Whittaker v. R., [1996] 1 CTC 61, [1995] DTC 5337

Pratte J.A. (Chief Justice and McDonald, JJ.A., concurring)— We are all of the opinion that the application must succeed. The Tax Court held that the pension received by the respondent under the Defence Services Continuation Act was not taxable because the respondent understood, when he made the election to receive that pension, that it would not be taxable and, also, because for many years, the Minister assessed the respondent’s income tax without taking the amount of that pension into consideration.

That decision is wrong. The pension paid the the respondent was clearly taxable under section 56 of the Income Tax Act and could not be rendered not taxable by the representations allegedly made to the respondent or by the Minister’s failure to assess in accordance with the law. The application will be allowed, the decision of the Tax Court will be set aside and the matter will be remitted to that Court for decisions on the basis that the pension received by the respondent was taxable under section 56 of the Income Tax Act. Application allowed