Income Tax Act

Marginal note:Capital gains refund to mutual fund trust

• 132 (1) Where a trust was, throughout a taxation year, a mutual fund trust and a return of its income for the year has been made within 3 years from the end of the year, the Minister

  • (a) may, on sending the notice of assessment for the year, refund an amount (in this subsection referred to as its “capital gains refund” for the year) equal to the lesser of

    • (i) the total of

      • (A) 14.5% of the total of the trust’s capital gains redemptions for the year, and

      • (B) the amount, if any, that the Minister determines to be reasonable in the circumstances, after giving consideration to the percentages applicable in determining the trust’s capital gains refunds for the year and preceding taxation years and the percentages applicable in determining the trust’s refundable capital gains tax on hand at the end of the year, and

    • (ii) the trust’s refundable capital gains tax on hand at the end of the year; and

  • (b) shall, with all due dispatch, make that capital gains refund after mailing the notice of assessment if an application for it has been made in writing by the trust within the period within which the Minister would be allowed under subsection 152(4) to assess tax payable under this Part by the trust for the year if that subsection were read without reference to paragraph 152(4)(a).

• Marginal note:Application to other liability

  (2) Instead of making a refund that might otherwise be made under subsection 132(1) the Minister may, where the trust is liable or about to become liable to make any payment under this Act, apply the amount that would otherwise be refunded to that other liability and notify the trust of that action.

• Marginal note:Interest on capital gains refund

  (2.1) If a capital gains refund for a taxation year is paid to, or applied to a liability of, a mutual fund trust, the Minister shall pay or apply interest on the refund at the prescribed rate for the period beginning on the day that is 30 days after the later of

  • (a) the day that is 90 days after the end of the year, and

  • (b) the day on which the trust’s return of income under this Part for the year was filed under section 150

  and ending on the day on which the refund is paid or applied.

• Marginal note:Excess interest on capital gains refund

  (2.2) Where at any particular time interest has been paid to, or applied to a liability of, a trust under subsection 132(2.1) in respect of a capital gains refund and it is determined at a subsequent time that the capital gains refund was less than that in respect of which interest was so paid or applied,

  • (a) the amount by which the interest that was so paid or applied exceeds the interest, if any, computed in respect of the amount that is determined at the subsequent time to be the capital gains refund shall be deemed to be an amount (in this subsection referred to as the “amount payable”) that became payable under this Part by the trust at the particular time;

  • (b) the trust shall pay to the Receiver General interest at the prescribed rate on the amount payable, computed from the particular time to the day of payment; and

  • (c) the Minister may at any time assess the trust in respect of the amount payable and, where the Minister makes such an assessment, the provisions of Divisions I and J apply, with such modifications as the circumstances require, in respect of the assessment as though it had been made under section 152.

• Marginal note:Application of s. 104(20)

  (3) In its application in respect of a mutual fund trust, subsection 104(20) shall be read as if the reference therein to “a dividend (other than a taxable dividend)” were read as a reference to “a capital dividend”.

• Marginal note:Definitions

  (4) In this section,

  capital gains redemptions

  rachats au titre des gains en capital

  capital gains redemptions of a mutual fund trust for a taxation year means the amount determined by the formula

  (A/B × (C + D)) - E

  where

  A

  is the total of all amounts each of which is the portion of an amount paid by the trust in the year on the redemption of a unit in the trust that is included in the proceeds of disposition in respect of that redemption,

  B

  is the total of the fair market value at the end of the year of all the issued units of the trust and the amount determined for A in respect of the trust for the year,

  C

  is 100/14.5 of the trust’s refundable capital gains tax on hand at the end of the year,

  D

  is the amount determined by the formula

  (K + L) - (M + N)

  where

  K

  is the amount of the fair market value at the end of the year of all the issued units of the trust,

  L

  is the total of all amounts each of which is the amount of any debt owing by the trust, or of any other obligation of the trust to pay an amount, that was outstanding at that time,

  M

  is the total of the cost amounts to the trust at that time of all its properties, and

  N

  is the amount of any money of the trust on hand at that time, and

  E

  is twice the total of all amounts each of which is an amount designated under subsection 104(21) for the year by the trust in respect of a unit of the trust redeemed by the trust at any time in the year and after December 21, 2000;

  refundable capital gains tax on hand

  impôt en main remboursable au titre des gains en capital

  refundable capital gains tax on hand of a mutual fund trust at the end of a taxation year means the amount determined by the formula

  (A - B)

  where

  A

  is the total of all amounts each of which is an amount in respect of that or any previous taxation year throughout which the trust was a mutual fund trust, equal to the least of

  • (a) 29% of its taxable income for the year,

  • (b) 29% of its taxed capital gains for the year, and

  • (c) where the taxation year ended after May 6, 1974, the tax payable under this Part by it for the year, and

  B

  is the total of all amounts each of which is an amount in respect of any previous taxation year throughout which the trust was a mutual fund trust, equal to its capital gains refund for the year.

• Definition of taxed capital gains

  (5) In subsection 132(4), taxed capital gains of a taxpayer for a taxation year has the meaning assigned by subsection 130(3).

• Meaning of mutual fund trust

  (6) Subject to subsection 132(7), for the purposes of this section, a trust is a mutual fund trust at any time if at that time

  • (a) it was a unit trust resident in Canada,

  • (b) its only undertaking was

    • (i) the investing of its funds in property (other than real property or an interest in real property),

    • (ii) the acquiring, holding, maintaining, improving, leasing or managing of any real property (or interest in real property) that is capital property of the trust, or

    • (iii) any combination of the activities described in subparagraphs 132(6)(b)(i) and 132(6)(b)(ii), and

  • (c) it complied with prescribed conditions relating to the number of its unit holders, dispersal of ownership of its units and public trading of its units.

• Marginal note:Election to be mutual fund

  (6.1) Where a trust becomes a mutual fund trust at any particular time before the 91st day after the end of its first taxation year, and the trust so elects in its return of income for that year, the trust is deemed to have been a mutual fund trust from the beginning of that year until the particular time.

• Marginal note:Retention of status as mutual fund trust

  (6.2) A trust is deemed to be a mutual fund trust throughout a calendar year where

  • (a) at any time in the year, the trust would, if this section were read without reference to this subsection, have ceased to be a mutual fund trust

    • (i) because the condition described in paragraph 108(2)(a) ceased to be satisfied,

    • (ii) because of the application of paragraph (6)(c), or

    • (iii) because the trust ceased to exist;

  • (b) the trust was a mutual fund trust at the beginning of the year; and

  • (c) the trust would, throughout the portion of the year throughout which it was in existence, have been a mutual fund trust if

    • (i) in the case where the condition described in paragraph 108(2)(a) was satisfied at any time in the year, that condition were satisfied throughout the year,

    • (ii) subsection (6) were read without reference to paragraph (c) of that subsection, and

    • (iii) this section were read without reference to this subsection.

• Marginal note:Idem

  (7) Where, at any time, it can reasonably be considered that a trust, having regard to all the circumstances, including the terms and conditions of the units of the trust, was established or is maintained primarily for the benefit of non-resident persons, the trust shall be deemed not to be a mutual fund trust after that time unless

  • (a) throughout the period that began on the later of February 21, 1990 and the day of its creation and ended at that time, all or substantially all of its property consisted of property other than property that would be taxable Canadian property if the definition taxable Canadian property in subsection 248(1) were read without reference to paragraph (b) of that definition; or

  • (b) it has not issued any unit (other than a unit issued to a person as a payment, or in satisfaction of the person’s right to enforce payment, of an amount out of the trust’s income determined before the application of subsection 104(6), or out of the trust’s capital gains) of the trust after February 20, 1990 and before that time to a person who, after reasonable inquiry, it had reason to believe was non-resident, except where the unit was issued to that person under an agreement in writing entered into before February 21, 1990.