Tag: twenty one year rule 21 year rule
We previously blogged about the decision in Ozerdinc Family Trust v Gowling Lafleur Henderson LLP, 2017 ONSC 6, where a failure to advise of the deemed disposition date of trust assets resulted in an avoidable tax liability. Recently, additional reasons were released which set out the court’s decision with respect to costs arising from the motion for partial summary judgment. The court awarded costs to the successful plaintiffs in the amount of $160,889.76 (including tax) plus disbursements of $100,000.00
The costs decision is interesting as it thoroughly considers a number of elements of the litigation in relation to the factors listed in Rule 57.01 of the Rules of Civil Procedure.
Interestingly, while the court held that the matter was “obviously a very complex matter”, it nonetheless concluded that the costs claimed by the plaintiffs were higher than required for a motion of this nature. The court also noted, in considering the time spent by the plaintiffs on the motion for partial summary judgment, that the “total amount of time spent exceeds a fair amount and that which would reasonably be expected to be required in the circumstances”. This conclusion was made despite the court’s acknowledgment that the bulk of the plaintiff’s time was spent by junior counsel.
Another interesting comment was related to the costs awards with respect to disbursements. It seems that a large portion of the plaintiffs’ disbursements were expended to retain several experts. However, the court found that the amount claimed by the plaintiffs was out of proportion with the amounts spent by the defendants to address similar issues, and reduced the award for disbursements accordingly.
This decision may serve as a helpful reminder to litigators to be aware of the amount of their legal fees and disbursements. One should also try to ensure, as much as possible, that costs are proportional, both with respect to the size of the matter at issue, but also, based on this costs decision, with respect to the costs that may be incurred by the other parties.
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The recent Ontario Superior Court of Justice decision in Ozerdinc Family Trust provides a helpful reminder as to the steps lawyers should take when advising trustees of a Trust with respect to the twenty one year rule against perpetuities.
Under the provisions of the Income Tax Act, capital property is normally taxed upon its “disposition”. In the case of a Trust, according to section 104(4) of the Income Tax Act, there is a deemed disposition every twenty one years after the original settlement of the Trust as long as the Trust holds property that is subject to the rule.
Such property includes: shares of a qualified small business corporation, qualified farm property, and qualified fishing property; marketable securities (including mutual funds and portfolio investments); real and depreciable property; personal-use and listed-personal properties; Canadian and foreign resource properties; and, land held as inventory. At the same time, certain types of capital property are exempt or excluded from the operation of the rule depending on such factors as residency or the nature of the trust.
In order to avoid and/or mitigate any taxes owing as a result of the deemed disposition, there are numerous planning options available to trustees including changing the residency of the trust, or entering into a corporate freeze. Trustees may also simply decide to do nothing.
Therefore, at a minimum, trustees must consider the date of the impending deemed disposition, as well as available tax planning measures to avoid/mitigate any taxes resulting from the deemed disposition. An obligation to advise trustees of these issues often falls on the professional who assisted with the settling of a Trust.
In Ozerdinc Family Trust, Justice Marc R. Labrosse found that the defendant law firm was negligent in failing to advise the trustees of the impending deemed disposition date, as well as the available tax planning measures available to them. Although the facts in this case are nothing novel, it nonetheless acts as a helpful reminder as to the steps lawyers should take when advising trustees of a Trust.
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