CRA indicated that, although s. 75(2) technically could apply to a real estate unit trust established on commercial terms, it very well might not apply s. 75(2) in such circumstances. However, if s. 75(2) applied to attribute trust income directly to the unitholders, distributions by the trust to the unitholders would not have the character of income distributions, so that such distributions could reduce the ACB of trust units. CRA then stated:
[A]dministrative relief is provided in paragraph 10 of Interpretation Bulletin IT-369R so that income subject to the application of subsection 75(2) is not otherwise included in the income of a beneficiary or trust, as the case may be.
In a particular case … the CRA could extend this position so that no reduction to the ACB of a beneficiary's capital interest would be made by virtue of subparagraph 53(2)(h)(i.1). …
[W]e have doubts as to whether paragraph 248(28)(a) can be invoked to ensure that no negative adjustment can be made to the ACB of the taxpayer's capital interest to prevent double taxation.