Income Tax Regulations

304 (1) For the purposes of this Part and subsections 12.2(1), (3) and (4) and paragraph 148(2)(b) of the Act, prescribed annuity contract for a taxation year means

• (a) an annuity contract purchased pursuant to a registered pension plan, a registered retirement savings plan, a deferred profit sharing plan or a plan referred to in subsection 147(15) of the Act as a revoked plan;

• (b) an annuity contract described in paragraph 148(1)(c) or (e) of the Act; and

• (c) an annuity contract

  • (i) under which annuity payments have commenced in the taxation year or a preceding taxation year,

  • (ii) issued by a corporation described in any of paragraphs 39(5)(b) to (d) or clause 146(1)(j)(ii)(B) of the Act, a life insurance corporation, a registered charity or a corporation (other than a mutual fund corporation or a mortgage investment corporation) the principal business of which is the making of loans (which corporation or charity is in this section referred to as an “issuer”),

  • (iii) each holder of which

    • (A) is an individual, other than a trust that is neither a testamentary trust nor a trust described in paragraph 104(4)(a) of the Act (in this paragraph referred to as a “specified trust”),

    • (B) is an annuitant under the contract, and

    • (C) throughout the taxation year, dealt at arm’s length with the issuer,

  • (iv) the terms and conditions of which require that, from the time the contract meets the requirements of this paragraph,

    • (A) all payments made out of the contract be equal annuity payments made at regular intervals but not less frequently than annually, subject to the holder’s right to vary the frequency and quantum of payments to be made out of the contract in any taxation year without altering the present value at the beginning of the year of the total payments to be made in that year out of the contract,

    • (B) the annuity payments thereunder continue for a fixed term or

      • (I) if the holder is an individual (other than a trust), for the life of the first holder or until the later of the death of the first holder and the death of any one of the spouse, common-law partner, former spouse, former common-law partner, brothers and sisters (in this subparagraph referred to as “the survivor”) of the first holder, or

      • (II) if the holder is a specified trust, for the life of the spouse or common-law partner who is entitled to receive the income of the trust,

    • (C) where the annuity payments are to be made over a term that is guaranteed or fixed, the guaranteed or fixed term not extend beyond the time at which

      • (I) in the case of a joint and last survivor annuity, the younger of the first holder and the survivor,

      • (II) if the holder is a specified trust, the spouse or common-law partner who is entitled to receive the income of the trust,

      • (III) if the holder is a testamentary trust other than a specified trust, the youngest beneficiary under the trust,

      • (IV) where the contract is held jointly, the younger of the first holders, or

      • (V) in any other case, the first holder,

      would, if he survived, attain the age of 91 years,

    • (D) no loans exist under the contract and the holder’s rights under the contract not be disposed of otherwise than on the holder’s death or, if the holder is a specified trust, on the death of the spouse or common-law partner who is entitled to receive the income of the trust, and

    • (E) no payments be made out of the contract other than as permitted by this section,

  • (v) none of the terms and conditions of which provide for any recourse against the issuer for failure to make any payment under the contract, and

  • (vi) where annuity payments under the contract have commenced

    • (A) before 1987, in respect of which a holder thereof has notified the issuer in writing, before the end of the taxation year, that the contract is to be treated as a prescribed annuity contract,

    • (B) after 1986, in respect of which a holder thereof has not notified the issuer in writing, before the end of the taxation year in which the annuity payments under the contract commenced, that the contract is not to be treated as a prescribed annuity contract, or

    • (C) after 1986, in respect of which a holder thereof has notified the issuer in writing, before the end of the taxation year in which the annuity payments under the contract commenced, that the contract is not to be treated as a prescribed annuity contract and a holder thereof has rescinded the notification by so notifying the issuer in writing before the end of the taxation year.

(2) Notwithstanding subsection (1), an annuity contract shall not fail to be a prescribed annuity contract by reason that

• (a) where the contract provides for a joint and last survivor annuity or is held jointly, the terms and conditions thereof provide that there will be a decrease in the amount of the annuity payments to be made under the contract from the time of death of one of the annuitants thereunder;

• (b) the terms and conditions thereof provide that where the holder thereof dies at or before the time he attains the age of 91 years, the contract will terminate and an amount will be paid out of the contract not exceeding the amount, if any, by which the total premiums paid under the contract exceeds the total annuity payments made under the contract;

• (c) where the annuity payments are to be made over a term that is guaranteed or fixed, the terms and conditions thereof provide that as a consequence of the death of the holder thereof during the guaranteed or fixed term any payments that, but for the death of the holder, would be made during the term may be commuted into a single payment; or

• (d) the terms and conditions thereof, as they read on December 1, 1982 and at all subsequent times, provide that the holder participates in the investment earnings of the issuer and that the amount of such participation is to be paid within 60 days after the end of the year in respect of which it is determined.

(3) For the purposes of this section, the annuitant under an annuity contract is deemed to be the holder of the contract where

• (a) the contract is held by another person in trust for the annuitant; or

• (b) the contract was acquired by the annuitant under a group term life insurance policy under which life insurance was effected on the life of another person in respect of, in the course of, or by virtue of the office or employment or former office or employment of that other person.

(4) In this section,

annuitant

annuitant under an annuity contract, at any time, means a person who, at that time, is entitled to receive annuity payments under the contract; (rentier)

spouse

spouse of a particular individual includes another individual of the opposite sex who is a party to a void or voidable marriage with the particular individual. (époux)