Teskey,
T.C.C.J.:—The
appellant
elected
to
have
his
appeals
against
assessments
for
1985
and
1989
heard
pursuant
to
the
informal
procedure.
The
issue
is
whether
the
appellant
is
entitled
to
amend
the
forward
averaging
election
made
by
him
with
respect
to
the
1985
taxation
year
which
could
result
in
an
accumulated
forward
averaging
amount
available
for
withdrawal
in
1989.
The
relevant
facts
are
that
the
appellant
incorrectly
claimed
$12,814.82
as
contributions
to
a
registered
retirement
savings
plan
("RRSP")
in
his
1985
T1
return.
The
Minister
of
National
Revenue
(the
"Minister")
disallowed
this
deduction
on
September
15,
1986
resulting
in
an
increase
in
taxable
income
of
$12,814.82.
The
appellant
had
claimed
a
forward
averaging
deduction
of
the
maximum
eligible
amount
when
filing
his
1985
T1
return.
The
appellant,
within
the
90-day
period
for
objecting
to
the
assessment,
did
so
by
requesting
that
he
be
allowed
to
forward
average
the
new
maximum
amount
based
on
this
assessment
that
increased
his
taxable
income
by
$12,814.82.
The
Federal
Court
of
Appeal
dealt
with
the
identical
problem
in
Miller
v.
The
Queen,
[1993]
1
C.T.C.
269,
93
D.T.C.
5035.
Therein,
the
Court
held
that
a
taxpayer
had
no
right
to
amend
a
forward
averaging
election
after
assessment.
Mahoney,
J.
said
at
page
270
(D.T.C.
5036-37):
The
intention
of
Parliament
is,
in
my
view,
clear;
the
taxpayer
was
entitled
to
make
the
election
on
the
basis
of
his
circumstances
as
they
existed,
and
as
only
he
could
know,
at
the
time
he
filed
his
return.
The
Act
did
not
contemplate
the
election
being
made
on
the
basis
of
changed
circumstances
which
might
result
from
an
assessment
or
reassessment
of
the
return.
To
allow
amendment
of
the
election,
either
by
the
Minister
as
part
of
the
assessment
process
or
the
taxpayer
after
assessment,
would,
in
my
opinion,
require
an
inadmissible
reading
into
the
Act
of
words
that
were
not
there.
For
these
reasons,
the
appeals
for
1985
and
1989
are
dismissed,
as
the
appellant
had
to
be
successful
in
the
1985
appeal
to
have
a
valid
1989
appeal.
Appeal
dismissed.
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