Deemed Trust

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A usufruct, a right of use or a substitution is considered to be a trust. If the usufruct, right of use or substitution was established by will, the trust is considered to be a testamentary trust, and the property subject to the usufruct, right of use or substitution is considered to have been transferred to the trust on the death of the testator and as a consequence thereof.

Furthermore, an arrangement under which property is subject to rights and obligations is considered to be a trust if the arrangement is established by or pursuant to a written contract in which the parties express their intention to consider the arrangement as a trust within the meaning of Part I of the Taxation Act.

A person who has a right, whether immediate or future and whether absolute or contingent, to receive all or part of the income or the capital from the property referred to above is the beneficiary of the trust in question.

Where a taxpayer makes a gift of a work of art or cultural property with reserve of usufruct or right of use to a qualified donee, the usufruct or right of use is not considered to be a trust where:

  • the gift was made during the donor's lifetime;
  • the gift is not a gift of immovable property;
  • the usufruct or right of use was established exclusively for the benefit of the donor; and
  • the donor was the sole owner of the property immediately before it was donated.

Such a gift may give rise to tax relief for the donor.

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