When a personal trust with appreciated property is wound-up and a portion of the property is transferred to the capital beneficiary is settlement of a debt owing to him or her. Does the s. 107(2) rollover apply? After noting that Chan indicated that a distribution under s. 107(2) is an allotment made in accordance with the beneficiary's interest and not made for consideration, CRA stated:
Under the law of equity, fiduciary duties are imposed on a trustee and are enforceable by the beneficiaries of a trust. In our view, the settlement of the debt owing by the trust to the beneficiary would not constitute a distribution undertaken by the trustee under a fiduciary duty to a beneficiary qua beneficiary, but rather, the fulfilment of requirements imposed on a debtor.
It cannot be said that a transfer that settles a debt can also constitute a distribution for purposes of subsection 107(2) of the Act. …The settlement of the debt by the transfer of property to the creditor does not occur by virtue of rights of the holder of the interest as a beneficiary under the trust. It occurs by virtue of the rights held as a creditor.