Goetz,
TCJ
[ORALLY]:—This
is
an
appeal
by
the
executors
of
the
estate
of
the
late
Leland
Musslewhite,
relating
to
the
1977
taxation
year.
The
Crown
has
alleged
that
the
appellant
made
an
election
pursuant
to
the
provisions
of
the
Income
Tax
Act,
namely
subsection
70(6.2)
whereas
Mrs
Musslewhite
says
that
she
did
not
make
that
election,
albeit
it
appeared,
as
far
as
the
Minister
is
concerned,
in
two
income
tax
returns
(Exhibits
A-1
and
A-4
of
the
Exhibits
filed).
To
completely
understand
the
Minister
taking
the
position
that
he
has,
we
have
to
look
at
the
manner
in
which
the
tax
returns
were
put
together
by
an
accountant,
Joseph
Taschuk.
Nevertheless,
making
an
election
is
a
rather
technical
step
which
has
obviously
considerable
ramifications,
none
of
which
Mr
Taschuk
understood.
The
only
reason
why
he
put
in
the
amount
of
$105,000
was
because
he
saw
a
subsequent
sale.
He
did
not
understand
the
provisions
upon
which
the
Crown
relies,
and
which
they
were
entitled
to
do
on
the
face
of
the
returns
as
prepared
and
filed.
Mrs
Musslewhite,
quite
obviously,
did
not
know
the
effects
of
making
an
election,
or
not
making
an
election,
when
her
husband
died.
She
did
not
know
the
results
of
it
one
way
or
another.
She
was,
in
my
view,
totally
innocent,
and
I
agree
with
counsel
for
the
appellant
that
though
the
Act
is
silent
as
to
the
form
of
the
election,
surely,
and
if
one
wanted
to
make
an
election,
it
would
seem
to
me
the
way
a
lawyer
or
an
accountant
would
ensure
that
the
election
was
noted
by
the
Minister,
backed
up
by
a
written
request,
a
written
statement.
There
is
none
of
that
here;
there
are
just
two
returns
filled
out
in
such
a
manner
that
Mrs
Musslewhite
did
not
really
know
what
was
going
on.
Mr
Taschuk
does
not
have
a
scintillating
accounting
background.
On
the
contrary,
he
has
more
or
less,
it
would
appear,
acquired
knowledge
from
the
Institute
of
Chartered
Accountants
manuals,
and
so
on,
which
to
his
credit
he
is
reading
and
keeping
up
on
but
that
does
not,
in
my
view,
place
Mrs
Musslewhite
in
his
shoes,
and
accepting
responsibility
for
the
manner
in
which
he
filled
out
the
returns,
I
know
there
is
an
abundance
of
law
and
you
cannot
ignore
what
your
accountant
does,
but
good
heavens,
you
could
not
expect
99
per
cent
of
the
people
signing
that
return,
as
was
done
by
Mrs
Musslewhite,
to
under-
tand
any
of
the
implications
of
section
70.
She
would
not
even
know
what
it
was
about.
I
accept
her
evidence
that
she
gave
no
instructions
to
make
this
election
on
which
the
Crown
relies.
I
accept
Mr
Taschuk's
evidence
that
he
did
not
really
know
what
he
was
doing,
and
again
I
say
to
this
point
in
time
the
Minister
had
every
right
in
dealing
with
the
returns
in
the
manner
that
he
did
because
that
is
all
the
Minister
can
do
is
deal
with
the
material
the
taxpayer
has
filed.
The
notice
of
appeal
is
extremely
succinct
and
clear
and
it
has
been
completely
backed
up
by
the
evidence
adduced
here
today,
and
so
I
allow
the
appeal.
Appeal
allowed.
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