The Income Tax Act allows a taxpayer to contribute to their spouse's RRSP. What about a TFSA?
What the Law Says
For an investment account to qualify as for the tax exemption granted to a TFSA, the law requires that only the account holder can make contributions. Since this requirement would not be met, the account would lose its TFSA status and the income in it would subsequently become taxable. Such an event would also have further tax repercussions.
It is easy to see that tax policies behind this rule aim to counter this type of use of TFSA contribution room.
The Position of the Canada Revenue Agency
- Guide RC4466 i
The Canada Revenue Agency has stated the following in RC4466 Tax-Free Savings Account (TFSA), Guide for Individuals, when transactions involve a spouse:
"You can give your spouse or common-law partner money to contribute to their own TFSA without either that amount or any earnings on the amount being attributed back to you. The total of all contributions your spouse or common-law partner makes to their TFSA must not be more than their TFSA contribution room."
- Technical Interpretation
Last February 28, the Canada Revenue Agency (CRA) was asked about this. Specifically, the request for a technical interpretation looked at the following series of transactions, which seemed to pose a problemii:
- An individual makes a check, payable to a financial institution;
- The check was deposited in the TFSA of their spouse;
- The spouse is the TFSA holder.
In the technical interpretation, the Canada Revenue Agency specifies that, when a person makes a gift to a spouse and the spouse uses this gift to make a contribution to a TFSA of which they are the holder, the CRA is of the opinion that it is the TFSA holder who made the contribution. Thus, the guidance set out in the RC4466 is still relevant.
However, in the above scenario, the CRA has expressed doubts about the identity of the person who made the contribution. According to the CRA, the question of who made the contribution is a mix of facts and law. In the above scenario, it seems impossible to determine if the contribution had beengifted to the spousebeforehand. Ultimately, in the opinion of the CRA, such an arrangement could cause the account to lose its TFSA status, if it is not possible to determine that the funds were gifted to the spousebefore the contribution was made.
A gift is a voluntary transfer of property fromone person to another, free and without expectation or hope of material benefit in return. Thus, avoid a transfer of money to a spouse where a future repayment is expected because such a transaction would not be treated as a gift.
It is recommended to first transfer funds necessary for a contribution to the TFSA of a spouse to the bank account of the latter, so as to avoid any ambiguity as to the identity of the person making the contribution. Moreover, one should adequately document the gift. To find the ideal way to do so, please contact your legal advisor.
iYou can view the Guide at the following web address: http://www.cra-arc.gc.ca/E/pub/tg/rc4466/
iiCanada Revenue Agency, 2015-0569601E5 – Contribution to a TFSA, February 26 2015.
Since the levels and bases of taxation can change, any reference in this publication to the impact of taxation should not be construed as offering tax advice; as with any transaction having potential tax implications, clients should consult with their own tax advisors.