Hugessen
J.T.C.C.:
—
This
is
an
appeal
from
a
judgment
of
the
Tax
Court
of
Canada
that
dismissed
the
Appellant’s
appeal
to
that
Court.
The
single
issue
raised
is
the
alleged
failure
of
the
Minister
to
reconsider
the
Appellant’s
assessment
“with
all
due
dispatch”
after
receipt
of
a
notice
of
objection
as
required
by
paragraph
165(3)(a)
of
the
Income
Tax
Act,
S.C.
1970-71-72,
c.
63
as
amended
to
1985.
165(3)
Duties
of
Minister
—
Upon
receipt
of
a
notice
of
objection
under
this
section,
the
Minister
shall,
(a)
with
all
due
dispatch
reconsider
the
assessment
and
vacate,
confirm
or
vary
the
assessment
or
reassess,
or
and
he
shall
thereupon
notify
the
taxpayer
of
his
action
by
registered
mail.
In
the
case
of
Ginsberg
v.
R.
(sub
nom.
Ginsberg
v.
Canada)
(June
5,
1996),
Doc.
A-242-94
(F.C.A.),
decided
last
week,
we
held
that
Parliament
did
not
intend
that
the
Minister’s
failure
to
examine
a
return
and
assess
tax
“with
all
due
dispatch”,
as
required
by
subsection
152(1)!,
should
deprive
him
of
the
statutory
power
to
issue
an
assessment.
The
reasoning
in
that
case
applies
with
even
greater
force
here:
Parliament
clearly
did
not
intend
that
the
Minister’s
failure
to
reconsider
an
assessment
with
all
due
dispatch
Income
Tax
Act,
S.C.
1970-71-72,
c.
63
as
amended
to
1985:
152(1)
The
Minister
shall,
with
all
due
dispatch,
examine
a
taxpayer’s
return
of
income
for
a
taxation
year,
assess
the
tax
for
the
year,
the
interest
and
penalties,
if
any,
payable
and
determine
(a)
the
amount
of
refund,
if
any,
to
which
the
taxpayer
may
be
entitled
by
virtue
of
section
129,
131,
132
or
133
for
the
year,
or
(b)
the
amount
of
tax,
if
any,
deemed
by
subsection
119(2),
120(2),
120.1(4),
122.2(1),
127.1(1),
127.2(2),
144(9),
210.2(3)
or
(4)
to
have
been
paid
on
account
of
his
tax
under
this
Part
for
the
year.
should
have
the
effect
of
vacating
such
assessment.
If
the
Minister
does
not
act,
the
taxpayer’s
recourse
is
to
appeal
pursuant
to
section
169:
169
Appeal
—
Where
a
taxpayer
has
served
notice
of
objection
to
an
assessment
under
section
165,
he
may
appeal
to
the
Tax
Court
of
Canada
to
have
the
assessment
vacated
or
varied
after
either
(a)
the
Minister
has
confirmed
the
assessment
or
reassessed,
or
(b)
90
days
have
elapsed
after
service
of
the
notice
of
objection
and
the
Minister
has
not
notified
the
taxpayer
that
he
has
vacated
or
confirmed
the
assessment
or
reassessed;
but
no
appeal
under
this
section
may
be
instituted
after
the
expiration
of
90
days
from
the
day
notice
has
been
mailed
to
the
taxpayer
under
section
165
that
the
Minister
has
confirmed
the
assessment
or
reassessed.
[Emphasis
added.]
The
underlined
text
would
of
course
be
both
unnecessary
and
nonsensical
if
the
effect
of
the
Minister’s
failure
was
already
to
vacate
the
assessment.
The
appeal
will
be
dismissed
with
costs.
Appeal
dismissed.
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