X, the deceased, is in respect of the capital gains resulting in the year of death.

Alternatively, if the assets in Xco have a low tax cost relative to their fair market value, and therefore have significant accrued gains, Xco could be wound up into Newco or amalgamated with Newco. This can be done on a tax-free basis. Furthermore, under a special rule in the Income Tax Act, the tax cost of Xco’s non-depreciable properties can often be “bumped up” to their fair market value (this is a very general description, as there are various technical issues to be considered). Then, when the properties are distributed to the estate for the payment of the promissory note, Newco should incur little or no tax. The estate also should incur no tax on that payment. Unfortunately, the bump-up does not apply to depreciable properties, so that if their fair market value exceeds their tax cost, there may be some tax payable on their distribution.

Example 3 (pipeline with bump-up)

Assume the same facts as in Example 1, except in this case the non-depreciable assets in Xco have a low tax cost and therefore have accrued gains. As with Example 2, the estate incorporates Newco and transfers its shares in Xco to Newco, taking back consideration consisting of one common share and a promissory note for $500,000.

After some time, Xco is wound up into, or amalgamated with, Newco. Under the special rule discussed above, the tax costs of the assets of Xco will normally be bumped up to their fair market value (although there may be some limitations). Then, Newco pays off the $500,000 promissory note by distributing the assets to the estate. As with Example 2, little or no further tax should be payable.

The Potential Problem

The potential problem involves subsection 84(2) of the Income Tax Act, which may apply to pipeline strategies. Under this provision, where funds or property of a corporation have been distributed to or for the benefit of a shareholder of the corporation on the winding up, discontinuance, or reorganization of its business, there is a deemed dividend for the shareholder, generally equal to the value of the funds or property in excess of the amount that the paid-up capital of the shares is reduced on the distribution. If the provision applies, the estate in the pipeline examples might be subject to tax on a deemed dividend.

The Canada Revenue Agency (CRA) has issued favourable rulings or opinions on pipeline transactions, but they generally require at least a 12-month wait period before the funds or assets are distributed to the estate. The CRA has stated:

“…in the context of certain post-mortem pipeline strategies, some of the additional facts and circumstances that in our view could lead to the application of subsection 84(2) and warrant dividend treatment could include the following elements:

The funds or property of the original corporation [Xco in the above examples] would be distributed to the estate in a short time frame following the death of the testator.

The nature of the underlying assets of the original corporation would be cash and the original corporation would have no activities or business (“cash corporation”).

Where such circumstances exist, resulting in the application of subsection 84(2) and dividend treatment on the distribution to the estate, we believe that double taxation at the shareholder level could still be mitigated with the implementation of the subsection 164(6) capital loss carryback strategy [that used in Example 1 above], provided the conditions of the provision would apply in the particular facts and circumstance.

Accordingly, in cases where we have issued favourable rulings [on pipelines strategies], the particular taxpayer’s facts and proposed transactions, amongst other things, did not involve a cash corporation and contemplated a continuation of the particular business for a period of at least one year following which a progressive distribution of the corporation’s assets would occur over a period of time. Consequently, one or more of the conditions in subsection 84(2) were not met.”

Although the CRA’s views are not binding law, it is usually prudent to follow their guidelines to avoid potential assessments and tax litigation.

TUITION TAX CREDIT

The federal tuition tax credit equals 15% of eligible tuition fees payable in respect of a taxation year. It applies to tuition payable by students to most universities and colleges in Canada, as well as to other educational institutions providing courses at a post-secondary school level.

Included in the tuition credit amount are mandatory ancillary fees, such as for lab work, materials or computer services. For fees that are not mandatory, up to $250 qualifies if the student chooses to pay the fees.

The credit is also available for students who are developing or improving skills in an occupation and the educational institution (other than at a university level) has been certified as providing such skills by the Minister of Employment and Social Development Canada. The CRA takes the position that the phrase “to improve the student’s skills in an occupation” means that the student already possesses sufficient skills to enable the student to work at an occupation and the course or program must be capable of improving those skills. An occupation is considered “a profession, vocation, trade, or other particular employment.”

Each province has a corresponding tuition credit, which varies depending on the province.

Students may claim the federal credit for tuition paid to universities outside of Canada. Generally, the credit is available only if the student is enrolled full-time in a program leading to a degree and the course is at least three weeks in length. The CRA provides the following guidelines in terms of what constitutes a university outside of Canada:

“We will accept that an educational institution is a university outside Canada for purposes of the tuition credit if it meets all of the following conditions:

it has the authority to confer academic degrees of at least the bachelor level (bachelor’s degree or equivalent) according to the education standards of the country it is located in
it has an academic entrance requirement of at least secondary school matriculation standing
it is organized for teaching, study and research in the higher branches of learning.”

For universities in Commonwealth countries, the CRA will also accept an eligible educational institution “that is part of the Association of Commonwealth Canada if the institution can grant degrees of at least the bachelor level.” For institutions in the United States, the CRA will accept “an accredited degree-granting institution currently recognized by the Institute of Education Sciences National Center for Education Statistics or Council for Higher Education Accreditation (CHEA) in a university outside Canada, provided that the institution can grant degrees of at least the bachelor level.”

A list of foreign qualifying universities can be found on the CRA website at Recognized universities and higher educational institutions outside Canada – Canada.ca.

In addition, if the student lives near the Canada-United States border, tuition fees paid to an educational institution in the United States that is a university, college or other educational institution providing courses at a post-secondary school are eligible regardless of whether the courses lead to a degree.

In terms of filing requirements, the student must fill out and file Schedule 11 with their tax return. They also must receive a form from the educational institution: Form T2202 from an institution in Canada, Form TL11A from a foreign institution, or Form TL11C for students commuting to attend an institution in the United States.

The credit is often claimed by the student. However, if the student has no remaining tax payable in the taxation year, the student can transfer up to $5,000 of the tuition to their parent, grandparent, spouse or common-law partner, who can then claim the credit on that amount on their tax return.

Alternatively, the student can choose to carry forward the credit indefinitely to a future taxation year, where the student can claim the credit in that future year.

The credit cannot be carried forward to a future year to transfer to one of the individuals described above. In other words, the tuition in a taxation year can only be transferred in that year.

Example

Student has $9,000 tuition payable for year 1. Student has some tax payable (before the tuition tax credit) but uses $3,000 of the tuition for the credit in year 1 to reduce their tax to zero.

The remaining $6,000 can be carried forward for Student. Alternatively, up to $5,000 can be transferred to one of the above individuals in year 1, and any remaining amount can be carried forward to future years for Student.

CARRYOVER OF TAX LOSSES

Under the Income Tax Act, if you have a net loss for the year rather than positive net income, you might not have any other income against which to use that loss in that year. Fortunately, there are “carryover” provisions that allow you to carry the loss back or forward to other taxation years.

Non-capital losses

If you have a loss from employment, a business or property in a taxation year, the losses will reduce your other sources of income in the same year. However, your overall net income cannot be negative. Therefore, your losses from these sources in excess of your positive income from all sources cannot be used in that year. Such losses are called “non-capital losses”.

Non-capital losses can be carried back 3 years or forward 20 years, to offset all other sources of income for those years. If you carry back the losses, there is a special form T1A that is filed to amend the previous tax year’s tax return.

Net capital losses

One-half of your capital losses are called “allowable capital losses” (ACL) and one-half of your capital gains are “taxable capital gains” (TCG). ACLs in a taxation year reduce your TCGs for the year, but only down to zero net TCGs. Any excess ACLs cannot reduce other sources of income in that year.

The excess ACLs for the year, called “net capital losses”, can be carried back 3 years or forward indefinitely, to offset TCGs in those other years. Unfortunately, they normally cannot offset other sources of income. One exception is described immediately below.

Allowable business investment loss (“ABIL”)

An ABIL is a type of allowable capital loss that arises on the disposition of shares or debt in a small business corporation. (Various conditions apply.) Unlike regular ACLs, an ABIL can reduce all sources of income, not just TCGs.

Unused ABILs in a year can be carried back 3 years or forward 10 years to offset all sources of income in those years. After the 10-year carry-forward period, unused ABILs convert to regular ACLs and therefore can only offset TCGs in years beyond that.

Listed personal property losses

There is a general rule that says capital losses from the disposition of personal-use property are deemed to be nil and are therefore not recognized for income tax purposes.

However, if the loss is from the disposition of a “listed personal property” (LPP), the loss can offset gains from disposition of LPP in the same year. If there is a net gain, one-half is a TCG included in income in that year. If there is a net loss, the excess loss can be carried back 3 years or forward 7 years to offset gains from LPP in those years (but not gains from other properties).

LPP includes works of art; rare books, folios, and manuscripts; jewelry; stamps; and coins.

DEDUCTING INTEREST EXPENSE

Direct use rule

If you borrow money, the interest you pay on the loan is normally deductible if the money is used for the purpose of earning income from a business or property. Income from business is fairly self-explanatory. Income from property includes dividends, rent, and interest income.

Income from property does not include capital gains. However, if you borrow to buy investments like common shares or equity mutual funds for capital gain purposes and they are capable of paying dividends or other income from property, you can normally still get a full interest deduction.

If you borrow money that is used for personal purposes, the interest is not deductible. For example, if you have a mortgage on your home, the interest on the mortgage is typically not deductible (although a portion may be deductible if you carry on business through a home office – see our June 2020 Tax Letter for details).

In terms of the “use of borrowed money” requirement, the courts have indicated that a direct use of the borrowed money is required, and that an indirect use does not normally qualify. The distinction between a direct and indirect use is shown in the following example.

Example

You have $500,000 in cash to invest. You are considering buying a house but also want to buy some stocks and mutual funds. You need to borrow money to accomplish both types of purchases.

If you borrow to buy the house, the direct use of the loan is not for the purpose of earning income (again, subject to the comment above where you use part of the home in your business). You cannot argue that the loan allowed you to acquire the stocks and mutual funds by freeing up your $500,000 cash to purchase them. Therefore, the interest on the house loan is not deductible because the direct use is to purchase the house, even though the borrowing indirectly allowed you to buy the stocks and mutual funds.

However, if you take out a loan to buy the stocks and mutual funds, the direct use of the borrowing is for the purpose of earning income. You can then use your $500,000 cash to buy the house. In this case, the interest on the loan would be fully deductible.

A tax planning tip is sometimes called the “interest deduction shuffle”, since it involves using borrowed money directly to buy income investments, while the borrowing indirectly allows you to purchase a personal use property like your home. Some refer to this as the “Singleton shuffle”, after the landmark Supreme Court of Canada decision that gave this type of transaction its blessing.

In Singleton, the taxpayer was a partner at a law firm. He had about $300,000 of capital (cash) invested in the firm. He wanted to buy a home, but he knew if he took out a loan to buy the home, the interest on the loan would not be deductible. Therefore, he withdrew his capital from the law firm to buy the home, and on the same day borrowed $300,000 from a bank to replenish his capital account at the firm. Since the direct use of that borrowing was to invest in his law firm, which was for the purpose of earning income from a business, the Supreme Court held that the interest on his loan was fully deductible.

And obviously, the Canada Revenue Agency (CRA) must respect decisions of the Supreme Court of Canada.

So let’s look at the Singleton shuffle applied to a variation of the above example.

Example

You currently own stocks and mutual funds worth $500,000. You want to buy a house and would need to take a $500,000 mortgage loan to buy it. If you do, the interest on the loan will not be deductible.

Instead, you sell the stocks and mutual funds for $500,000 and use those proceeds to buy the home. Then, you borrow $500,000 from a bank – secured by a mortgage on your home − to repurchase the stocks and mutual funds (or any other income-earning investments). Now, the direct use of your borrowing is an income-earning purpose, and the interest on the borrowing is fully deductible.

From the bank’s point of view, the $500,000 loan to you is just as secure as if it were a mortgage taken out to buy the home, since it’s done as a mortgage.

This transaction works best if the stocks and mutual funds have little or no accrued capital gain, since any accrued taxable capital gain will be triggered when you sell the funds.

Loans for RRSPs and TFSAs

If you take out a loan to invest in your registered retirement savings account (RRSP) or tax-free saving account (TFSA), you seem to be using the loan to invest and earn income from property. So, based on the above rule, you might think you can deduct the interest on the loan.

Unfortunately, there is a specific provision in the Income Tax Act that overrides the above rule and disallows any interest deduction on loans to invest in RRSPs and TFSAs (as well as other tax-deferred plans, like registered pension plans, registered education savings plans and registered disability saving plans).

The rationale for disallowing the interest deduction on these loans is that even though the money is typically used for the purpose of earning income from property, the income earned while in the RRSP or TFSA is not subject to tax (for a TFSA it is also not taxed when you take the money out). Basically, the government is saying that since we are not taxing the income while it’s earned, we are not going to allow you to deduct your interest expense in the meantime.

What happens if you sell the investment at a loss and still owe money?

A potential problem arises if you sell an investment property acquired with a loan, and you subsequently sell the property at a loss. In such case, you might not be able to fully repay the loan. So if some of the loan remains outstanding, can you still deduct the interest expense on the loan? You might think “no”, since you are no longer using the loan for income-earning purposes.

Fortunately, the answer is usually “yes”.

There is a specific provision under the Income Tax Act that basically says that the amount of your loan in excess of the proceeds of disposition of the property (at a loss) is deemed to be used for the purpose of earning income from a property. Therefore, an interest deduction will remain for that portion of the loan. The following is an example.

Example

You took out a $100,000 loan to buy stocks. Unfortunately, the stocks went down significantly in value, and you decided to sell them when they were worth $40,000.

You use the $40,000 to partially pay off the loan, and therefore you still owe $60,000. Under the specific provision, your interest on the remaining $60,000 principal amount of the loan will remain deductible, even though you no longer own the stocks.

A similar provision applies if you take out a loan that is used in your business, you later cease to carry on the business, and the value of your business properties is less than the principal amount of the loan still outstanding. In general terms, a portion of the loan is allocated to any property that you sell (and for this purpose, there is a deemed disposition once you begin to use the property for any other purpose). The remaining part of the principal amount of the loan, if any, is deemed to be used for the purpose of earning income from a business and the interest expense on that part remains deductible.

SPOUSAL AND CHILD SUPPORT PAYMENTS

We discussed this issue briefly in the March 2021 Tax Letter (under “Ten Most Common Tax Mistakes”). More details are provided here.

In general terms, child support payments made to an ex-spouse or common-law partner are not deductible for the payer, and are not included in the recipient’s income. An exception applies if the applicable court order or agreement was made before May 1997, it was not amended or replaced by another order agreement after April 1997, and the parties did not elect to have the current rules apply. (This almost never happens now, since most child support stops around age 18.) In these rare cases, the payer can deduct the child support payment and the recipient must include them in income.

On the other hand, spousal support payments are generally deductible for the payer and included in the recipient’s income, as long as certain conditions are met. If the conditions are not met, there is no deduction and no inclusion.

The general conditions include the following:

1) The spousal support payment must be a payment made as an “allowance on a periodic basis”. So normally, a lump-sum or amount that is not periodic does not qualify (some exceptions are noted below). The courts have held that the following factors are relevant in determining the periodic allowance issue:

The length of the periods in which the payments are made. Amounts that are paid weekly or monthly are more easily characterized as allowances. Where the payments are at longer intervals, the issue is less clear. If the payments are made at intervals of greater than one year, the CRA and ultimately a court may rule that they are not periodic allowances.
The amount of the payments in relation to the income and living standards of payer and recipient. Where a payment represents a substantial portion of the payer’s or recipient’s income, the payment is unlikely to be a periodic allowance. On the other hand, where the payment is no greater than might be expected to be required to maintain the recipient’s standard of living, it is more likely to qualify as an allowance.
If the payments include interest up to the date of the payments, a court may rule that this is essentially a lump-sum amount that the payer was allowed to pay over time, rather than a periodic allowance.
A periodic allowance commonly applies either for an indefinite period or until some event such as the re-marriage of the recipient, or some other event that causes a material change in the recipient’s financial needs. Sums payable over a fixed term may be regarded as not being a periodic allowance and therefore not deductible for the payer or included for the recipient.
If the payments release the payer from future obligations to pay support (for example, upfront payments for a few years rather than over many years), the payments may be viewed as not being periodic allowances.

2) The recipient must have discretion over the use of the payment, meaning that the recipient, rather than the payer, determines what to do with the funds. So if the payer sends the funds with a condition that they be used in a specific manner, the payment may not qualify (an exception to this rule is discussed below).

3) The recipient and payer must be living separate and apart because of the breakdown of their marriage or common-law partnership.

4) The payment must be pursuant to a court order or a written agreement between the parties.

Exception to the general rules

There is a specific provision that overrides the general rules that a spousal support payment must be on a periodic basis and that the recipient must have discretion over the use of the funds.

A lump-sum payment can be deductible for the payer and included for the recipient, even though it is not periodic, the recipient does not have discretion over the use of the funds, and even if the payment is made to a third party instead of directly to the recipient. This specific provision applies only if the court order or agreement states that the parties agree that the provision will apply. The provision can apply to expenses such as medical expenses, tuition, rent, and mortgage payments made by the payer to the recipient or to a third party (for example, a medical facility, school, landlord, or bank). In the case of mortgage payments (principal and interest) made for the recipient’s home, the deduction in each year is generally limited to 1/5th of the principal amount of the original mortgage loan.

In addition to this special rule, the CRA takes the view that a lump-sum payment is deductible for the payer and included for the recipient if the lump-sum:

represents amounts payable periodically that were due after the court order or written agreement and that had fallen into arrears; or
is paid pursuant to a court order and in conjunction with an existing obligation for periodic maintenance, whereby the payment represents the acceleration, or advance, of future support payable on a periodic basis, for the sole purpose of securing the funds to the recipient, or
is paid pursuant to a court order that establishes a clear obligation to pay retroactive periodic maintenance for a specified period prior to the date of the court order

Payments made before court order or agreement

To be deductible, a spousal support payment must be made “pursuant to” a court order or written agreement between the parties. As a result, payments made before the court order is issued or before the agreement is signed would normally not be deductible for the payer or included for the recipient.

However, another provision in the Income Tax Act says that payments made before the court order or written agreement can be deductible for the payer and included for the recipient, if the court order or agreement states that this provision applies. However, this applies only to payments made in the same calendar year as the order or agreement, or the immediately preceding calendar year.

Ordering rule with spousal and child support

If both spousal support and child support are paid each year on a timely basis, this ordering rule is of little significance. However, if the payments are not made in full in any year, this rule applies. In general terms, the support payments will be applied towards (non-deductible) child support until it is paid in full, before they are applied towards (deductible) spousal support.

Example

Ahmed is required under a court order or written agreement to pay $60,000 in annual child support and $40,000 in spousal support, for a total of $100,000. In 2021, because of cash flow issues, he pays total support of only $80,000.

Under the ordering rule, the first $60,000 of the $80,000 paid in 2021 will be considered child support and therefore not deductible in computing his income. The remaining $20,000 will be considered spousal support and deductible.

In 2022, Ahmed has better cash flow and therefore pays a total of $120,000 – being the $100,000 of total support owed in 2022 plus the $20,000 shortfall in 2021. Therefore, in 2022 he can deduct $60,000, which is the $20,000 shortfall from 2021 plus the $40,000 spousal support for 2022.

His ex-spouse has to include in income the same amounts that are deductible to him.

Around the courts

Foreign source tax deductions do not reduce Canadian tax instalment requirements

In the recent Bhachu case, the taxpayer was a resident of Canada who worked for a petroleum company in Egypt in the taxation year at issue. As a Canadian resident, he was liable to pay income tax on his worldwide employment income. He was also liable to pay tax to the government of Egypt for his employment income earned in Egypt.

The taxpayer was assessed by the CRA and charged interest for not making tax instalments in Canada. Generally, an individual must pay quarterly instalments in a taxation year if their non-withheld tax for the year and one of the two preceding years exceeds $3,000.

In the year in question, the Egyptian company withheld tax for Egyptian tax purposes but not for Canadian tax purposes, such that it seemed that Mr. Bhachu was liable to pay instalments in Canada. He did not, which is why the CRA charged instalment interest.

The taxpayer appealed the CRA assessment. The taxpayer argued that the withheld tax for Egyptian tax purposes should have relieved him from paying Canadian instalments. The Tax Court judge disagreed, and held that there the Canadian tax rules do not take into account foreign withholding taxes in determining whether instalments are to be made in Canada.

Upon further appeal to the Federal Court of Appeal, that Court agreed with the Tax Court judge and dismissed the taxpayer’s appeal. The taxpayer had also argued that a provision in the Canada-Egypt income tax treaty absolved him from being required to pay the Canadian instalments. The Federal Court rejected this argument as being a misinterpretation of the Treaty provision.

ADHD qualified for disability tax credit

The disability tax credit, as the name implies, is available to individuals who are physically or mentally disabled. However, the legal requirements to claim the credit are quite detailed and complex.

Among other requirements, the individual must have one or “more severe and prolonged impairments in physical or mental functions”. These impairments must result in the individual’s ability to perform a basic activity of daily living being “markedly restricted”. The individual must also receive a prescribed form from a medical practitioner certifying that the disability requirements have been met.

If the disabled individual has little or no income and therefore cannot use the credit, they can transfer the credit to a supporting individual, like a parent or spouse.

In the recent Jungen case, the taxpayer’s son was diagnosed with attention deficit hyperactivity disorder (ADHD) in the taxation years in question, when the son was between nine and fifteen years old. Apparently, the ADHD resulted in extremely anti-social and disruptive behaviour to others, including friends, teachers, and his sister. The taxpayer testified that even with her son’s medication for the disorder, she needed to tend to him at least 90% of the time (when he was not in school or otherwise occupied with structured activities).

The son did not have enough tax payable to use the disability tax credit, so he transferred the credit to his mother, the taxpayer, who attempted to claim it. The taxpayer filed the prescribed form from her son’s pediatric physician, who certified that he met the conditions required for the disability credit.

The CRA denied the taxpayer’s claim. Although the CRA agreed that her son had significant and challenging issues, it held that they did not “markedly restrict” his basic activities of living. This was the sole issue before the Tax Court of Canada, which heard the taxpayer’s appeal of the CRA assessment.

The Tax Court held in favour of the taxpayer by accepting the “markedly restricted” requirement. Based on the evidence, the Tax Court held that during the relevant period the son “had substantial impairment of ability to engage in appropriate social interactions with other persons with whom he comes into contact.”

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This letter summarizes recent tax developments and tax planning opportunities; however, we recommend that you consult with an expert before embarking on any of the suggestions contained in this letter, which are appropriate to your own specific requirements.