Subsection 107(2) of the Canadian Income Tax Act is the foundational statutory relief valve for discretionary family trusts. It permits trustees to distribute appreciated trust capital property—including private operating company shares and real estate—directly to capital beneficiaries on a tax-deferred rollover basis. By transferring the trust’s historical Adjusted Cost Base (ACB) to the beneficiary, Subsection 107(2) enables family trusts to wind down or distribute millions in wealth without triggering immediate capital gains tax.
When Canadian family trusts approach maturity, estate freezes unwind, or trustees seek to reorganize corporate groups, the distribution of trust assets is the critical pivot. While distributions of trust income are routinely processed on annual T3 slips, capital property distributions carry severe tax exposure if statutory rollover conditions are not met with forensic precision.
What Are the Mandatory Conditions for a Valid Subsection 107(2) Rollover?
If these criteria are satisfied, the tax consequences are statutory: the trust is deemed to have disposed of the property for proceeds equal to its ‘cost amount’ (ACB), resulting in exactly zero capital gain to the trust. Simultaneously, the receiving beneficiary is deemed to have acquired the property at that exact same cost amount, pushing any taxation into the future when the beneficiary chooses to sell.
| Distribution Parameter | Statutory Provision | Legal Impact on Trust | Tax Consequences to Beneficiary |
|---|---|---|---|
| Distribution to Resident Beneficiary | Subsection 107(2) | Zero Capital Gain Triggered | Inherits trust’s historical ACB; tax deferred until future sale. |
| Distribution to Non-Resident Beneficiary | Subsection 107(5) | Immediate Deemed Sale at FMV | Trust pays capital gains tax; Part XIII non-resident withholding. |
| Electing Out of Rollover | Subsection 107(2.001) | Deemed FMV Sale by Election | Beneficiary receives bumped FMV cost base (useful if trust has capital losses). |
| Corporate Attribution Rules | Section 74.4 / TOSI Rules | Audit of historic dividend allocations | Tax on Split Income (TOSI) applied if shares are non-voting growth shares. |
Why Does Subsection 107(5) Cause Severe Traps for Cross-Border Families?
When families operate with cross-border adult children, trustees must carefully review the deed’s discretionary powers. Trustees can exercise their discretion to distribute shares exclusively to Canadian-resident children, while compensating non-resident beneficiaries through cash, or by distributing shares into a Canadian-resident holding company owned by the beneficiary if properly structured under treaty safeguards.
“Always ensure the trustee minutes explicitly state that the distribution is made ‘in satisfaction of all or part of the beneficiary’s capital interest in the trust.’ Without formal legal documentation and valid share transfer certificates, the CRA can challenge whether a valid Subsection 107(2) distribution occurred, reclassifying the transfer as a taxable shareholder benefit.”
To master the mandatory holding company purification criteria that unlock the $1.25M Lifetime Capital Gains Exemption, read our guide on Purifying a CCPC in Canada: QSBC Shares & LCGE Guide.
