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 s. 107(2) could apply to the distribution of the rental property to the non-resident beneficiaries, stating:
Assuming the distribution of the rental property to Y and Z is made out of the residue of the Estate and transferred to Y and Z in accordance with the provisions of the Will in satisfaction of all or any part of their interests in the capital of the Estate, then subsection 107(2) could apply to allow a tax-deferred rollover on the distribution of the rental properties to Y and Z.
Real or immovable property situated in Canada is a property described in subparagraph 128.1(4)(b)(i). Therefore, subsection 107(5) should not apply to deny the tax-deferred rollover of the rental property to Y and Z and the rental property may be distributed under subsection 107(2) provided the requirements of subsection 107(2) are otherwise satisfied.