Robertson J.A.:
Assuming, without deciding, that the Tax Court of Canada possesses the inherent jurisdiction to set aside a notice of discontinuance or that the requisite jurisdiction arises under s. 172 of the Tax Court of Canada Rules, we are all of the view that this appeal cannot succeed on its merits.
In the present case, the taxpayer’s solicitors advised the taxpayer to discontinue his appeal from the Minister’s Notice of Assessment on the basis of information received from the taxpayer’s accountant. A notice of discontinuance was then duly filed with the Tax Court. Subsequently, however, the taxpayer was advised by his accountant that the earlier advice had been given in error. That error pertains to a question of fact; namely whether a capital cost allowance had been claimed by the taxpayer in a previous taxation year.
Against this factual background, it is obvious to us that the taxpayer cannot distance himself from the erroneous advice given by his accountant. In the circumstances, there is no merit in the argument that the taxpayer could not have discovered the true state of affairs through the exercise of due diligence. In the absence of fraud, the conduct of the taxpayer embraces the conduct of his professional advisors. In our view, the facts of the present case do not come within the ambit of the law as stated by Stone J.A. in Saywack v. Canada (Minister of Employment & Immigration), [1986] 3 F.C. 189 (Fed. C.A.) at 201.
For these reasons the appeal must be dismissed with costs.
Appeal dismissed.
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