Principal Issues: [TaxInterpretations translation]
The transitional rules relating to the definition of “common-law partner” added to subsection 248(1) in June 2000 provide that an election may be made by eligible persons to have this definition apply to them retroactively from 1998. Can the election be made where one of those persons has died?
Position:
Yes.
Reasons:
The term “person” to which the rules refer is defined in subsection 248(1) and includes, among others, heirs, executors, administrators or other legal representatives of a person.
November 3, 2000
Chicoutimi Tax Services Office Headquarters Patrick Massicotte Client Services (613) 957-9232
Attention: Ms. Christiane Deschênes 2000-004912
Request for technical interpretation:
Subsection 248(1) of the Income Tax Act
This is in response to your fax received on September 27, 2000, requesting our opinion on the definition of “common-law partner” in subsection 248(1) of the Income Tax Act (the “Act”).
FACTS
You described the situation of a taxpayer who, in 2000, had been living with another person of the same sex for more than three years and who died during the year.
QUESTION
You wish to know whether the taxpayer can file an election to benefit from the new rules for same-sex common-law spouses retroactive to 1998 even though the other person has died.
OUR COMMENTS
When “An Act to modernize the Statutes of Canada in relation to benefits and obligations'' (Bill C-23) received Royal Assent on June 29, 2000, sections 130 to 146 added the definition of “common-law partner” to subsection 248(1) of the Act. Generally speaking, that expression is defined to include any person living in a conjugal relationship with a taxpayer, including persons of the same sex, effective from the 2001 taxation year.
Sections 144 to 146 of the Act provide transitional rules for the application of this new definition. Section 144 of the Act reads as follows:
“Where a taxpayer and a person who would have been the taxpayer's common-law partner in the 1998, 1999 or 2000 taxation year, if sections 130 to 142 applied to the applicable year, jointly elect in respect of that year by notifying the Minister of National Revenue in prescribed manner on or before their filing due date for the year in which this Act receives royal assent, those sections apply to the taxpayer and the person in respect of the applicable taxation year and subsequent taxation years.”
The election referred to in those provisions must be filed jointly by the two persons who may be considered common-law partners under the new definition in subsection 248(1).
The word “person”, as used in that section, must be interpreted pursuant to the definition in subsection 248(1). That definition provides that “person” includes the heirs, executors, administrators or other legal representatives of a person.
Since the election must be filed jointly by the taxpayer and the person who would have been the common-law spouse for the years concerned if the new definition had applied, it follows that an election filed by a deceased person's legal representative could be considered filed by the deceased “person”.
Consequently, these provisions support the position that a deceased person may, through legal representatives or heirs, file an election jointly with a taxpayer so that the new common-law partner provisions apply to them as of the taxation year in which they could be considered common-law partners, as defined in subsection 248(1).
For your information, a copy of this memorandum will be severed using the Access to Information Act and will be available in the Legislative Access Database (LAD) located on the mainframe of the Canada Customs and Revenue Agency. A severed copy will also be distributed to the commercial tax publishers for inclusion in their databases. The severing process will remove all material that is not subject to disclosure, including information that could disclose the identity of the taxpayer. Should your client request a copy of this memorandum, the Legislative Access Bank version can be provided. Alternatively, the client may request a severed copy using the Privacy Act criteria, which does not remove client identity. Requests for this latter version should be made by you to Ms. Jackie Page at (613) 957-0682. A copy that has been severed in accordance with the Privacy Act will be sent to you for delivery to the client.
We hope you find these comments helpful. Should you require any additional information regarding this matter, please do not hesitate to contact us.
Best regards,
Ghislaine Landry, CGA
Acting Manager
Business and Individuals Section
Business and Publications Division
Income Tax Rulings Directorate
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