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Nitikman Fraser & Beatty Barristers and Solicitors 1040 West Georgia Street, 15th Floor Vancouver, British Columbia V6E 4H38 Dear Mr. Nitikman: Re: Allison Burnet Social Insuranc e Number [xxx xxx xxx] In response to your letter, dated August 3, 1994, with respect to the above- named taxpayer, the writer hereby further confirms that: • If the final outcome of Peter Burnet’s appeal from the assessment for the 1987 taxation year results in a loss, on account of income, on the disposition of the property (the “Property”) which was jointly owned by that person and the taxpayer, the taxpayer’s share, whether it be one- half or otherwise as the case may be, of such loss would be taken into consideration in determining the taxpayer’s non-capital loss for the 1987 taxation year and a Notice of Determination of such non-capital loss would be issued accordingly. • However, even though the taxpayer may have a non-capital loss for the 1987 taxation year as referred to in the immediately preceding paragraph, the taxpayer’s 1987 taxation year is statute-barred from reassessment, and the taxpayer’s share of any income loss on the disposition of the Property cannot be taken into consideration in computing her income, taxable income and tax payable for that year unless the Minister of National Revenue exercises his discretion to do so pursuant to the provisions of subsection 152(4.2) of the Income Tax Act. ...

., [1977] C.T.C. 168, 77 D.T.C. 5154, Addy, J. had this to say with regard to the meaning to be given to the word “structural” in the phrase “structural building sections" found in paragraph 26(4)(b) of the Act. [3] He said at pages 168-69 (D.T.C. 5155): In the context of sub-para, (b) above it is clear that the word structural” in the expression “ structural building sections" does not bear its usual general meaning of "pertaining to a structure” as the latter word is used in the same paragraph in the expression "any building or structure": it does not merely qualify a component as forming part of a structure or building but, much more restrictively, as being one of the components which inter-connected, ensure [ensures] that a building has a certain weight or load-bearing capacity or which, in other words, contribute substantially to its strength and solidarity and permit it to resist the various forces created by man and nature to which it might be subjected. ... Although the French version of paragraphs 26(4)(b) and (d) is [sic] at variance with one another ("éléments porteurs" and "acier de construction ouvré pour bâtiments”), the identical word “ structural” found in both paragraphs of the English version should govern the matter. ... The position of the Minister of National Revenue, however, based on the same code, is reflected in his notice of decision dated January 29,1988: [5] The word “ structural” within the meaning of paragraph 26(4)(d) of the Act, as it read at the time, does not bear its usual meaning of "pertaining to a structure”, but rather it qualifies a building material as having certain load-bearing capacity or which, in other words, contributes substantially to the strength and solidarity of the building and is designed and manufactured primarily for the purpose of resisting loads. ...

According to Dickson, C.J. at page 126 (S.C.R. 48; D.T.C. 5065): ”... neither the Income Tax Act nor the weight of judicial authority permits the courts to ignore the direct use to which a taxpayer puts borrowed money. ... What was said by Dickson, C.J. in the extract cited above was that ”... the taxpayer must satisfy the Court that his or her bona fide purpose in using the funds was to earn income.” ... But in final terms, what was said by Dickson, C.J. at page 129 (S.C.R. 55; D.T.C. 5067) in Bronfman Trust, governs the present case: ”... the courts must deal with what the taxpayer actually did, and not what he might have done, Matheson v. ...

The judgment appealed from requires the appellant to give evidence for the respondent and, by virtue of section 4 of the Canada Evidence Act, the appellant is not competent — and is, therefore, not compellable — to give evidence in the action for the respondent. 2. ... Vide, The Laws of England, Halsbury, First Edition, 1910, Butterworth & Co., London, para. 777, footnote (r). ...

— because it is an objection, they say, which is not in any way within the scope of section 222 of the Income Tax Act and has nothing to do with the debt being recovered. ... In my opinion, a finding by a court that the contract on which the third party relies to challenge the legitimacy of the seizure, or to argue that it has nothing to pay, is a sham, or, though real, cannot be set up against the garnisher — which as I mentioned is the purpose of the Paulian action — is still a decision directly connected with compulsory execution of the judgment. ...

I * That is the background against which Thurlow A.C.J. found as a fact that the purpose of the expenditure was to alleviate the undesirable effects of traffic congestion on the ongoing operations of the shopping centre: The need or occasion for the expenditure, in my view, was the undesirable effects which traffic congestion was causing and could be expected to cause on the popularity of the shopping centre..? ... Moreover, while the undesirable effects of traffic congestion on the popularity of the shopping centre and on its prospects for competing with a rival shopping centre might conceivably have led to some other whole or partial solution involving an outlay of a capital nature, such as to restructure the shopping centre or its buildings or its means of access, and ress and some such outlays may indeed have been made), this is 0t whal t expimditure here in es on was for The mane ’ was not cid or change in 0r additions to the la' li " ULeilk. ises or the buildings thereon or in connection with the structure s of the plaintiff's business^ Rather, it was paid to induce the City to make changes on City property that could be beneficial to the plaintiff in achieving its object of promoting its business by enhancing the popularity of its shopping centre. [13] *[emphasis added] Here, the exchange of land and the payment for the relocation of Pierre Corneille Street are not severable. ...

A Well, I got a frantic call one night about — I remember it was just before we went home so I figured it was about five o’clock at night — from the Department, and in the first place I was surprised because I didn’t know they worked that late. ... In view of these provisions and the decisions of the Privy Council in McHugh v Union Bank, of the Supreme Court in Smith & Rhuland Ltd v The Queen Ex Rel Brice Andrews et al [6], and of this Court in The Queen v Stevenson Construction Co Ltd [7], I am of the opinion that the authority of subsection 44(1) to make refunds is permissive and leaves the authority charged with its administration with a discretion whether or not to grant the refund. ...

In my opinion, the fact that these periodic payments of money by the association to the appellant were called “subscriptions” — the word used by the legislature in section 16, which in any case is a neutral term as such, as Casey, J. noted in his reasons in Richelieu Royal v. Duclos, [1950] K.B. 714, at pages 717-18 — or were called “advances”, does not affect the matter. ...

With respect to “garden seeders” the Tariff Board itself in Mercury Tool & Stamping Limited v The Deputy Minister of National Revenue for Customs and Excise (1962), 2 TBR 328 held that a lawn spreader was not a graden seeder not because it was not an agricultural implement (though it also held that it was not) but because it was for seeding lawns and not gardens. ... I have also turned up a case involving a toll clause in a railway act in which the phrase “‘all sorts of manure” was held to include artificial as well as natural fertilizers (Aberdeen Commercial Co v Great Northern (Scotland) Railway (1878), 3 Ry & Can Traffic Ca 205). ...

I do not think that the words in paragraph (h) — “grant, subsidy or other assistance from a... public authority” — have any application to an ordinary business contract negotiated by both parties to the contract for business reasons. ...