A testator created a trust for the benefit of his mentally incapacitated son, with the trustees accorded the discretion to distribute income and encroach on capital. At the time of the beneficiary’s death, the trust holds a sum which it would be reasonable to consider had not become payable or been distributed out of the taxable income of the trust for a previous taxation year. If the balance of the taxable income of the trust for a taxation year prior to the year of death is paid to the estate of the disabled beneficiary in the year of his decease (as permitted under the trust deed), would s. 122(1)(c) apply to retroactively impose tax at the high marginal rate? CRA responded:
[P]aragraph 122(1)(c) applies since none of the beneficiaries under the trust at the end of the year of death was an electing beneficiary of the trust for a preceding taxation year, as required under paragraph 122(2)(a). Furthermore, a recovery tax is payable by the trust in the year of the death of the disabled beneficiary since the entire taxable income of the trust for the taxation years during which it was a QDT was not paid or distributed to an electing beneficiary.