On the death of a non-resident individual, who had been filing T1 returns pursuant to the s. 216 rules regarding a Canadian rental property, that property was acquired by her non-resident estate at FMV, then was distributed to her two non-resident children (Y and Z - the residuary beneficiaries) as equal co-owners. CRA indicated that the non-resident estate can be a graduated rate estate (“GRE”) and the estate is not precluded from filing T3 returns pursuant to s. 216, stating:
A non-resident estate could be a GRE. Neither section 216 nor the definition of a GRE includes any language distinguishing a non-resident estate filing under Part I (T3 Return) on an elective basis pursuant to section 216 in respect of a Part XIII tax liability from a taxpayer who is required to file under Part I in respect of a Part I filing obligation. There is no provision in the Act prohibiting an estate filing under section 216 from qualifying as a GRE.
A non-resident estate could file its return of income under Part I pursuant to a section 216 election by the filing due date set out under section 216 and make the GRE designation in the return. While the Estate is a GRE, the Estate will be taxed at the graduated rates in respect of the net rental income.