Whose Income Is It?

• Author: Vern Krishna
• Profession: Professor of Common Law, University of Ottawa Barrister at Law
• Pages: 107-117

107

CHAPTER 5

WHOSE INCOME IS IT?

A. gENERAL COMMENT

Thus far, we have looked at who is taxable and, in a preliminar y way, at

what is the nature of income. However, the individual in receipt of in-

come is not always the person tax able on it. In some cases, income may

be attributed to an individual who becomes taxable on it even though

she does not legally own the income.

Canada taxes each individual as a separate taxpayer. Unlike the

United States, Canada does not recognize joint tax returns. To prevent

income splitting between fami ly members, the Income Tax Act ha s strict

attribution and assignment rules for intra-family property transfers be-

tween spouses. The concept of spouse for tax purposes is broad and

includes common-law partners and same-sex married relationships.1

The attribution rules are essentially anti-avoidance rules, but with

numerous exceptions and carve-outs. Since the individual income tax

structure is progressive,2 income increments are taxable at higher mar-

ginal rates. This means that a single income family will pay higher

taxes than a two-income family with identical income. Thus, high-

income taxpayers have an incentive to reduce their taxes by shifting

income to members of their family in lower tax brackets and splitting

1 See Income Tax Act, RSC 1985, c 1 (5th Supp) [ITA], subs 248(1) “common-law

partner.”

2 See ibid, s 117.