The Taxpayer, a taxable Canadian corporation, used the proceeds of a U.S.-dollar loan to subscribe for shares of a wholly-owned foreign affiliate (“Subsidiary”). After receiving a dividend, which the Taxpayer had treated in part as a return-of-capital and in part as an exempt dividend, Subsidiary was wound-up (at a time that its net worth was nil), with the Taxpayer realizing a capital loss, which was entirely attributable to the depreciation in the U.S. dollar. The Taxpayer repaid the loan in a subsequent year and realized a capital gain.
After finding that s. 93(2) applied to reduce the capital loss, the Directorate went on to note that that the same result would have obtained even if para. (b), as added pursuant to the February 24, 2004 Legislative Proposals had been applicable, given that the s. 39(2) gain on repayment of the loan had been realized in a year subsequent to the realization of the capital loss.