Dussault,
T.C.J.:—By
way
of
a
preliminary
motion,
the
appellant
asked
the
Court
to
allow
his
appeal
and
order
that
the
reassessment
dated
October
11,
1989,
with
respect
to
his
1985
taxation
year
be
vacated
on
the
basis
that
it
is
statute
barred.
The
notice
of
original
assessment
for
the
appellant's
1985
taxation
year
is
dated
August
26,
1986.
On
October
7,
1988,
the
respondent
issued
first
notices
of
reassessment
for
the
appellant's
1984,
1985
and
1986
taxation
years
and,
on
December
24,
1988,
the
appellant
filed
notices
of
objection
to
same.
On
September
27,1989,
the
reassessment
for
the
1986
taxation
year
was
confirmed
and
on
October
11,
1989,
the
respondent
issued
second
notices
of
reassessment
whereby
the
tax
payable
for
1984
was
decreased
while
the
tax
payable
for
1985
was
increased.
Finally,
on
December
20,
1989,
the
appellant
filed
a
notice
of
objection
against
the
October
11,
1989,
reassessment
for
the
1985
taxation
year.
Confirmation
of
that
reassessment
was
made
on
February
6,
1990.
As
the
October
11,
1989
reassessment
is
clearly
beyond
the
three-year
limitation
period
set
forth
in
subsection
152(4)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act"),
counsel
for
the
appellant
argues
that
it
should
be
vacated
as
invalid
since
no
allegation
is
made
by
the
respondent
of
any
fraud
or
misrepresentation
and
the
taxpayer
has
not
filed
any
waiver.
Counsel
for
the
appellant
takes
the
position
that
the
reassessment
was
made
pursuant
to
subsection
152(4)
and
not
subsection
165(3)
of
the
Act
as
no
mention
is
made
to
the
latter
subsection
in
the
notice
of
reassessment
while
such
a
reference
was
made
in
the
confirmation
of
the
first
reassessment
for
the
1986
taxation
year.
An
alternative
argument
submitted
by
counsel
for
the
taxpayer
seems
to
be,
if
my
understanding
is
correct,
that
even
if
the
October
11,
1989,
reassessment
was
found
to
be
valid
if
one
were
to
apply
subsections
165(3)
and
(5)
of
the
Act,
it
would
still
be
contrary
to
subsection
152(5)
of
the
Act
and
hence
invalid
as
including
an
amount
that
was
not
previously
included
in
the
taxpayer's
income
for
the
purposes
of
an
assessment
before
the
expiry
of
the
three-year
normal
period.
Counsel
for
the
respondent
relies
on
subsection
165(5)
to
argue
the
validity
of
the
reassessment
as
it
was
issued
pursuant
to
subsection
165(3)
of
the
Act
following
the
filing
of
a
valid
notice
of
objection
by
the
taxpayer.
As
to
the
alternative
argument
raised,
counsel
for
the
respondent
concedes
that
the
application
of
subsection
152(5)
of
the
Act
to
the
October
11,
1989,
reassessment
would,
in
effect,
preclude
the
inclusion
of
an
additional
amount
in
the
taxpayer's
income
for
1985
that
had
not
been
previously
included.
In
my
mind,
there
is
no
doubt
that
the
second
reassessment
dated
October
11,1989,
was
issued
in
response
to
the
taxpayer's
notice
of
objection
to
the
first
reassessment
issued
October
7,
1988,
which
notice
of
objection
was
filed
December
24,
1988.
As
the
taxpayer
had
duly
filed
his
notice
of
objection
to
the
first
reassessment,
the
second
reassessment
was
issued
pursuant
to
the
specific
obligation
to
reassess
or
confirm
found
in
subsection
165(3)
and
not
under
the
general
authority
to
reassess
given
by
subsection
152(4)
of
the
Act.
In
such
a
case,
subsection
165(5)
is
to
the
effect
that
the
reassessment
is
not
invalid
by
reason
only
of
not
having
been
made
within
3
years
from
the
date
of
mailing
of
a
notice
of
an
original
assessment.
.
.".
Moreover,
I
fail
to
see
in
subsection
165(3)
any
obligation
that
the
Minister
would
have
to
mention
or
to
refer
specifically
to
the
appropriate
provision
of
the
Act
on
a
notice
of
reassessment.
In
my
view
this
suffices
to
dispose
of
the
matter.
As
to
the
alternative
argument
based
on
subsection
152(5)
of
the
Act,
it
goes
well
beyond
the
ground
raised
in
the
motion
namely
the
time
limitation.
Moreover,
it
covers
an
element
included
in
the
taxpayer's
income
in
the
process
of
the
second
reassessment
and
should
rightly
be
dealt
with
on
its
merits
on
hearing
of
the
appeal
from
that
reassessment.
For
the
foregoing
reasons,
the
motion
is
dismissed.
Motion
dismissed.
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