ARTICLE
2 October 2020

Real Estate Double Tax Trap

GS
Goldman Sloan Nash & Haber LLP
Contributor
Goldman Sloan Nash & Haber LLP logo
For more than 40 years, Goldman Sloan Nash & Haber (GSNH) LLP has helped leading businesses, entrepreneurs and individuals successfully navigate the maze of corporate & commercial law to help protect and grow their businesses. Our mid-sized law firm is based in downtown Toronto and provides advice across all major practice 
Here is an interesting case study I wanted to share regarding potential tax issues during estate planning.
Canada Real Estate and Construction
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Here is an interesting case study I wanted to share regarding potential tax issues during estate planning.

Mr. A owned all of the shares of ACO prior to his death. ACO owned valuable real estate. Mr. A's will provided that his shares of ACO were to be held in a testamentary spouse trust which would benefit Mrs. A during her lifetime and their children after her death. The children were the trustees of the testamentary spouse trust.

The real estate appreciated in value before Mr. A's death. It appreciated even more between Mr. A's death and Mrs. A's death. On Mrs. A's death, the Income tax Act deems the testamentary spouse trust to dispose of the shares of ACO for proceeds of disposition equal to the fair market value of those shares immediately prior to her death. As the appreciation in the value of the real estate is reflected in the value of the ACO shares, the testamentary spouse trust is effectively taxed on the economic gain arising from the appreciation in the value of the real estate. However, the cost of the real estate to ACO for tax purposes remains unchanged. Accordingly, the same economic gain is taxed again when ACO sells the real estate.

There are tax planning steps which in some cases prevent the double taxation.  However, these are not available, with respect to the appreciation in the value of the real estate after Mr. A's death, when the children are the trustees of the testamentary spouse trust. It is preferable to avoid this double tax issue when drafting the will so that the children are not the trustees of the testamentary spouse trust. Fortunately, the problem can be dealt with if it is identified during the lifetime of Mrs. A. Unfortunately, the double tax problem cannot be fixed after the death of Mrs. A.

It is important to obtain the advice of a tax lawyer in relation to spouse trusts.

Originally published by GSNH, October 2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

ARTICLE
2 October 2020

Real Estate Double Tax Trap

Canada Real Estate and Construction
Contributor
Goldman Sloan Nash & Haber LLP logo
For more than 40 years, Goldman Sloan Nash & Haber (GSNH) LLP has helped leading businesses, entrepreneurs and individuals successfully navigate the maze of corporate & commercial law to help protect and grow their businesses. Our mid-sized law firm is based in downtown Toronto and provides advice across all major practice 
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