An individual makes an interest-free loan to a discretionary trust of which such individual is one of the beneficiaries. The trust uses the borrowed funds to subscribe for participating shares of a private corporation. Does s. 75(2) apply to income on the shares? CRA stated:
As confirmed … in Howson … subsection 75(2) does not apply to loans to trusts. However … this position applies only if the loan is independent of the terms of the trust. … The issue is … whether, legally, it is a loan rather than a contribution to the capital of the trust and whether the loan is independent of the terms of the trust.
Where a loan (independent of the terms of the trust) is made to a trust, the income from the property acquired with the borrowed amounts will not be subject to the subsection 75(2) deeming rule as long as the property acquired is not, in and of itself, property held under any of the conditions referred to in subsection 75(2).