After confirming the Minister's position that the taxpayer and his wife were engaged in spread transactions as a partnership, and therefore that losses generated by the taxpayer could not be exclusively allocated to him (see summaries under ss. 96 and 248(1) - "property"), Rothstein JA found that s. 39(4) elections that were made with late-filed returns were valid.
The Minister argued that the s. 150(1) requirement that returns be filed on 30 April of the year following the taxation year, and the s. 39(4) requirement that the election be filed with a return, established a 30 April deadline for the election. Rothstein JA stated (at para. 114):
Where the Act prescribes sanctions for late filing, those sanctions will apply. Where it does not, the Court will not read into the Act sanctions that do not appear.