In a recent Alberta case (Muth Estate, 2019 ABQB 922), the Court found that an Executor could not legally require beneficiaries to indemnify the Executor for the payment of taxes owed by the Estate.
The deceased died in 2008. His ex-wife (Ms. Muth) and a set of nieces and nephews first went to Court to determine how the Estate should be administered and distributed. They ultimately reached a mediated settlement in 2011 where it was agreed that Ms. Muth would apply for probate as the Executor and the Estate would be divided 55% to Ms. Muth and 45% to the nieces and nephews. Ms. Muth’s first accountant advised her to holdback $25,000 for taxes. She did so and distributed the balance of the Estate in accordance with the settlement. This first accountant did not file the required tax return. A second accountant was retained and advised that the holdback was insufficient. Ms. Muth paid the difference as well as other related expenses. She then sought indemnity from the nieces and nephews for 45% of these amounts. The Court ultimately found that she, as the Executor, was not entitled to be indemnified by the beneficiaries because her failure to obtain a final Clearance Certificate prior to distributing the property meant that she was personally liable for the taxes and related expenses.
This case serves as a good reminder that Executors can be found personally liable for unpaid taxes, interest and penalties of an Estate if he or she distributes the property of the Estate before obtaining a final Clearance Certificate.
Applying for a Clearance Certificate
An Executor may apply to the Canada Revenue Agency (CRA) for a final Clearance Certificate. The final Clearance Certificate confirms that all of the taxes, interest and penalties owed by the Estate have been paid. Section 159(2) of the Income Tax Act requires an Executor (legal representative of the Estate) to obtain a final Clearance Certificate and section 159(3) holds the Executor personally liable for taxes, interest and penalties owed by the Estate if he or she distributes property prior to obtaining such certificate.
Prior to applying for a final Clearance Certificate, the Executor must12
- File the final tax return;
- Receive the corresponding Notice of Assessment or Reassessment; and
- Pay all taxes, interest and penalties owed by the Estate based on the final tax return and/or Notice of Reassessment.
Only after all of these steps have been completed can the Executor apply for a final Clearance Certificate.
According to the CRA’s website, a final Clearance Certificate can take up to 120 days to obtain. However, in practice, the wait time can be up to a year or a year and a half.
When is a Clearance Certificate Not Needed?
First, a final Clearance Certificate is not needed if the Estate (or trust) continues to exist to pay income to beneficiaries. To be clear, there may be taxes owed, filing requirements and accounting obligations for the continuing Estate or trust, but the final Clearance Certificate is not required to pay income to beneficiaries from an ongoing trust.
Second, a final Clearance Certificate is not needed if there is no tax liability. But, there is no guarantee that there is no tax liability without a final Clearance Certificate confirming it. On the other hand, there can be circumstances where it is very likely there is no tax liability, such as an Estate with no capital property and no income (e.g. only asset is a non-interest-bearing cash account). In those circumstances, the Executor must balance the risks of not obtaining a final Clearance Certificate against the likelihood that no taxes, interest and penalties are owed.
Third, a final Clearance Certificate is not needed if there is a sufficient holdback for taxes, interest and penalties. However, as seen in Muth, there is a risk that the holdback will be insufficient.
Conclusion
Overall, an Executor of an Estate should ensure that all obligations owed to the CRA by the Estate (and all other liabilities) are satisfied prior to distributing the property of the Estate. A final Clearance Certificate is a confirmation of satisfaction. Failure to obtain a final Clearance Certificate exposes the Executor to personal liability if the property of the Estate has already been distributed.
The process to apply and obtain a final Clearance Certificate can be quite lengthy (i.e. prepare and file tax return, prepare application for certificate, wait for certificate, etc.). Therefore, it is recommended that the Executor communicate the lengthy process to the beneficiaries so that they understand why it may take a year or more before they receive their distributions. Navigating through the process of administering an Estate can be confusing, especially when taxes are involved. As such, it is also recommended that the Executor consider if or when a lawyer and/or an accountant conversant in estate matters should be brought in to provide assistance.
If you have further questions about the administration of an Estate or other tax issues, please contact any member of our Wills and Estates or Tax practice groups.
Footnotes
1 Information Circular IC82-6R11 (Canada Revenue Agency, 2016) at para 11
2 If the Estate creates a trust and the property is held in trust prior to distribution to beneficiaries, then there are additional steps that must be completed prior to applying for a Clearance Certificate. These additional steps are found at Information Circular IC82-6R11 (Canada Revenue Agency, 2016) paras 11 - 13
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
