Regarding whether a late election under s. 104(4)(a)(ii.1) can be made, CRA indicated that the courts have held that, where an election that is required to be filed with return of income for the year is not filed with the return of income, the election is late, and that it will accept an election filed under s. 104(4)(a)(ii.1) only if it is made in the trust’s return of income filed for its first taxation year, regardless of whether the return is filed by the required filings deadlines specified in s. 150(1)(c) or filed late – and that where the election is not filed with the trust’s return of income for its first taxation year, but rather is filed later, that election would be late, and could not be accepted (being not an election prescribed under Reg. 600).
CRA went on to indicate that this election is unavailable to other trusts to which a s. 73(1) rollover would otherwise apply, such as a spouse or common-law partner trust, or a joint spouse or common-law partner trust (described in ss. 73(1.01)(c)(i), (c)(iii)(A) and (c)(iii)(B).)