Trust 1, a personal trust resident in Canada disposed of qualified small business corporation (QSBC) shares to an unrelated third party. The resulting capital gain was recognized only partly in the year of disposition due to the claiming of a reserve under s. 40(1)(a)(iii), with the balance being recognized in the following year under s. 40(1)(a)(iii). The taxable capital gains for both years were distributed and designated to two Canadian-resident personal trusts (Trust 2 and Trust 3) as beneficiaries. Such trusts, in turn and in the same year, distributed and designated those gains as well as other taxable capital gains to their individual beneficiaries.
The TSO considered that the beneficiaries of Trust 2 and Trust 3 were not entitled to the capital gains deduction under s. 110.6(2.1) based on 2016-0667361E5.
The Directorate found that (with the appropriate designations made at both trust levels under ss. 104(21) and (21.2)) the taxable capital gains would retain their character in the individuals’ hands as being from QSBC shares dispositions for s. 110.6(2.1) deduction purposes. This reversed 2016-0667361E5, which found that the eligibility of a gain for the capital gains deduction is lost when it is distributed by a lower-tier to upper-tier trust.