Two months after their marriage, the taxpayer received (on January 8, 1993) from her husband (“CC”) the transfer of a property valued in excess of his subsequently assessed tax liabilities for various taxation years including his 1988 and 1989 years (as a result of losses from a partnership investment being denied). After the Minister assessed the taxpayer under s. 160, the taxpayer challenged the validity of waivers that CRA had received respecting those two taxation years.
Owen J found (based on Gaucher) that she was not precluded from disputing the validity of the assessments of her under s. 160(2) on the grounds that the waivers proffered by CRA were invalid, even though this issue had not been raised in the unsuccessful group appeal by CC and others of the denial of the partnership losses. In rejecting the Crown’s attempt to distinguish Gaucher on the ground that, here, the taxpayer, who at the time of the group appeals was an executrix of the CC estate, was thus a de facto party to the group appeals, he stated (at para. 90):
Even if the estate of CC was a de facto party to CC’s appeal by virtue of CC’s death, the Appellant’s role vis-à-vis CC’s appeal was in her capacity as the personal representative of CC’s estate. To the extent that the Appellant had an interest in CC’s appeal, it was in that representative capacity. Adopting Rothstein J.A.’s observation in paragraph 6 of Gaucher, CC’s appeal did not purport to impose liability on the Appellant even after she became the executrix of CC’s estate.