Minister of National Revenue v. Caverhill, Learmont & Co Limitedand Canadian Horticultural Industries, Taxpayer., [1978] CTC 2368

The Chairman:—On May 9, 1977 an application under section 174 the Income Tax Act, SC 1970-71-72, c 63, as amended, was filed with the Tax Review Board by the Minister of National Revenue in which Caverhill, Learmont & Co Limited is referred to as the appellant and Canadian Horticultural Industries as third party.

The said application reads as follows:

IN RE the Application under Section 174 of the Income Tax Act

Between:

CAVERHILL, LEARMONT & CO LIMITED,

Appellant,

— and —

THE MINISTER OF NATIONAL REVENUE,

Respondent,

— and —

CANADIAN HORTICULTURAL INDUSTRIES,

Third Party.

APPLICATION UNDER PAR 174(3)(b) OF THE INCOME TAX ACT

CONSIDERING THAT Caverhill, Learmont & Co Limited has filed a Notice of Appeal before the Tax Review Board on the 28th day of September, 1976, for its 1973 taxation year;

CONSIDERING THAT Canadian Horticultural Industries has filed a Notice Of Objection, dated November 16, 1976, against the Minister’s assessment, dated October 13, 1976, by which the Minister added an amount of $21,500 as taxable income, pursuant to section 9(1) of the Income Tax Act.

A) THE QUESTION IN RESPECT OF WHICH THE RESPONDENT REQUESTS A DETERMINATION IS:

Whether the amount of $21,500, paid by Caverhill, Learmont & Co Limited to Canadian Horticultural Industries, is to be considered:

1. as an amount disbursed by Caverhill, Learmont & Co Limited for the purchase: of goodwill from Canadian Horticultural Industries, so that consequently:

i) the purchaser, Caverhill, Learmont & Co Limited, having acquired a Capital. asset, the expense of which is not deductible pursuant to section 18(1)b) of the Act, must treat this asset in accordance with section 14(5)a) of the Act, and not pursuant to section 18(1 )a) of the Act.

ii) the vendor, Canadian Horticultural Industries, has sold a capital asset, the proceeds of which are taxable, pursuant to section 14(1) of the Act.

2. or as a payment pursuant to an agreement to share profits, So that consequently:

i) this amount of $21,500 is a deductible expense for Caverhill, Learmont & Co Limited, within the meaning of section 18(1)a) of the Act.

li) this amount of $21,500 is a taxable income for Canadian Horticultural Industries, pursuant to section 9(1) of the Act. **' .

B) THE TAXPAYERS THAT THE RESPONDENT SEEKS TO HAVE BOUND BY THE DETERMINATION OF THE QUESTION ARE:

— CAVERHILL, LEARMONT & CO LIMITED

— CANADIAN HORTICULTURAL INDUSTRIES

C) STATEMENT OF FACTS AND REASONS:

1. The facts on which the Respondent relies and on which he based the assessments are the following:

a) during the year 1972, Caverhill, Learmont & Co Limited, referred to as the Appellant, entered into an agreement with Canadian Horticultural

Industries, hereafter referred to as “CHI”

b) that the purpose of this agreement was to give the Appellant the right to use the name “CHI” and the right of distribution of “CHI” for certain products

c) that under this agreement, the Appellant was to pay, for a five-year period, annual amounts varying between 2% and 10% on the sales of the products depending of the said products

d) that in the year 1973, the Appellant and “CHI” entered into a new agreement whereby the Appellant would acquire the use of the name “CHI” and the right of distribution of certain products of “CHI” for a total price of $21,500, agreed upon by both parties

e) that for its year 1973, the Appellant claimed a deduction for the said amount of $21,500, as being an expense incurred for the purpose of producing or gaining income

f) that the Respondent disallowed this deduction and, by Notice of Assessment, dated December 30, 1975, the Respondent added ‘this amount to the Appellant’s income, considering the said amount as: a payment for the acquisition of an eligible capital expenditure

g) this was confirmed by way of Notification by the Minister, on ‘the 22nd of June, 1976

h) that Caverhill, Learmont & Co Limited filed a Notice of Appeal before the Tax Review Board, on the 28th day of September, 1976, for its 1973 taxation year

i) that the Minister assessed, on October 13, 1976, the company known under the name of Canadian Horticultural Industries for its 1973 taxation year, on the basis that an amount of $21,500 was taxable income, pursuant to section 9(1) of the Act

j) that “CHI” filed a Notice of Objection against this assessment, on November 16, 1976.

The Respondent relies, inter alia, on sections 3, 9(1), 14(1), 15(5)a), 14(5)b), 18(1)a) and 18(1 )b) of the Income Tax Act (1970-71-72, ch 63);

a) the determination of the true nature of the agreement binding Caverhill, Learmont & Co Limited and Canadian Horticultural Industries during the 1973 taxation year, and more particularly, if this agreement constitutes in facts and. in, law, an agreement for the purchase and sale of goodwill or an agreement to share profits, will decide if the expense incurred by Caverhill, Learmont & Co Limited was for the acquisition of a capital asset, the expense of which is not deductible pursuant to section 18(1)b) of the Act, and therefore taxable in the hands of Canadian Horticultural Industries in accordance with the sale of goodwill and pursuant to section 14(1) of the Act, or if the expense incurred by Caverhill, Learmont & Co Limited is deductible. pursuant to section 18(1)a) of the Act and therefore, taxable in the hands of Canadian Horticultural Industries, pursuant to section 9(1) of the Act.

WHEREAS, Caverhill, Learmont & Co Limited, taxpayer, has appealed before the Tax Review Board ‘against the Respondent’s assessment for its 1973 taxation year, by Notice of Appeal, dated September 28, 1976;

WHEREAS, the Respondent has assessed Canadian Horticultural Industries, taxpayer, for its 1973 taxation year;

WHEREAS, the determination of the question set forth in the present Application will affect assessments in respect of both taxpayers whom the Respondent seeks to have bound by it;

THAT the present Application be granted;

THAT the Tax Review Board make an order joining the parties named in paragraph (B) to the Appeal of Caverhill, Learmont & Co Limited, and

THAT Canadian Horticultural Industries, party and taxpayer, be bound by the decision rendered by the Tax Review Board in the appeal filed by Caverhill, Learmont & Co Limited.

DATED AT MONTREAL, this 4th day of May 1977.

(signed) Louise Bélair

Louise Bélair,

Solicitor for the Respondent

cc: THE REGISTRAR

Tax Review Board

381 Kent Street

Ottawa, Ontario K1A 0M1

Me Robert B Issesman

MARTINEAU, WALKER, ALLISON ET AL

The Stock Exchange Tower

PO Box 242, Victoria Square

Montréal, Québec H4Z 1E9

Mr C A Lindsay

E W PLAYFORD LTD

5851 Upper Lachine Road

Montréal, Québec H4A 2B8

On August 12, 1977 the Tax Review Board issued an order naming the three parties referred to in the application setting September 19, 1977 as the date on which the application would be heard:

ORDER

WHEREAS the Minister of National Revenue is of the opinion that a question of law, fact, or mixed law and fact, arising out of one and the same transaction or occurrence or series of facts and occurrences is common to assessments in respect of two or more of the named taxpayers,

AND WHEREAS the said Minister of National Revenue has applied to the Tax Review Board, pursuant to section 174(1) of the Income Tax Act, for a determination of the said question,

AND WHEREAS the Minister has complied with all the provisions of subsection (2) of the said s 174 of the said Act: I"

THIS BOARD DOTH HEREBY ORDER that the said question shall be determined by the Board and that the said application shall be dealt with at the sittings to be held at Montreal on the 19th day of September, 1977.

Signed at Ottawa, Canada, this 12th day of August, 1977.

(signed) Lucien Cardin

Lucien Cardin

Chairman

Mr Brian M Schneiderman, attorney for Canadian Horticultural Industries (hereinafter referred to as CHI), opposed the application. In his remarks, as I understood him, Mr Schneiderman’s principal contentions were:

1. that pursuant to paragraphs 174(3)(a) and (b) of the Income Tax Act, SC 1970-71-72, c 63, as amended, taken together if one person has appealed his assessment, the Board can no longer determine the question set out in the application;

2. that the decision of the Board in an appeal to which a third party was joined pursuant to paragraph 174(3)(a) could not be binding on the third party:

3. that the Department of National Revenue’s practice of issuing contradictory assessments in matters arising out of the same transactions and then seeking to have the questions determined under section 174 of the Income Tax Act is wrong in principle;

4. that joining a third party to an appeal would cause procedural problems in the hearing of such an appeal and more importantly would jeopardize the statutory rights of third parties.

Counsel for the respondent contended that even though section 174 of the Income Tax Act may lack clarity and that procedural difficulties might arise in joining a third party to an appeal, the section was included in the Income Tax Act for a definite purpose and that in applying section 174 the intention the legislator had in drafting the section should be sought and applied.

Both counsel were very eager and indeed asked the Board in its decision to attempt to clarify as many points as possible arising from the application of section 174 of the Income Tax Act.

I am not at all certain, after studying the whole of section 174 and each of its subsections, that its application as it is now written, can attain the objective Parliament apparently had in mind without giving rise to anomalous situations and indeed without seriously curtailing certain taxpayers’ rights in the process.

No one would disagree with the statement that while attempting to avoid duplication of lengthy procedures, section 174 was meant, in general terms, to be an aid to the Minister of National Revenue in assessing certain taxpayers who have participated in a common transaction and whose tax liabilities are impossible to assess properly without some prior determination having been made as to the facts and/or law in respect of the transaction.

In attempting to provide the Department of National Revenue with some basis on which to make its assessment in such circumstances, Parliament, in drafting section 174, it would appear, attempted with a view of saying judicial time to cover taxpayers involved in a common transaction who, on the same issue were at different stages of our taxation procedures, including taxpayers who had not yet even been assessed. Here, as I see it, is one source of the problem.

174. (1) Reference to Federal Court or Tax Review Board of common questions.—Where the Minister is of the opinion that a question of law, fact or mixed law and fact arising out of one and the same transaction or occurrence or series of transactions or occurrences is common to assessments in respect of two or more taxpayers, he may apply to the Tax Review Board or the Federal Court—Trial Division for a determination of the question.

It would appear from subsection 174(1) of the Income Tax Act that the Minister may file an application for a determination of a-question as to which of two or more taxpayers who were parties to the same transaction should be assessed. The question having been determined, the Minister would normally proceed to assess accordingly.

In practice, however, the Department of National Revenue usually has, prior to filing an application for the determination of that very question, already assessed one or more of the taxpayers and quite often has issued contradictory assessments to taxpayers involved in the same transaction. The propriety, or otherwise, for the Department of National Revenue to make such contradictory assessments will be referred to later.

174. (2) An application under subsection (1) shall set forth

(a) the question in respect of which the Minister requests a determination,

(b) the names of the taxpayers that the Minister seeks to have bound by the determination of the questions, and

(c) the facts and reasons on which the Minister relies and on which be based or intends to base assessments of tax payable by each of the taxpayers named in the application, (emphasis mine)

and a copy of the application shall be served by the Minister on each of the taxpayers named in the application and on any other persons who, in the opinion of the Tax Review Board or the Federal Court—Trial Division, as the case may be, are likely to be affected by the determination of the question.

From the wording of paragraph 174(2)(c) of the Income Tax Act, it seems clear that assessments already made, as well as assessments yet to be made are envisaged. Although the last paragraph of subsection 174(2) is not chronologically clear, it seems evident that what was intended was that all persons who could be affected by the determination of the question be named in the application and in the Board’s notice of hearing of the application.

174. (3) Where Board or Court may determine question.—Where the Tax Review Board or the Federal Court—Trial Division is satisfied that a determination of the question set forth in an application under. this section will affect assessments in respect of two or more taxpayers who have been served with a copy of the application and who are named in an order of the Board or the Court, as the case may be, pursuant to this subsection, it may

(a) if none of the taxpayers so named has appealed from such an assessment, proceed to determine the question in such manner as it considers appropriate, or

(b) if one or more of the taxpayers so named has or have: appealed, make such order joining a party or parties to that or those appeals as it considers appropriate.

The order of the Board, or Court, referred to in the first paragraph of subsection 174(3) of the Income Tax Act, can only be an order addressed to all taxpayers affected by the determination of the question, giving notice of the time and place at which the Minister’s application will be heard and summoning all named taxpayers to attend. At: the hearing; all summoned taxpayers are given the opportunity of opposing the application giving reasons why they should not be included in the determination of the question. Some confusion has arisen in respect of.the Board’s order with reference to the Minister’s application and the order has been amended accordingly.

In my view, that order is simply a notice of hearing of the Minister’s application. The order is not meant, nor in my opinion should it presume to either determine the question or join the taxpayers to an existing appeal at that stage, its purpose is to permit the taxpayers concerned to speak to the Minister’s motion.

Once the Minister’s application has been heard, the Board. must then be governed by either one of the two distinct procedures which are set out respectively in paragraphs 174(3)(a) and (b) of the Income Tax Act. The practice of the Department of National Revenue of, seeking, in its application, to have a question determined and at the same time seek to join taxpayers to an appeal is, in my view, questionable. It would seem to me that a clear distinction must be made between the determination of a question pursuant to paragraph 174(3)(a) and a decision of the Board to join taxpayers to an appeal according to paragraph 174(3) (b).

Where none of the taxpayers have appealed from the Minister’s assessment, the Board proceeds to determine the question, at that time or later, in the manner it considers appropriate. Since, pursuant to paragraph 174(2)(c) of the Income Tax Act, some taxpayers may not yet have been assessed, the determination of the question can only: be as to which of the taxpayers named in the Board’s order should be assessed and the quantum of the assessment also determined.

Where one or more of the taxpayers named in the Minister’s application have appealed their assessment, the Board then makes a second order joining the party or parties to the existing appeals. Notwithstanding any procedural difficulties that might arise once other taxpayers have been joined to an appeal, the Board must then decide on the merits of the original appeals and, in my opinion, all the taxpayers who were joined to those appeals would necessarily be bound by the Board’s decision.

174. (4) Determination final and conclusive.—Where a question set forth in an application under this section is determined by the Tax Review Board or the Federal Court—Trial Division, the determination thereof is, subject to any appeal therefrom in accordance with the Federal Court Act, final and conclusive for the purposes of any assessments of tax payable by the taxpayers named by it pursuant to subsection (3).

Notwithstanding the generality of the restriction of section. 174, I believe that there is a fundamental difference between the determination by the Board of a question set forth in an application. under paragraph 174(3)(a) of the Income Tax Act, and:.a decision to be rendered by the Board on the merits of an appeal validly before it to which other taxpayers have been joined according to paragraph 174(3)(b).

In the first instance, it seems clear that the Board’s decision is not one as a result of an appeal from an assessment; it is a determination of a question affecting taxpayers who have not appealed from their assessments or who have not yet been assessed.

Whereas if the Board has before it an appeal to which other taxpayers have been joined under paragraph 174(3)(b), the Board must decide the issue in the appeal before it. The decision rendered by the Board would, in my opinion, then be an appeal from the Minister’s assessments. The question arises as to whether any of the parties in a joined appeal can appeal from the Board’s decision to the Federal Court—Trial Division in a procès de novo pursuant to section 172 of the Income Tax Act, or are they precluded from doing so by the wording of subsection 174(4)?

In the case of Attorney General of Canada v James C Weaver and Freda J Weaver, [1975] CTC 646 at 651; 75 DTC 5462 at 5465, which appears to be the first application for review of a Tax Review Board decision under section 174, the learned judge the Honourable Mr Justice Urie concluded:

It thus seems clear that no appeal is provided either under the Income Tax Act or under the Federal Court Act from a determination made by the Tax Review Board pursuant to section 174 of the Income Tax Act.

Further, on the same page of the Weaver case (supra), the Honourable Mr Justice Urie states:

A decision of the Tax Review Board made pursuant to section 174 is not one as the result of an appeal from an assessment. As a matter of fact, by subsection 174(3), the Board may only make the determination applied for if none of the taxpayers affected has appealed from their assessments.

This is certainly applicable to paragraph 174(3)(a) which deals with the determination of the question when ‘none of the taxpayers have appealed but does it also apply to paragraph 174(3)(b) where the decision of the Board is one, in my opinion, as the result of an appeal from assessments? The wording of the restriction of subsection 174(4) of the Income Tax Act clearly makes no distinction between paragraphs 174(3)('a) and 174(3)(b) and is applicable to taxpayers who have appealed from their assessment as well as those who have not appealed.

The Honourable Mr Justice Urie referred to the anomaly which arises when the Minister seeks to have the Federal Court—Trial Division determine a question of law, or mixed law and fact under section 174 where the decision is appealable to the Federal Court of Appeal whereas if the Minister had chosen to have the question determined by the Tax Review Board the taxpayer loses all right of appeal to the Federal Court, his only redress being a judicial review by the Federal Court of Appeal under section 28 of the Federal Court Act.

The learned Justice has properly pointed out the anomalous situation which arises in treating. taxpayers differently depending on whether the Minister files an application under section 174 with the Federal Court—Trial Division or with the Tax Review Board. However, the Tax Review Board is very conscious of several other anomalies which arise when it attempts to apply section 174. If the principal objective of section 174 is to ascertain how the Minister is to assess taxpayers involved in a common transaction when none of the taxpayers have appealed, the Board, in determining the question, specifies which of two or more taxpayers are to be assessed or reassessed and by how much. It is conceivable that that restricted scope of the Board’s determination as to which taxpayer is to be assessed could be considered as final and subject only to a judicial review under section 28 of the Federal Court Act. In principle, such taxpayers, having been so assessed by the Minister, should normally have the right to appeal to the Tax Review Board from the Minister’s assessment pursuant to section 169 of the Income Tax Act with a further appeal to the Federal Court—Trial Division pursuant to section 172 of the Income Tax Act. In practice, however, since the whole basis of the assessment has already been reviewed by the Board in determining the question, an appeal to the Board on the same issue would be an unjustifiable loss of judicial time. It would nevertheless be in keeping with our established appeal procedure, that taxpayers who have been assessed or reassessed by the Minister as a result of the Board’s determination pursuant to paragraph 174(3)(a) be allowed to appeal the Minister’s assessment to the Federal Court— Trial Division. To preclude the taxpayer from normally appealing from an assessment as a consequence of a procedure established to facilitate the Minister’s assessment of certain taxpayers in exceptional and different circumstances cannot, in my opinion, have been intended by Parliament. On the other hand, when applying paragraph 174(3)(b), the Board is clearly seized with an appeal from an assessment and it must decide the issue in the appeal whether or not other taxpayers have been joined. In theory, taxpayers who are joined to an appeal should have the right to file their own notice of objection or notice of appeal in the ordinary manner. It appears to me that the delays for. filing such notices are provided for in subsection 174(5) of the Income Tax Act. Once taxpayers who have been joined to an appeal or appeals under paragraph 174(3)(b) have filed the customary notices, the Board would hear simultaneously all the appeals and its decisions, in my opinion, would be a decision from the taxpayers’ appeals from their respective assessments in accordance with section 169 of the Income Tax Act and binding on all appellants.

In my opinion; the Honourable Mr Justice Urie, who in the Weaver case (supra), had to deal with an application under section 28 of the Federal Court Act with reference to the Board’s determination of a question under paragraph 174(3)(a) did not need to, nor in my opinion did he consider decisions of the Board rendered as a result of appeals from assessments pursuant to paragraph 174(3)(b). In applying subsection 174(4) as written, the effect is that the taxpayer, who has seen, in accordance with: paragraph 174(3)(b), other taxpayers joined to the appeal which he has instituted from his own assessment loses the right he originally had of appealing the Board’s decision to the Federal Court—Trial Division pursuant to section 172 of the Income Tax Act, Here again, it appears to me to be inequitable for the taxpayer, under those circumstances, to lose the right of appeal to the Federal Court—Trial Division and to be restricted to a judicial review under section 28 of the Federal Court Act, as a result of a statutory procedure designed to permit the Department of National Revenue to assess taxpayers more accurately in admittedly difficult circumstances. I do not believe that that result was in any way intended by Parliament.

174. (5) Time during consideration of question not counted.—The time between the day on which an application under this section is served on a taxpayer pursuant to subsection (2), and

(a) in the case of a taxpayer named in an order of the Tax Review Board or the Federal Court—Trial Division, as the case may be, pursuant to subsection (3), the day on which the question is finally determined pursuant to paragraph (3)(a) or on which an order is made under paragraph (3)(b), or,

(b) in the case of any other taxpayer, the day on which he is served with notice that he has not been named in an order of the Board or the Court, as the case may be, pursuant to subsection (3),

shall not be counted in the computation of

(c) the 4-year period referred to in subsection 152(4),

(d) the time for service of a notice of objection to an assessment under section 165, or

(e) the time within which an appeal may be instituted under section 169 or subsection 172(2),

for the purpose of making an assessment of the tax payable by the taxpayer, serving a notice of objection thereto or instituting an appeal therefrom, as the case may be.

If subsection 174(4) of the Income Tax Act is to be interpreted as being a prohibition for taxpayers from appealing to the Federal Court

—Trial Division from assessments made by the Minister as a result of a determination by the Board pursuant to paragraph 174(3)(a), and a prohibition for taxpayers from appealing from their assessment because other taxpayers have been joined to their original appeals under paragraph 174(3)(b) then the inclusion of the Tax Review Board in subsection 174(5) and the wording of that section as if affects the Tax Review Board is, in my view, meaningless and inoperative, which again cannot be what Parliament had intended.

In summarizing my personal conclusions after studying section 174 as a whole and in its subsections they are:

1. The purpose of section 174 is to permit the Minister to assess more accurately taxpayers who are involved in a common transaction.

2. In establishing a procedure to achieve the stated purpose while at the same time saving judicial time, the taxpayers’ rights of appeal to the Federal Court—Trial Division from their assessments appear to have been jeopardized.

3. The Federal Court of Appeal has stated that the Board may only make a determination under paragraph 174(3)(a) if none of the taxpayers have appealed from their assessments.

4. The practice of the Department of National Revenue in its applications under section 174 of simultaneously seeking to have the question determined pursuant to paragraph 174(3)(a) and requesting that certain taxpayers [be] joined to an existing appeal, pursuant to paragraph 174(3)(b), is contrary to the Federal Court of Appeal’s obiter dictum in the Weaver case (supra).

5. The practice of the Department of National Revenue of issuing contradictory assessments to taxpayers involved in a common transaction and then applying to the Tax Review Board for determination of the question under section 174 appears to me to be most questionable. Particularly since the rights of the taxpayers to appeal the Board’s decision to the Federal Court—Trial Division are curtailed in a procedure chosen by the Minister.

6. In theory, if not in practice, a determination by the Board of a question under paragraph 174(3)(a) when none of the taxpayers have appealed and where one or more taxpayers may not have yet been assessed, is aimed more particularly at identifying which of the taxpayers in a common transaction are to be assessed and which are not to be assessed. Such a determination by the Board might conceivably not be appealable by the taxpayer or the Minister other than by way of a judicial review under section 28 of the Federal Court Act. However, once a taxpayer has been assessed pursuant to a determination by the Board, the taxpayer, in my opinion, should not be precluded from appealing his assessment to the Federal Court—Trial Division.

7. When taxpayers are joined to an existing appeal under paragraph 174(3)(b), the opportunity of filing a notice of objection and a notice of appeal should be given the joined taxpayers. However, a decision of the Board would be binding on all taxpayers so joined to an, original appeal to the Board. In my Opinion, there is no valid ‘reason why any or all of the taxpayers, who have so appealed from their assessments, should, under the circumstances, be precluded from appealing the Board’s decision to the Federal Court—Trial Division under section 172 of the Income Tax Act. That is, of course, other than the interpretation of the wording to be given to subsection 174(4). ... : —. -. . . .-J «<

The foregoing has been written at the request of both counsel to the instant application before the Board and because of the lack of clarity, the inherent contradictions of section 174 as well as the anomalous results to which its application gives rise. The Board can well imagine the difficulty and the practical problems that exist in assessing taxpayers in the above described circumstances, however, I believe the Board would not be assuming its responsibilities if it remained silent as to the undesirable results that occur in trying to apply section 174 as it is now written. Most of the foregoing is by way of obiter dictum and meant to be helpful.

Decision

In the present application, the respondent seeks to have a specific question as set out above determined by the Board and seeks as well to have Canadian Horticultural Industries joined in an appeal instituted by Caverhill, Learmont & Co Limited.

On the basis that the Board may only determine a question pursuant to paragraph 174(3)(a) when none of the taxpayers named in an appeal have appealed their assessment and since Caverhill, Learmont & Co Limited does have a valid appeal before the Board, that part of the Minister’s application is therefore rejected.

However, Canadian. Horticultural Industries having participated in a common transaction with Caverhill, Learmont & Co Limited, an appellant before this Board, the Board orders that Canadian Horticultural Industries be joined to the appeal of Caverhill, Learmont & Co Limited. The evidence is that Canadian Horticultural Industries has filed a notice of objection to its assessment and may therefore file a notice of appeal with this Board pursuant to subsection 174(5) of the Income Tax Act within the delay set out in section 169 of the Income Tax Act for filing a notice of appeal to be counted from the date of this. order. The requirements of section 169 having been met, the Board will serve a notice of hearing on the parties and the joined appeals will be heard according to a procedure deemed by the Board as appropriate in the circumstances.