The taxpayer challenged assessments of her under s. 160(2) respecting unpaid tax of her late husband for his 1988 and 1989 taxation year by arguing that the CRA assessments of him for those years were statute-barred given that CRA had not received a waiver for each year on a timely basis.
Biringer JA confirmed (based on Gaucher) that the taxpayer 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 might have been raised, but was not, in the Makuz (2006 TCC 263) group appeals in which the CRA assessments of her husband’s 1988 and 1989 taxation years had been confirmed. Similarly, there was no abuse of process in collaterally attacking the judgments in Markuz (with her waiver arguments) given that the taxpayer had not been a party to that litigation (otherwise than, latterly, as an executor of her husband’s estate) and that Owen J had determined that it was “untenable” to expect her to have raised the waiver-timing issue.
However, Biringer JA went on to find that only the assessment of the 1988 taxation year was invalid on waiver grounds.