Tuesday, October 29, 2013

Canadian Bar Association National Wills, Estates and Trusts Section

I attended the National Wills, Estates and Trusts Section of the Canadian Bar Association executive meeting in Ottawa last Saturday, October 26, 2013.

The meeting consists of the Officers (I’m Treasurer this year), an Executive Member and the chairs of provincial Wills, Estates and Trusts sections from across Canada, as well as CBA staff.

Our section is active in professional education programs for lawyers; we publish a newsletter with articles of national interest, called The Last Word, and we also produce Succession Law Tables of Concordance. The latter is a table with comparisons of law and procedure among all of the Provinces and Territories, and is available to Canadian Bar Association members and subscribers through Carswell.

More importantly for the public, we are active in legislation and law reform. I will mention three matters we have been involved in during the last couple of years.

We have made submissions to the Tax Policy Branch, Finance Canada, suggesting changes to the Income Tax Act to facilitate charitable giving. As set out in our letter of May 2, 2012,

We are writing to propose six technical amendments to the Income Tax Act (ITA) to make the tax treatment of charitable giving more flexible, and relieve donors from a number of technical obstacles to tax-effective charitable giving. Sophisticated tax advice is required for prospective donors to overcome these obstacles, without which tax-driven conditions result that do not necessarily reflect the donor’s charitable intention. The proposed amendments are not intended to result in additional tax benefits for charitable giving, but rather make the existing rules and tax benefits of charitable giving more equitable, intuitive, accessible and rewarding.

The letter contains six very specific proposed technical changes to deal with the problems our members and their clients have encountered in estate-planned charitable giving.

Our Section has also written to Canada Revenue Agency about concerns that Canada Revenue Agency is on occasion inappropriately refusing to issue a final clearance certificate to an executor or other personal representative unless the personal representative has remitted from the estate Canada Pension Plan deductions from the personal representative’s remuneration. Clearance certificates are important because they protect personal representatives for claims for unpaid taxes by the deceased after the personal representative has distributed the estate. This practice by Canada Revenue Agency of requiring remittance of Canada Pension Plan deductions appears to be based on a misconception of the law, and creates unnecessary administrative costs and delays in distributing estates. You can read our letter here.

Thirdly, we are working on submissions to the Tax Policy Branch, Department of Finance in response to the Government’s invitation to respond to proposals to tax income earned and retained in testamentary trusts at the highest marginal tax rate, instead of the current graduated rates. I have written about the Government's proposed changes and my personal views of them in this blog here and reported on the opportunity to make submissions here.

We have not yet completed the draft submissions, but I hope to provide a link to our proposals once they are completed and published on the Canadian Bar Association website.

No comments: