DAVID WILKENFELD, CPA, CA, canadian tax CONSULTANT

What’s Your Tax Issue? – The Bare Trust

In Canadian Income Tax on May 11, 2010 at 12:35 pm

The Tax Issue:

I was the CEO of a corporation and transferred money from the corporation to my personal name with the board of directors permission to protect the cash assets from being sued by prominent shareholders.

An agreement by our corporation and the board of directors stipulated that any income or loss from stock trades that occurred in my name would belong to the corporation.

All monies were returned to the corporation after all lawsuits were dropped. However, the CRA wants to assess me for the transactions that occurred while the monies were in my name.

I dont know where to start to protect myself and it feels unethical that they have put me in a corner. Those monies belong to the corporation. How do I defend myself?

The Answer:

Much will depend on the documentation you have to support your assertion. If you have a proper agreement that constitutes a “bare trust”, then the CRA should accept that you were essentially an agent acting on behalf of the corporation.

A lot would also depend on the conduct of the parties involved during the period of time the monies were in your name. If the corporation reported all the income and transactions involving the portfolio for the years in question, then, again, this would support your position.

This is not a simple case, and as I have stated in the past, you have the burden to prove to the CRA that facts are as you state. I would strongly recommend that you seek the advice of a tax professional.

  1. There has been a test case on this in the past year. CRA lost, the trust stood the test of benefical ownership. For some reason despite years of common law on this type of transaction CRA has in the past 3-4 years tried to upset it.

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