Life interest trusts, such as alter ego trusts and joint spousal trusts, are deemed under s. 104(4)(a) to have a deemed year end on the date of the death of the last life interest beneficiary and to have disposed of certain property on the date of death. However, if there is a loss in the first taxation year after death, can this loss be reported on the tax return filed for the date of death, rather than there being a required filing of a T3A loss carryback request from the next taxation year?
CRA indicated that it will be necessary to file two returns and a loss-carryback request: the description of capital gains and capital loss in ss. 3 and 39(1) refer to the taxation year, so each provision will have to be applied to the specific taxation year such that the gain will be reported in the first year, and the loss in the second one.
However, s. 104(13.4)(c), which postpones the balance due date for the first deemed taxation year to 90 days after the end of that calendar year (or March 31, where the subsequent year is not a leap year) can provide relief. Suppose that a capital loss sustained in the second taxation year ending on December 31 equals or exceeds the capital gain realized in the first taxation year ending on, say, July 31. By filing the two tax returns, and the loss-carryback request before the balance due-date of March 31, once the first taxation year has been reassessed to recognize the loss for the second taxation year, the effect should be that no Part I tax is payable, and the Part I tax that was initially assessed on the first taxation year should be reversed. Accordingly, the interest appearing on the notice of assessment of the July 31 year will be reversed on the notice of reassessment of that year.