The taxpayer was assessed four times in respect of 1999 - in 2000, 2002, 2004, and 2009. The taxpayer appealed the 2004 reassessment, which for the first time denied the taxpayer's claimed deduction of bonuses. The Tax Court allowed the appeal in 2009 and vacated the 2004 reassessment on the basis that it was statute-barred. Seven months later the 2009 reassessment (which was a nil assessment and mirrored the 2002 reassessment) was made. Eleven months after that (and over a year following the Tax Court decision) the Minister issued consequential reassessments for 2000 and 2005 on the basis that the taxpayer's balances for those years the had been changed (e.g., an increase in the quantum of a capital gain realized in 2000.)
Woods J. found that consequential assessments could not be supported under s. 152(4.3). The 2009 assessment was statute-barred and, therefore, could not be the foundation for the consequential reassessments. The Minister argued that there was inherent authority to issue the 2009 reassessment because such reassessment was necessary in order to implement the Tax Court decision. Woods J, however, noted that where a Tax Court decision varies or (as here) vacates an assessment, "s. 171(1) does not contemplate that a further reassessment would be made" (para. 43) - nor was the 2009 reassessment required in order to authorize a refund to the taxpayer under s. 164(4.1) (para. 47). It was also irrelevant that the taxpayer did not object to the 2009 reassessment, because "Canadian Marconi is strong authority that an out-of-time reassessment is void absent an allegation of fraud or misrepresentation" (para. 62).
Woods J. also accepted the taxpayer's alternative argument that s. 152(4.3) did not apply because the 2009 assessment, even if it were valid, did not change the taxpayer's balances. The relevant change to the taxpayer's balances instead occurred seven months previously with the Tax Court decision.