Stone,
J.A.:—This
appeal
is
from
an
order
of
the
Trial
Division
made
November
30,
1990,
in
response
to
two
questions
of
law
submitted
pursuant
to
Rule
474
of
the
Federal
Court
Rules
and
set
down
for
determination
pursuant
to
an
order
made
by
the
Associate
Chief
Justice
on
May
17,
1990.
These
questions
are
whether:
(1)
the
reassessment
made
by
way
of
the
First
Notice
of
Reassessment
was
superseded
and
displaced
by
the
reassessment
made
byway
of
the
Second
Notice
of
Reassessment
and
ceased
to
exist
from
the
time
of
issuance
of
the
Second
Notice
of
Reassessment,
as
the
plaintiff
(appellant)
contends,
or
(2)
the
reassessment
made
by
way
of
the
First
Notice
of
Reassessment
is
currently
subsisting
notwithstanding
the
issuance
of
the
Second
Notice
of
Reassessment,
as
the
defendant
(respondent)
contends.
The
notices
of
reassessment
referred
to
in
these
questions
are
in
respect
of
the
appellant's
1983
taxation
year
and
relate
to
possible
tax
liability
for
that
year
in
respect
of
an
alleged
capital
gain
realized
by
the
appellant
on
the
sale
of
real
property.
The
original
notice
of
assessment,
issued
in
March
1984
made
no
reference
to
this
alleged
gain.
Increased
taxable
income
in
the
form
of
capital
gain
was,
however,
included
in
the
first
notice
of
reassessment
which
was
issued
on
January
30,
1987.
By
a
second
notice
of
reassessment,
dated
July
22,
1988,
the
taxable
income
as
previously
reassessed
was
increased
by
inclusion
of
additional
capital
gain.
The
appellant
objected
to
both
reassessments
and
waived
its
rights
to
have
them
reconsidered.
When
the
Minister
declined
to
consent
to
the
waivers,
the
appellant
instituted
separate
appeal
proceedings
in
the
Trial
Division
against
both
reassessments.
In
due
course,
the
appellant
moved
in
the
Trial
Division
for
an
order
allowing
the
second
appeal
and
vacating
the
second
reassessment
on
the
ground
that
it
was
not
made
within
three
years
of
the
making
of
the
original
notice
of
assessment,
as
required
by
paragraph
152(4)(c)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act").
On
April
28,
1989,
the
motion
succeeded
when
the
Associate
Senior
Prothonotary
made
the
following
order:
THIS
COURT
ORDERS
that
the
appeal
be
allowed,
without
costs,
and
that
the
reassessment
for
the
1983
taxation
year
against
which
appeal
was
instituted
by
the
Statement
of
Claim
herein
be
vacated.
The
appeal
herein
was
heard
together
with
the
appeal
in
Court
File
Number
A-1075-90.
As
each
appeal
raises
identical
issues,
a
copy
of
the
reasons
for
judgment
in
that
appeal
are
annexed
hereto
and
shall
form
part
of
these
reasons
for
judgment.
I
would
dismiss
the
appeal,
set
aside
the
order
of
the
motions
judge
and
substitute
the
following
therefor:
The
questions
posed
for
determination
pursuant
to
the
order
of
the
Associate
Chief
Justice
dated
May
17,
1990,
are
answered
as
follows:
(1)
The
reassessment
made
by
way
of
the
First
Notice
of
Reassessment
was
not
superseded
and
displaced
by
the
reassessment
made
by
way
of
the
Second
Notice
of
Reassessment
and
did
not
cease
to
exist
from
the
time
of
issuance
of
the
Second
Notice
of
Reassessmentforward;
(2)
The
reassessment
by
way
of
the
First
Notice
of
Reassessment
iscurrently
subsisting
notwithstanding
the
issuance
of
the
Second
Notice
of
Reassessment.
While
issuing
of
the
second
notice
of
reassessment
by
the
Minister
undoubtedly
led
to
the
Rule
474
application
and
to
this
appeal,
I
do
not
accept
that
as
a
basis
for
allowing
the
appellant
its
costs
in
any
event.
There
should
be
one
set
of
costs
in
this
and
the
appeal
in
Court
File
Number
A-1075-90
and
they
should
be
in
the
cause.
Email this Content