2009 Ruling 2007-0251451R3 - Bituminous Sands Project

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CRA.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.

Principal Issues: (1) Whether bituminous sands projects described herein constitute one project and thus one mine. (2) Whether depreciable property to be used in the project is property described in Class 41.

Position: (1) Yes; (2) Yes

Reasons: We received an opinion from Natural Resources Canada that concluded that the projects described herein will each be one project. Based on this opinion, we are ruling that each project will be deemed to be one mine.

XXXXXXXXXX 									2007-025145 

XXXXXXXXXX , 2009

Dear XXXXXXXXXX :

Re: XXXXXXXXXX
Advance Income Tax Ruling

This is in reply to your letter of XXXXXXXXXX , wherein you requested an advance income tax ruling on behalf of the above-referenced parties. We also acknowledge your revised advance income tax ruling request dated XXXXXXXXXX , as well as our various telephone conversations.

Throughout this letter, certain parties will be referred to as follows:

XXXXXXXXXX PubCo
XXXXXXXXXX ParentCo
XXXXXXXXXX Corporation
XXXXXXXXXX SisterCo
XXXXXXXXXX SubCo
XXXXXXXXXX Partnership 1
XXXXXXXXXX Partnership 2

Each of the Corporation, SubCo, SisterCo, Partnership 1 and Partnership 2 file their corporate income tax returns or partnership information returns, as the case may be, at the XXXXXXXXXX Taxation Centre and their tax affairs are administered by the XXXXXXXXXX Tax Services Office.

To the best of your knowledge, and that of the Corporation, SisterCo, SubCo, Partnership 1 and Partnership 2 none of the issues in this ruling request is:

(i) involved in an earlier return of the Corporation, SisterCo, SubCo, Partnership 1, Partnership 2 or any related person;

(ii) being considered by a tax services office or taxation centre in connection with a previously filed tax return of the Corporation, SisterCo, SubCo or a related person;

(iii) under objection by the Corporation, SisterCo, SubCo or a related person;

(iv) before the courts; or

(v) the subject of a ruling previously issued by the Income Tax Rulings Directorate of the Canada Revenue Agency, to the Corporation, SisterCo, SubCo, Partnership 1, Partnership 2 or related persons.

Unless otherwise indicated, all references to monetary amounts are in Canadian dollars.

DEFINITIONS

In this letter, unless otherwise expressly stated, the following terms have the meanings specified:

"Act" means the Income Tax Act (Canada), R.S.C. 1985, c.1 (5th Supp.), as amended to the date hereof, and unless otherwise stated, every reference in this letter to a statutory provision is a reference to the relevant provision of the Act;

XXXXXXXXXX

"bituminous sands" has the meaning assigned by subsection 248(1) of the Act;

"bpd" means barrels of oil per day;

"Buildings" has the meaning assigned by Paragraph 21;

"Canadian partnership" has the meaning assigned by subsection 102(1) of the Act;

"Cleaning Facility" ("CF") means the facility for cleaning oil sands that is described in Paragraph 18(c);

"CF Expansion" has the meaning assigned by Paragraph 21;

"Expanded Project" means the Project including the Expansion Lands, further described in Paragraphs 9 & 12;

"Expansion Lands" has the meaning assigned by Paragraph 9;

"Expansion Wells" means all the wells for the extraction of bitumen from the Expansion Lands that are identified in XXXXXXXXXX ;

"Formation" has the meaning assigned by Paragraph 11;

"Leases" means oil sands leases included in the Project and the Expansion Lands granted by XXXXXXXXXX

"XXXXXXXXXX Group" means the XXXXXXXXXX

"multi-well pads" has the meaning assigned by Paragraph 18(a);

"Paragraph" refers to a numbered paragraph in this letter;

"Partners" means the partners in Partnership 1 or Partnership 2, as the case may be, and such other persons as may, from time to time, be admitted to either partnership, and their successors and assigns;

"principal-business corporation" has the meaning assigned by subsection 66(15) of the Act;

"Project" has the meaning assigned by Paragraph 7;

"public corporation" has the meaning assigned by subsection 89(1) of the Act;

"Regulations" refers to the Income Tax Regulations promulgated under the Act;

"Roads" has the meaning assigned by Paragraph 22; and

"taxable Canadian corporation" has the meaning assigned by subsection 89(1) of the Act.

Our understanding of the statements of facts, purposes of the proposed transactions and the proposed transactions is as follow:

FACTS

1. The Corporation is a public corporation and a taxable Canadian corporation incorporated under the Companies Act (XXXXXXXXXX ). The Corporation is an indirect wholly-owned subsidiary of ParentCo, a corporation incorporated under the laws of the Province of XXXXXXXXXX . ParentCo is an indirect wholly-owned subsidiary of PubCo, a corporation formed under the laws of XXXXXXXXXX . The shares of PubCo are listed on the XXXXXXXXXX Stock Exchange.

2. SisterCo is a wholly-owned subsidiary of the Corporation. SubCo, a corporation incorporated under the Companies Act (XXXXXXXXXX ), is a wholly-owned subsidiary of SisterCo. Each of the Corporation, SisterCo and SubCo are a principal-business corporation.

3. Partnership 1 is a Canadian partnership formed pursuant to the terms of a partnership agreement dated XXXXXXXXXX , between SubCo and the Corporation. On XXXXXXXXXX , the Partners and their respective ownership interests in Partnership 1 were as follows:

Corporation		XXXXXXXXXX %
SubCo			XXXXXXXXXX %

4. Partnership 2 is a Canadian partnership formed pursuant to the terms of a partnership agreement dated XXXXXXXXXX (as amended) between the Corporation and Partnership 1. Partnership 2 was formerly named XXXXXXXXXX prior to the acquisition of SisterCo by ParentCo. The partnership name was changed to XXXXXXXXXX on XXXXXXXXXX . Partnership 2 has a XXXXXXXXXX taxation year-end. The Partners and their respective ownership interests in Partnership 2 are as follows:

Corporation			XXXXXXXXXX %
Partnership 1		XXXXXXXXXX %

5. The head office and principal place of business for each of the Corporation, SisterCo, SubCo, Partnership 1 and Partnership 2 is located at XXXXXXXXXX

6. [Reserved].

The Project and the Expanded Project

7. In XXXXXXXXXX , the Corporation acquired legal ownership of Leases in respect of XXXXXXXXXX The wells and facilities contained in these sections of land constitute the Project that was approved as one project by XXXXXXXXXX (the "Project").

8. The Corporation holds legal title to XXXXXXXXXX % of the working interest in the oil sands rights from the XXXXXXXXXX Group included in the Project. Partnership 2 owns the beneficial interest in such oil sands rights. The Corporation is the managing partner of Partnership 2 and the operator of the Project.

9. In XXXXXXXXXX , SubCo acquired Leases in respect of approximately XXXXXXXXXX (the "Expansion Lands"). XXXXXXXXXX

10. SubCo owns XXXXXXXXXX % of the working interest in oil sands rights from the XXXXXXXXXX Group included on the Expansion Lands. SubCo is the operator of the Expansion Lands.

11. The Project operates under XXXXXXXXXX (the "Formation").

12. The Corporation applied to the XXXXXXXXXX on XXXXXXXXXX to expand the Project to include the Expansion Lands (the "Expanded Project"), which application was approved on XXXXXXXXXX .

13. In XXXXXXXXXX , production from the Project was approximately XXXXXXXXXX bpd from approximately XXXXXXXXXX producing wells. Presently, production from the Project is approximately XXXXXXXXXX bpd from approximately XXXXXXXXXX producing wells.

14. In XXXXXXXXXX , production from the Expansion Lands was approximately XXXXXXXXXX bpd. Presently, production from the Expansion Lands is approximately XXXXXXXXXX bpd. Target production by XXXXXXXXXX from proposed additional drilling on the Expansion Lands is approximately XXXXXXXXXX bpd.

15. XXXXXXXXXX

16. Detailed analysis of the data of physical properties of samples from each of the Project, Expansion Lands and Expanded Project showed that more than XXXXXXXXXX % of the samples satisfied the definition of "bituminous sands" under subsection 248(1). All or substantially all of the hydrocarbons recovered therefrom will meet the viscosity and density requirements outlined in the definition of bituminous sands, determined and tested in the manner referred to in subsection 1107(1) of the Regulations. Specifically, all or substantially all of the bitumen has a density less than XXXXXXXXXX degrees API and a viscosity greater than XXXXXXXXXX centipoise measured at atmospheric pressure, at a temperature of XXXXXXXXXX degrees Celsius and free of solution gas. Therefore, each deposit on the Project, the Expansion Lands and the Expanded Project, respectively, will be a deposit of bituminous sands.

17. The bituminous sands are buried more than XXXXXXXXXX meters below the surface and are not amenable to surface mining techniques. SubCo and Partnership 2 produce oil using the XXXXXXXXXX technique. XXXXXXXXXX

18. Production from the Expanded Project is highly integrated. The key components of the bitumen recovery process are as follows:

(a) Well Sites and Associated Facilities: The development is based on both single-well batteries and multi-well pads. Multi-well pads typically consist of one vertical well and 4 slant wells. However, depending on topography and reservoir characteristics, a multi-well pad could contain from 2 to 13 wells. Each multi-well pad and well site typically consists of the following:

(i) production wellheads;
(ii) wellhead collection piping;
(iii) production piping and manifold;
(iv) propane tanks;
(v) XXXXXXXXXX ;
(vi) engine and hydraulics shack;
(vii) production and sales tanks.

(b) Storage Facilities: The bitumen, sand and water emulsion produced from the Expanded Project is collected and held in heated storage tanks at the well site prior to being trucked to the Cleaning Facility for treating.

(c) Cleaning Facility ("CF"): The emulsion from the Expanded Project is delivered to, and treated at, a Cleaning Facility located on the Project lands at XXXXXXXXXX . Following a recent expansion, the CF has increased the licensed capacity from approximately XXXXXXXXXX bpd to XXXXXXXXXX bpd. The Corporation holds legal title to the CF and is the operator thereof. Beneficial ownership of the CF resides in Partnership 2.

The CF is comprised of the following components:

(i) Inlet emulsion handling: This process consists of truck dump pits where the emulsion is dumped into a trough. Liquid is moved via pumps to inlet surge tanks. From the inlet surge tanks, free water is pumped to produced-water disposal wells within the facility. The emulsion is then pumped to the Free Water Knockout ("FWKO") tanks.

(ii) Free water knockout ("FWKO") tanks: The FWKO tanks are used to reduce the Base, Sediment and Water content of the emulsion to about 2% or less. All treatment to this point has utilized gravity, demulsifier chemicals, and retention time.

(iii) Produced-water handling.

(iv) Flash treater: The emulsion is pumped from the FWKO tanks into the flash treater which operates at about 130 degrees C. All remaining water and light hydrocarbons are turned to vapour and flashed off at the top of the vessel. The vapour is then cooled back to liquid form. Water is pumped to the water disposal portion of the facility. Light hydrocarbons are pumped to a storage tank to be blended with heavy oil for sales or well servicing.

(v) Utilities: The utilities consist of electricity supplied by third parties, and natural gas supplied by third parties or by the casing gas gathering system described in Paragraph 18(d) below.

(vi) Glycol system: The glycol system consists of a glycol heater to heat glycol. Hot glycol is utilized for preheating the emulsion prior to the flash treater, as well as utility heaters throughout the facility. There is a separate cool glycol system used for the re-condensing of vapours from the flash treater.

(vii) Produced-water treatment: Produced-water from the Expanded Project is trucked to the water treatment facility, which is part of the CF. The produced-water is treated and then injected via pipeline into XXXXXXXXXX .

(viii) Water disposal wells: The water disposal wells are used to dispose of produced-water from the Expanded Project that cannot be re-used. Water disposal wells have been drilled, completed and tested within XXXXXXXXXX standards, and each well is equipped with a surface-installed turbine meter, flow choke and pressure recorder.

(ix) Produced-sand: Produced-sand from the Expanded Project is trucked to the CF. It is de-watered and temporarily stored in an approved ecology pit at the CF, and from there it is transported by truck to a land fill.

(x) Storage tanks: Cleaned bitumen from the Expanded Project will be held in storage tanks until it can be blended with condensate and shipped by third party-owned pipeline. XXXXXXXXXX

(d) Fuel Gas System: Each Lease included in the Expanded Project attempts to supply itself with fuel gas. Excess gas volumes that are sufficient to meet tie-in requirements are tied into either:

(i) the XXXXXXXXXX fuel gas system, which distributes fuel gas to other leases in the Expanded Project or to the CF;

(ii) the XXXXXXXXXX sales gas gathering system, which processes and sells gas from the Expanded Project through the XXXXXXXXXX gas plant; or

(iii) the XXXXXXXXXX gas system and the XXXXXXXXXX gas plant, in respect of casing gas.

Other Leases and Approvals

19. In addition to housing the Project, Partnership 2 also houses other minor leases in the area surrounding the Expanded Project. The minor leases are XXXXXXXXXX (the "Other Leases"). The Other Leases represent mature properties whose production has diminished over time.

20. On XXXXXXXXXX , the Corporation, on behalf of SubCo, applied for a further expansion of XXXXXXXXXX . Amendment XXXXXXXXXX to XXXXXXXXXX relates to additional wells on the Expansion Lands and was approved on XXXXXXXXXX ("Amendment XXXXXXXXXX "). It is anticipated that the lands and assets included in Amendment XXXXXXXXXX will be transferred to Partnership 2 at the same time as the Expansion Wells. However, the lands and assets included in Amendment XXXXXXXXXX will not form part of the Proposed Transactions described below.

Expansion of the CF

21. In order to accommodate the increasing production from the Expanded Project, the Corporation applied to the XXXXXXXXXX to request approval for further expansion of the CF (the "CF Expansion"). The application was approved on XXXXXXXXXX in Amendment XXXXXXXXXX to XXXXXXXXXX . The CF Expansion, completed in XXXXXXXXXX , is located on the Project lands directly XXXXXXXXXX of the existing CF site. The CF Expansion is a modular type of plant that includes several buildings to house the facilities (the "Buildings"). The combined capacity of the CF and the CF Expansion is XXXXXXXXXX bpd. The Corporation holds legal title to the CF Expansion, and Partnership 2 will be the beneficial owner and operator of the CF Expansion.

22. Roads have been constructed to include a XXXXXXXXXX (the "Roads").

23. The CF Expansion is substantially similar to the CF described in Paragraph 18(c) above in both its component parts and in its functioning. The major components consist of emulsion truck unloading facilities, emulsion treating, associated utilities, water treating and disposal, and various storage tanks on both the inlet and outlet of the CF Expansion. A permanent landfill is being constructed to dispose of the produced-sand.

24. Construction of the CF Expansion, including the Buildings and the Roads, was completed in XXXXXXXXXX .

PROPOSED TRANSACTIONS

25. On or around XXXXXXXXXX , SubCo proposes to transfer the Expansion Wells and the Leases forming part of the Expansion Lands (the "Property") to Partnership 2 as follows:

(a) SubCo will transfer the Property to Partnership 1 in consideration for an additional partnership interest in Partnership 1. SubCo in its capacity as transferor and SubCo and the Corporation as partners of the transferee, will jointly elect, in prescribed form and within the time referred to in subsection 96(4), to have subsection 97(2) apply to the transfer.

The agreed amount in the joint election will not be less than the least of the minimum elected amounts specified for the particular type of property in the relevant portions of subsection 85(1) and, in any event, the agreed amount will not exceed the fair market value of the property transferred, nor will it be less than the amount permitted under paragraph 85(1)(b).

(b) Partnership 1 will transfer the Property to Partnership 2 in consideration for an additional partnership interest in Partnership 2. SubCo, on behalf of all members of Partnership 1 (the transferor), and the Corporation, on behalf of all members of Partnership 2 (the transferee) will jointly elect, in prescribed form and within the time referred to in subsection 96(4), to have subsection 97(2) apply to the transfer.

The agreed amount in the joint election will not be less than the least of the minimum elected amounts specified for the particular type of property in the relevant portions of subsection 85(1) and, in any event, the agreed amount will not exceed the fair market value of the property transferred, nor will it be less than the amount permitted under paragraph 85(1)(b).

(c) the Corporation will make a cash contribution to Partnership 2 in an amount equal to approximately XXXXXXXXXX % of the fair market value of the assets transferred by SubCo to Partnership 2 (through Partnership 1). The cash contribution to be made by the Corporation will be treated as an addition to the adjusted cost base of the Corporation's interest in Partnership 2 pursuant to subparagraph 53(1)(e)(iv) of the Act, and will be made to maintain its existing interest in Partnership 2.

PURPOSE OF THE PROPOSED TRANSACTONS

26. The purpose of the proposed transactions is to pursue the Corporation's strategy of increasing production of bitumen based on the assumption that bitumen will represent the fuel source of the future, replacing conventional oil as a feedstock source in XXXXXXXXXX .

27. The Corporation, SisterCo, SubCo, Partnership 1 and Partnership 2 propose to achieve aggregate target production of approximately XXXXXXXXXX bpd from the Expansion Lands by drilling approximately XXXXXXXXXX additional wells thereon by XXXXXXXXXX .

RULINGS GIVEN

Provided that the preceding statements constitute a complete and accurate disclosure of all of the relevant facts, proposed transactions and purpose of the proposed transactions, and provided that the proposed transactions are completed in the manner described above, our rulings are as follows:

A. Prior to the transfers described in Paragraph 25 above, for the purposes of paragraph 1100(1)(y), subsections 1101(4c) and 1102(8) and (9), and section 1107 of the Regulations and Class 41 of Schedule II, all the wells of the Project for the extraction of material from the deposit of bituminous sands in the Project that produce up to approximately XXXXXXXXXX bpd of bitumen, constitute one project and are deemed to be one mine of Partnership 2 pursuant to paragraph 1104(7)(c) of the Regulations.

B. Prior to the transfers described in Paragraph 25 above, depreciable property of Partnership 2 acquired XXXXXXXXXX , that,

(i) but for Class 41, would be included in Class 10 because of paragraphs (g), (k) or (l) of Class 10; or

(ii) that is included in Class 41 because of subsection 1102(8) or (9) of the Regulations provided no election is filed to include the particular property in Class 43.1 or 43.2,
will be property described in paragraph (a) or (a.1) of Class 41 (as the case may be), provided that

(iii) the property was acquired by Partnership 2 in a taxation year principally for the purpose of gaining or producing income from the mine referred to in Ruling A operated by Partnership 2;

(iv) the property had not, before it was acquired by Partnership 2, been used for any purpose whatsoever by any person with whom Partnership 2 was not dealing at arm's length;

(v) in the case where paragraph (a) of Class 41 is applicable,

(A) the mine referred to in Ruling A comes into production in reasonable commercial quantities, and

(B) the property is acquired before the mine referred to in Ruling A comes into production, within the meaning of subsection 1104(8.1) of the Regulations; and

(vi) in the case where paragraph (a.1) of Class 41 is applicable, all the other requirements of paragraph (a.1) of Class 41, as may be applicable to Partnership 2 that are not specifically referenced in this ruling have been met.

C. Prior to the transfers described in Paragraph 25 above, for the purposes of paragraph 1100(1)(y), subsections 1101(4c) and 1102(8) and (9), and section 1107 of the Regulations and Class 41 of Schedule II, all the Expansion Wells for the extraction of material from the deposit of bituminous sands on the Expansion Lands that produce up to approximately XXXXXXXXXX bpd of bitumen, constitute one project and are deemed to be one mine of SubCo pursuant to paragraph 1104(7)(c) of the Regulations.

D. Prior to the transfers described in Paragraph 25 above, depreciable property of SubCo acquired XXXXXXXXXX , that,

(i) but for Class 41, would be included in Class 10 because of paragraphs (g), (k) or (l) of Class 10; or

(ii) that is included in Class 41 because of subsection 1102(8) or (9) of the Regulations provided no election is filed to include the particular property in Class 43.1 or 43.2,
will be property described in paragraph (a) or (a.1) of Class 41 (as the case may be), provided that

(iii) the property was acquired by SubCo in a taxation year principally for the purpose of gaining or producing income from the mine referred to in Ruling C operated by SubCo;

(iv) the property had not, before it was acquired by SubCo, been used for any purpose whatsoever by any person with whom SubCo was not dealing at arm's length;

(v) in the case where paragraph (a) of Class 41 is applicable,

(A) the mine referred to in Ruling C comes into production in reasonable commercial quantities, and

(B) the property is acquired before the mine referred to in Ruling C comes into production, within the meaning of subsection 1104(8.1) of the Regulations; and

(vi) in the case where paragraph (a.1) of Class 41 is applicable, all the other requirements of paragraph (a.1) of Class 41, as may be applicable to SubCo that are not specifically referenced in this ruling have been met.

E. Following the transfers described in Paragraph 25 above, for the purposes of paragraph 1100(1)(y), subsections 1101(4c) and 1102(8) and (9), and section 1107 of the Regulations and for Class 41 of Schedule II, all the wells of the Expanded Project for the extraction of material from the deposit of bituminous sands in the Expanded Project that produce up to XXXXXXXXXX bpd of bitumen will constitute one project and will deemed to be one mine of Partnership 2 pursuant to paragraph 1104(7)(c) of the Regulations.

F. Following the transfers described in Paragraph 25 above, for the purposes of Clause (C) of paragraph (a.2) of Class 41, the mine referred to in Ruling C will constitute an expansion of the Project that has increased the greatest design capacity of the Project measured in volume of oil that is not beyond the crude oil stage or its equivalent by not less than 25% greater than the greatest design capacity of the Project immediately before the expansion.

G. Following the transfers described in Paragraph 25 above, depreciable property acquired by Partnership 2 that

(a) but for Class 41, would be included in Class 10 because of paragraphs (g), (k) or (l) of Class 10; or

(b) that is included in Class 41 because of subsection 1102(8) or (9) of the Regulations provided no election is filed to include the particular property in Class 43.1 or 43.2;

will be property described in paragraph (a.2) of Class 41, provided that

(c) the property was acquired by Partnership 2 in a taxation year principally for the purpose of gaining or producing income from the mine referred to in Ruling E (the "Mine") operated by Partnership 2;

(d) the Mine was the subject of a major expansion as described in Ruling F;

(e) the property was acquired by Partnership 2

(i) after March 6, 1996,

(ii) before the completion of the expansion, and

(iii) in the course of and principally for the purposes of the expansion;

and

(f) the property had not, before it was acquired by Partnership 2, been used for any purpose by any person or partnership with whom Partnership 2 was not dealing at arm's length.

The above rulings are given subject to the limitations and qualifications set out in Information Circular 70-6R5 dated May 17, 2002 and are binding on the Canada Revenue Agency provided that the proposed transactions are completed by XXXXXXXXXX .

The above rulings are based on the law as it presently reads and do not take into account any proposed amendments to the Act which, if enacted, could have an effect on the rulings provided herein.

COMMENTS

Except as expressly stated, our rulings do not imply acceptance, approval or confirmation of any income tax implications of the facts or proposed transaction. In particular, nothing in this letter should be interpreted as confirming, either expressly or implicitly:

(a) that any specific property, such as any particular pipeline or flowline, may be included in paragraphs (a), (a.1) or (a.2) of Class 41 for the purposes of Rulings above;

(b) the determination of the fair market value or capital cost of any property referred to in this letter;

(c) whether any depreciable property acquired XXXXXXXXXX , relating to the CF and CF Expansion will meet the requirements of paragraphs (a), (a.1) or (a.2) of Class 41. In this regard we note that paragraphs (a), (a.1) and (a.2) of Class 41 require that the particular property be acquired principally for the purpose of gaining or producing income from one or more mines. Moreover, the phrase "income from a mine" is defined under subsection 1104(5) of the Regulations and contains certain requirements that have to be met on an annual basis;

(d) that any proposed expansion of the Project, Expansion Lands or Expanded Project, as the case may be, to increase the capacity of the facilities beyond XXXXXXXXXX barrels per day or any additional phase of the Project, Expansion Lands or Expanded Project, as the case may be, will be part of the mines determined in Rulings A, C and E above.

According to Federal Budget Supplementary Information dated March 19, 2007, accelerated capital cost allowance under paragraph 1100(1)(y) of the Regulations will be phased-out for certain oil sand projects. We are not providing any comment as to whether the Project, Expansion Lands or the Expanded Project will be subject to the phase-out schedule contained in the Federal Budget Supplementary Information.

Yours truly,

for Director
Reorganizations and Resources Division
Income Tax Rulings Directorate
Legislative Policy and Regulatory Affairs Branch