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THE TAXATION OF TRUSTS

November 9, 2012

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Our two hour Trust program will focus on existing/operating inter vivos trusts and will provide an overview of those critical tax issues that can affect the tax treatment of the trust and its beneficiaries. Areas of discussion will include: the creation of the trust and the possible application of S. 75 (2); trust recordkeeping including the maintenance of proper trustee resolutions; the status of the 21 year deemed disposition timing (we have seen a number of these missed); the application of the tax-deferred rollover rule under S. 107 (2); the status of the trustees and the provision for the replacement where capacity is an issue; the status of the appointor; the impact of a change of trustee on the control of a private corporation owned by the trust; the residence of the trust given the new case law establishing a central management and control test of residence, and a review of the potential income and capital beneficiaries of the trust and the distribution provisions of the trust indenture.

It is important not to wait until the 21st year anniversary of the trust in order to determine the plan for unwinding an inter vivos trust. Where the trust holds shares of a private company, consideration should be given to implementing a shareholders’ agreement in order that the mechanics for controlling the private company are understood by all the family members after there has been a trust distribution of shares of the family company.

We believe you will find this overview invaluable by putting you in a position to be proactive with your client and the eventual transition of the ownership of the family business from one generation to the next.

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