Date: 20121105 Docket: A-444-11 Citation: 2012 FCA 279 CORAM: NADON J.A. GAUTHIER J.A. TRUDEL J.A. BETWEEN: SA MAJESTÉ LA REINE appelante and RICHARD LEWIN intimé Heard at Montréal, Quebec, on November 5, 2012. Judgment delivered from the Bench at Montréal, Quebec, on November 5, 2012. REASONS FOR JUDGMENT OF THE COURT BY: NADON J.A. Date: 20121105 Docket: A-444-11 Citation: 2012 FCA 279 CORAM: NADON J.A. GAUTHIER J.A. TRUDEL J.A. BETWEEN: SA MAJESTÉ LA REINE appelante and RICHARD LEWIN intimé

REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Montréal, Quebec, on November 5, 2012) NADON J.A. [ 1 ] We are all agreed, substantially for the reasons given by the Tax Court judge, that the J.J. Herbert family Trust No. 1 resolution of September 11, 2001 whereby the trustees declared that a dividend of $2,200,003 “be paid” to Mr. J.J. Herbert and that Mr Herbert “shall have the right at any time to require payment of the amount of the dividend by the Trust to himself at any time” did not constitute a credit to Mr.

Herbert’s account. [ 2 ] In so concluding, we are not to be taken as endorsing the judge’s reasons with respect to subsection 227(5) of the Income Tax Act . [ 3 ] Consequently, this appeal cannot succeed and will therefore be dismissed with costs. "M. Nadon" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-444-11 APPEAL FROM A JUDGMENT RENDERED BY THE TAX COURT OF CANADA ON OCTOBER 25, 2011, DOCKET NO. 2009-1192(IT)G. STYLE OF CAUSE: Sa Majesté La Reine c. Richard Lewing PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: November 5, 2012

REASONS FOR JUDGMENT OF THE COURT BY: NADON J.A. GAUTHIER J.A. TRUDEL J.A. DELIVERED FROM THE BENCH BY: NADON J.A. APPEARANCES : Me Pascal Tétrault FOR THE APPELLANT Me Benoît Bourgon Me Yves St-Cyr FOR THE RESPONDENT SOLICITORS OF RECORD : Department of Justice Canada Montréal ,Quebec FOR THE APPELLANT Heenan Blaikie Montréal , Quebec FOR THE RESPONDENT