A private trust is often set up with two goals at once: keep control and flexibility over the assets, and move the income out of the settlor’s own tax bracket. The Income Tax Act is built specifically to stop those two goals being achieved together.
- Section 61 - revocable transfers. Where a transfer is revocable, all income arising from the transferred asset is clubbed back into the settlor’s hands and taxed at the settlor’s rate. The trust exists, and may serve real succession purposes, but fiscally the income never left.
- Section 64 - transfers for a spouse’s benefit. The same clubbing logic reaches transfers made for the benefit of a spouse, closing the most obvious way around Section 61.
- Section 164 - discretionary trusts. Where the beneficiaries’ shares are indeterminate, the trust’s income is generally taxed at the maximum marginal rate - the highest outcome available, not a concessional one.
Only an Irrevocable Specific Trust Moves the Income
What is left is a narrow path. Only an irrevocable specific trust - one the settlor genuinely cannot unwind, with beneficiaries and their shares determinate - allows income to be taxed in the beneficiaries’ own hands at their own slab rates. The tax outcome improves exactly in proportion to how much control the settlor gives up, and not otherwise.
Control and Tax Efficiency Are the Same Dial
This is worth stating plainly because trusts are frequently discussed as though flexibility and tax efficiency were separable features to be selected independently. They are the same dial. A structure that keeps the settlor able to pull assets back is, by that fact alone, one the Act treats as still theirs - which is the correct result if the point of the trust is succession planning, and a wasted exercise if the point was the tax rate.
Decide which goal the trust is actually for before drafting it. If the purpose is succession, revocability is the right choice and the clubbing is simply the price. If the purpose was the tax rate, a structure the settlor can unwind achieves nothing at all.
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