T-71-88
Canadian Marconi Company (Plaintiff)
v.
Her Majesty The Queen in Right of Canada
(Defendant)
INDEXED AS: CANADIAN MARCONI CO. V. CANADA (T.D.)
Trial Division, Joyal J.—Ottawa, June 14 and July
5, 1989.
Income tax — Reassessment — M.N.R. reassessing plain
tiffs investment income from 1977 to 1981 as income from
property — Reassessment contrary to S.C.C. decision 1973-
1976 investment income business income — Plaintiff expect
ing reassessment in conformity with Court's decision, neither
filing notice of objection nor waivers — Statutory power of
M.N.R. to assess or reassess at any time notwithstanding
limitation and waiver provisions of s. 152(4) Income Tax Act
— Declaration of power not imposing duty on M.N.R. to
reassess — Exercise of power within M.N.R.'s discretion —
Decision to reassess or not to be made in accordance with
public policy — Policy decision not to be interfered with.
The plaintiff manufactures and processes electronic equip
ment. During the years 1973 to 1976, it reported the income it
derived from short-term securities as business income. The
Minister of National Revenue determined it was income from
property. In a decision rendered in 1986, the Supreme Court of
Canada found that the plaintiffs investment income constitut
ed income from an active business that should be entered into
the computation of "Canadian manufacturing and processing
profits".
As the issue was being debated, the plaintiff continued to file
tax returns for the years 1977 to 1981. On July 4, 1983, the
Minister reassessed the plaintiff for those years in conformity
with the position taken with respect to the years 1973-1976.
The plaintiff, expecting the Minister to issue a reassessment
consistent with the Supreme Court decision, did not file any
notice of objection nor waivers for the years 1977-1981. The
Minister later advised the plaintiff that since no waivers had
been filed, he lacked the authority to issue notices of reassess
ment for those years and that he did not have authority to
accept the waiver that the plaintiff is now filing in view of the
expiry of the four-year limitation.
The plaintiff seeks a declaration that the Minister has statu
tory power to reassess it in conformity with the Supreme Court
decision. It argues that subsection 152(4) does not constitute a
statutory bar to the Minister issuing a reassessment. The
Crown contends that subsection 152(4) precludes the Minister
from assessing outside the four-year limit except in cases of
fraud or waiver.
Held, a declaration should be granted that the Minister is
not statute-barred from reassessing the plaintiff for the taxa
tion years 1977-1981.
Subsection 152(4) is not meant to close the door to assess at
any time if the taxpayer should waive the protection afforded
under that provision. The particular limitations found in sub
section 152(4) are there to protect the taxpayer against the
unfettered authority of the Minister, conferred by the opening
words of the subsection, to assess "at any time". That protec
tion is not one of public policy; it is in the nature of a private
right which the taxpayer may waive.
The approach is consistent with subsection 152(8) which
states that an assessment is deemed to be valid and binding
notwithstanding any error, defect or omission therein or in any
proceeding under the Act. An assessment, therefore, remains
valid until a successful objection or appeal by the taxpayer, or
until the latter raises the shield of protection given him by
subsection 152(4). It is voidable but not void ab initio. The way
appears to have been left open to make an assessment at any
time at the request and with the consent of the taxpayer. That
was the view of the Tax Appeal Board when it dealt with the
former subsection 152(8) in the Gunnar case.
The Crown's argument, that under subsection 152(4), Parlia
ment intended to bring finality to the creditor-debtor relation
ship, could not be upheld, in light of the subsection's opening
words, "may at any time assess tax" and of the deemed validity
of any assessment under subsection 152(8). Nor could the
floodgate argument be accepted. The Minister's unlimited
power to assess and reassess implies a burden to exercise that
power in accordance with public policy.
It is part of the Minister's residual authority, in circum
stances where a taxpayer has not filed a notice of objection nor
an appeal, and requests a reassessment within the limitation
period, to issue such a reassessment based on a recently
declared judicial interpretation favourable to another taxpayer.
The Minister may exercise this discretion according to public
policy. The Minister has, however, taken the position, as
expressed in Information Circular IC75-7R3, that he will not
issue a reassessment "based solely upon a successful appeal to
the Courts by a taxpayer".
A taxpayer's failure to file a waiver does not constitute a
statutory bar to the Minister making what is otherwise an
untimely assessment. The legality of an Act should not be
confused with its questionable effectiveness. In this respect,
there is no distinction between the waiver of a right of appeal as
in the Smerchanski case or the kind of anticipatory waiver filed
by the plaintiff. Both are options available to any taxpayer.
The Minister has the statutory authority to assess and reas
sess at any time. However, the Minister's discretion to act upon
the plaintiffs request to reassess it in conformity with the
Supreme Court of Canada decision is not affected. His policy
decision is not one in which this Court or any other Court
should intervene.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Income Tax Act, S.C. 1970-71-72, c. 63, ss. 125.1(1) (as
added by S.C. 1973-74, c. 29, s. 1), 150(1), 152 (as am.
by S.C. 1978-79, c. 5, s. 5(1); 1984, c. 1, s. 84(3)).
CASES JUDICIALLY CONSIDERED
APPLIED:
Charron v. M.N.R. (1981), 81 DTC 271 (T.R.B.);
Gunnar Mining Limited v. Minister of National Revenue
(1969), 70 DTC 1020 (T.A.B.); Morch, Jacob John v.
Minister of National Revenue, [1949] Ex.C.R. 327; 49
DTC 649; Davis, W.W. v. The Queen (1984), 84 DTC
6518 (F.C.T.D.); Smerchanski v. Minister of National
Revenue, [1974] 1 F.C. 554; 74 DTC 6197 (C.A.); affd
[1977] 2 S.C.R. 23; 76 DTC 6247.
DISTINGUISHED:
Reckitt and Colman (New Zealand) Ltd. v. Taxation
Board of Review and Another, [1966] N.Z.L.R. 1032
(C.A.).
REFERRED TO:
Canadian Marconi Company v. The Queen (1982), 82
DTC 6236 (F.C.T.D.); affd (1984), 84 DTC 6267
(F.C.A.); rev'd [1986] 2 S.C.R. 522; 86 DTC 6526;
Minister of National Revenue v. Parsons, [ 1984] 2 F.C.
331; 84 DTC 6345 (C.A.); Grand Trunk Pacific Railway
Co. v. Dearborn (1919), 58 S.C.R. 315; Lechter, Ben v.
Minister of National Revenue, [1965] 1 Ex.C.R. 413; 64
DTC 5311; Bronze Memorials Ltd. [No. 2] v. M.N.R.
(1969), 69 DTC 5420 (Ex. Ct.); Galway v. Minister of
National Revenue, [ 1974] 1 F.C. 593; 74 DTC 6247
(C.A.); Cohen v. The Queen (1980), 80 DTC 6250
(F.C.A.); Thyssen Mining Construction of Canada Ltd.
v. The Queen, [1975] F.C. 81 (T.D.); Melahn, Elmer M.
v. Commissioner of Internal Revenue, 9 T. C. 769 (1947
U.S.T.C.); Kammins Ballrooms Co Ltd v Zenith Invest
ment (Torquay) Ltd, [1970] 2 All E.R. 871 (H.L.);
Howard v Secretary of State for the Environment,
[1972] 3 All E.R. 310 (Q.B.); R. v. Taylor, [1985] 1 F.C.
331; 84 DTC 6459 (T.D.); Whitney v. Inland Revenue
Commissioners, [1926] A.C. 37 (H.L.); Fasken, David v.
Minister of National Revenue, [1948] Ex.C.R. 580;
[1949] 1 D.L.R. 810; Stubart Investments Ltd. v. The
Queen, [1984] 1 S.C.R. 536; 84 DTC 6305; Galway v.
Minister of National Revenue, [1974] 1 F.C. 600;
(1974), 74 DTC 6355 (C.A.).
AUTHORS CITED
Driedger, E. A. Construction of Statutes, 2nd ed.
Toronto: Butterworths, 1983.
Halsbury's Laws of England, vol. 1, 4th ed. London:
Butterworths, 1973.
COUNSEL:
Wilfrid Lefebvre, Q.C. and Patrice Marceau
for plaintiff.
Pierre Barsalou for defendant.
SOLICITORS:
Ogilvy, Renault, Montréal, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
JOYAL J.: The plaintiff seeks from this Court a
declaratory judgment. The issues involves an inter
pretation of the Income Tax Act [S.C. 1970-71-
72, c. 63]. It requires specifically an interpretation
of that statute dealing with the power of the
Minister of National Revenue to reassess a
taxpayer.
The irony of this case is that whereas the power
of the Minister to reassess has traditionally been
resisted by the taxpayer, in this case, it is the other
way around. It is the taxpayer who prays the
Minister to reassess it. It is the Minister who
resists it on the grounds that he has no authority to
do so.
In order to focus on this abnormal and improb
able turn of events, some background information
is required. That background information is con
tained in an agreed statement of facts submitted
by the parties at the trial of the action. Herewith a
summary of it.
THE FACTS
The plaintiff is a well-known company involved
in the manufacturing and processing of electronic
equipment. In each of the taxation years between
1973 and 1976, it derived considerable income
from short-term securities. In each of these years,
the plaintiff earmarked these revenues as business
income. The Minister of National Revenue disa
greed. He decided it was income from property.
This affected the plaintiff's tax base pursuant to
subsection 125.1(1) of the Income Tax Act [as
added by S.C. 1973-74, c. 29, s. 1] and made it
liable for greater taxes.
The plaintiff filed its notices of objection against
these reassessments. The Minister refused to
budge. The plaintiff then went to the Federal
Court, Trial Division [(1982), 82 DTC 6236]. It
too refused to budge. The plaintiff then went to
the Federal Court of Appeal [(1984), 84 DTC
6267]. Again the plaintiff was unsuccessful.
Finally, in its ultimate attempt, the plaintiff
sought relief from the Supreme Court of Canada.
In its unanimous judgment, dated November 6,
1986 and reported at [1986] 2 S.C.R. 522; 86
DTC 6526, the Court allowed the plaintiffs
appeal and declared that the investment income
earned by the plaintiff was income from an active
business for the purposes of the Income Tax Act
and it therefore entered into the computation of
"Canadian manufacturing and processing profits".
As the issue was being debated through three
successive court levels, however, the plaintiff con
tinued to file its corporation tax returns. It did so
for the years 1977 to 1981 inclusive. On July 4,
1983, the Minister reassessed the plaintiff for each
of those years in conformity with the position
taken for the preceding four years, 1973-1976.
As of the date of this 1983 reassessment, the
four-year limitation period pursuant to subsection
152(4) of the Income Tax Act had not yet expired.
In the belief that the Minister, in accordance with
the policy set out in Information Circular IC
75-7R3, would reassess the plaintiff for the last
five years in a manner consistent with the ultimate
Court decision with respect to the previous four
years, the plaintiff did not file any notice of objec
tion nor did it file waivers with respect to those
years.
It is admitted that throughout this period of
time, the Minister was aware that the plaintiff was
pursuing its appeal from the previous four years
and that the plaintiffs policy with respect to all
the years 1973-1981 was to seek and obtain a final
disposition of the issue one way or the other.
When the plaintiff finally won its case before
the Supreme Court of Canada covering the 1973-
1976 taxation years, it expected that the Minister
would issue a reassessment for the subsequent five
years, a reassessment which would be in conformi
ty with the Supreme Court's ruling and consonant
with the tax liability position of the plaintiff for
the previous years.
It was in October 1987, that the plaintiff was
advised that since no waivers had been filed with
respect to those five years, the Minister did not
have the authority to issue notices of reassessment
for those years. The plaintiff was further advised
that the Minister did not have authority to accept
a waiver once the four-year limitation period had
expired.
THE ISSUE
Simply stated, the issue is whether or not the
Crown is correct in its interpretation of the Income
Tax Act or whether or not the Minister enjoys a
residual right to provide relief to the plaintiff. It is
a case where contrary to tradition and practice, the
Crown appears quite happy to have its wings
clipped, as it were. Again contrary to tradition and
practice, it is a case where the plaintiff appears
quite happy to renounce its rights under the stat
ute and bestow on the Crown unfettered discretion
to reassess at will.
In order to determine the issue, the Court is
invited by the parties to scrutinize the relevant
provisions of the Income Tax Act, to interpret
them in accordance with contemporary rules and
to decide which side of the issue is more consistent
with the economy of the statute and the intention
of Parliament in adopting it.
In going through this process, it must be kept in
mind that the plaintiff's action calls for declarato-
ry relief only. The plaintiff concedes that the
Court cannot order the Crown to reassess if it
should be found that it has the power to do so.
THE STATUTE
The relevant provisions of the Income Tax Act
are found in Part I, Division I—Returns, Assess
ments, Payment and Appeals.
Subsection 150(1) provides that "A return of
the income for each taxation year ... shall, with
out notice or demand therefor, be filed with the
Minister in prescribed form and containing pre
scribed information." Subsection 152(1) [as am.
by S.C. 1978-79, c. 5, s. 5(1)] states very clearly
that the "Minister shall, with all due dispatch,
examine a taxpayer's return of income for a taxa
tion year, assess the tax for the year, the interest
and penalties, if any".
Subsection 152(2) imposes another duty on the
Minister, namely to "send a notice of assessment
to the person by whom the return was filed". This
provision is complemented by subsection 152(3)
which provides that "Liability for the tax under
this Part is not affected by an incorrect or incom
plete assessment or by the fact that no assessment
has been made."
More specific provisions relating to assessments
and reassessments are found in subsection 152(4)
[as am. by S.C. 1984, c. 1, s. 84(3)]. It might be
useful to reproduce the whole of this subsection at
this time:
152... .
(4) The Minister may at any time assess tax, interest or
penalties under this Part or notify in writing any person by
whom a return of income for a taxation year has been filed that
no tax is payable for the taxation year, and may
(a) at any time, if the taxpayer or person filing the return
(i) has made any misrepresentation that is attributable to
neglect, carelessness or wilful default or has committed
any fraud in filing the return or in supplying any informa
tion under this Act, or
(ii) has filed with the Minister a waiver in prescribed form
within 4 years from the day of mailing of a notice of an
original assessment or of a notification that no tax is
payable for a taxation year,
(b) within 7 years from the day referred to in subparagraph
(a)(ii), if
(i) an assessment or reassessment of the tax of the taxpay
er was required pursuant to subsection (6) or would have
been required if the taxpayer had claimed an amount by
filing the prescribed form referred to in that subsection on
or before the day referred to therein, or
(ii) there is reason, as a consequence of the assessment or
reassessment of another taxpayer's tax pursuant to this
paragraph or subsection (6), to assess or reassess the
taxpayer's tax for any relevant taxation year, and
(c) within 4 years from the day referred to in subparagraph
(a)(ii), in any other case,
reassess or make additional assessments, or assess tax, interest
or penalties under this Part, as the circumstances require,
except that a reassessment, an additional assessment or assess
ment may be made under paragraph (b) after 4 years from the
day referred to in subparagraph (a)(ii) only to the extent that it
may reasonably be regarded as relating to the assessment or
reassessment referred to in that paragraph.'
Finally, subsection 152(8) states that "An
assessment shall, subject to being varied or vacated
on an objection or appeal under this Part and
subject to a reassessment, be deemed to be valid
and binding notwithstanding any error, defect or
omission therein or in any proceeding under this
Act relating thereto."
THE CASE FOR THE CROWN
The matter before me involves a request by the
plaintiff directed to the Crown that its Minister of
National Revenue has the power to issue a reas
sessment for the taxation years 1977-1981 in con
formity with the Supreme Court of Canada judg
ment in the plaintiffs favour. The Crown takes the
position that its Minister does not have the statu
tory authority to do so.
' Amendments to the Income Tax Act, 1984, s. 45, subsec
tion 59(1), have reduced the seven and four-year limitation
rules to six and three years respectively but otherwise the
provisions remain the same.
For purposes of clarity, I should perhaps deal
first with the case for the defendant Crown. This is
perhaps unusual but after reviewing all the argu
ments put to the Court by able counsel, the case of
each party may be better understood if I should
proceed in that fashion.
The basic proposition advanced by the Crown is
that the plaintiff is seeking to circumvent the
mandatory requirements of the Income Tax Act
respecting the filing of a waiver and its failure to
file objections or appeals. The plaintiff's filing of a
waiver at this time is clearly for this purpose and
in any event, the waiver cannot bestow on the
Minister more power than he legitimately enjoys
under the statute.
Counsel for the Crown suggests that the power
of the Minister to assess is clearly limited by the
text of subsection 152(4). This provision is unam
biguous and clearly precludes the Minister from
assessing outside the four-year limit except in the
limited circumstances set out in paragraphs
152(4)(a) and (b), namely fraud or waiver. A
reading of subsection 152(4) clearly indicates that
a taxpayer who fails to object to or appeal an
assessment under the expressed provisions of the
statute cannot otherwise challenge that assessment
and the issue is forever closed. This was the view
taken by the Federal Court of Appeal in Minister
of National Revenue v. Parsons, [1984] 2 F.C.
331; 84 DTC 6345, where Pratte J. stated that, as
the statute provides certain rights of appeal
against an assessment, no other redress or relief
procedure is available.
Having failed to follow the prescribed route,
says counsel, the plaintiff cannot now retroactively
revive its rights which, had they been properly
exercised, may have permitted reassessments to be
made.
The other approach taken by the Crown is that
in the statutory context of subsection 152(4), there
are limits to the Minister's assessing powers.
Counsel urges the Court to apply the rule
articulated by E. A. Driedger in Construction of
Statutes, 2nd ed. (1983), at page 87, as endorsed
by Estey J. of the Supreme Court of Canada in
Stubart Investments Ltd. v. The Queen, [1984] 1
S.C.R. 536, at page 578; 84 DTC 6305, at page
6323, as follows:
Today there is only one principle or approach, namely, the
words of an Act are to be read in their entire context and in
their grammatical and ordinary sense harmoniously with the
scheme of the Act ....
According to counsel, the context of the section
152 and specifically of subsection 152(4) indicates
that the Minister cannot reassess outside the statu
tory limit unless certain requirements are met.
Any action taken by him outside the scope of this
provision is clearly invalid. Parliament's intention
is clearly to impose such limit upon the Minister's
otherwise unfettered power to assess at any time.
Such limit is a statutory bar to any assessment
made outside the four-year rule unless the taxpay
er has filed a waiver in the prescribed form within
that time. In asking the Court to intervene, the
plaintiff is in effect requesting that subparagraph
152(4)(a) be read out of the Act.
Counsel for the Crown refers to another rule of
interpretation in this respect as found in the
Supreme Court of Canada decision in Grand
Trunk Pacific Railway Co. v. Dearborn (1919), 58
S.C.R. 315, where the Chief Justice said this at
pages 320-321:
I cannot admit the right of the courts where the language of
a statute is plain and unambiguous to practically amend such
statute either by eliminating words or inserting limiting words
unless the grammatical and ordinary sense of the words as
enacted leads to some absurdity or some repugnance or incon
sistency with the rest of the enactment, and in those cases only
to the extent of avoiding that absurdity, repugnance and
inconsistency.
Counsel for the Crown says that it is clear from
the language of the statute that any attempt by the
Minister to assess or reassess outside the limits
imposed would be declared by the courts to be
invalid and illegal. Such was the finding in Lecht-
er, Ben v. Minister of National Revenue, [1965] 1
Ex.C.R. 413; 64 DTC 5311, in Bronze Memorials
Ltd. [No. 2J v. M.N.R. (1969), 69 DTC 5420 (Ex.
Ct.) and in Galway v. Minister of National Rev-
enue, [ 1974] 1 F.C. 593; 74 DTC 6247 (C.A.). In
the Galway case, the Chief Justice of the Federal
Court said at pages 596 F.C.; 6249 DTC:
It seems obvious that the Minister cannot, on a re-assess
ment, do anything other than assess in accordance with the
authority conferred on him by the Income Tax Act.
The Chief Justice to add at pages 598 F.C.;
6250 DTC:
In those circumstances, we have grave doubt as to whether the
Minister is legally entitled to re-assess for a part of the amount
of tax in question. If he is not legally entitled to do so, the
Court cannot require him to do so.
Pratte J., in Cohen v. The Queen (1980), 80
DTC 6250 (F.C.A.) adopted the reasoning in the
Galway case respecting a taxpayer's appeal of a
reassessment on the basis of a prior agreement
with the Minister. The Court of Appeal had ruled
[in Galway v. Minister of National Revenue,
[ 1974] 1 F.C. 600, at page 602; (1974), 74 DTC
6355, at page 6357] that "the Minister has a
statutory duty to assess the amount of tax payable
on the facts as he finds them in accordance with
the law as he understands it. It follows that he
cannot assess for some amount designed to imple
ment a compromise settlement". Pratte J. added
this at page 6251:
The agreement whereby the Minister would agree to assess
income tax otherwise than in accordance with the law would, in
my view, be an illegal agreement. Therefore, even if the record
supported the appellant's contention that the Minister agreed to
treat the profit here in question as a capital gain, that agree
ment would not bind the Minister and would not prevent him
from assessing the tax payable by the appellant in accordance
with the requirements of the statute.
The principle to be derived from these cases,
according to Crown counsel, is that the Minister
cannot knowingly assess in contravention of the
provisions of the Act.
Another weapon in the Crown's armoury is that,
on a proper construction of the statutory scheme
for the establishment of tax liability, it is in the
public interest that there be some finality on the
fixation of any such liability. That is why there are
"limitations in the taxing and appeal provisions",
as found by Addy J. in Thyssen Mining Construc
tion of Canada Ltd. v. The Queen, [1975] F.C. 81
(T.D.), at page 89. As a consequence, the declara-
tory judgment requested by the plaintiff would
frustrate and be in contravention of Parliament's
intention as reflected in the statute as well as be
contrary to jurisprudence dealing with the limits of
the Minister's assessing process.
Counsel for the Crown also refers to the waiver
filed by the plaintiff out of time. He submits that
such a waiver cannot be permitted to extend the
powers of the Minister since, to put it into coun
sel's own words,
(i) the waiver would in effect eliminate clear statutory limits to
the assessing powers of the Minister and purport to validate
what would be ultra vires acts on the part of the Minister;
(ii) the granting of a waiver outside the 3 year limit would
clearly frustrate Parliament's intention which specifically
restricted the time within which a waiver could be filed;
(iii) the relevant provision was not enacted for the exclusive
benefit of the Plaintiff.
Citing Halsbury's 4th ed., vol. 1, paragraphs 23
to 25, counsel states that as a general rule, a
waiver cannot give a public authority more power
than it legitimately possesses under the relevant
legislation. It can only be waived by a person
where it can be said that the provision is a proce
dural requirement enacted solely for his benefit.
Of assistance to the Court in this respect, says
counsel, is the 1947 case of Melahn, Elmer M. v.
Commissioner of Internal Revenue, 9 T. C. 769
(1947 U.S.T.C.). That Court rejected the notion
that limitation provisions were for the benefit of
the taxpayer and can be waived by him. The Court
stated at page 777:
The very nature of the question in the case at bar, further
more, shows that the statute of limitations involved herein is
not exclusively for the benefit of the taxpayer, as petitioner
contends. It is much to the interest of the Commissioner and to
the stability of public revenue that the waiver of limitations be
done only in the manner set forth by the statute. A principle of
statutory construction of ancient lineage provides that, when a
statute limits the method of performing an act, it thereby
precludes other methods.
In the United Kingdom, the House of Lords in
the case of Kammins Ballrooms Co Ltd v Zenith
Investment (Torquay) Ltd, [ 1970] 2 All E.R. 871
(H.L.), decided that statutory time limits imposed
by the Landlord and Tenant Act 1954, were
merely procedural and could be waived by a party.
In another case, however, Bristow J. of the
Queen's Bench Division in Howard v Secretary of
State for the Environment, [ 1972] 3 All E.R. 310
(Q.B.), decided that a time limit to file an appeal
under the Town and Country Planning Act 1968
was a mandatory provision and that the Secretary
of State had no power to entertain an appeal made
out of time.
Counsel for the Crown contends that the waiver
provision in the Income Tax Act is not exclusively
for the benefit of the taxpayer. It is there as a
matter of public policy and the waiver must neces
sarily comply with the strict conditions which the
statute imposes. A waiver filed under any other
circumstances than those provided in the statute is
of no consequence and cannot have the effect of
clothing the Minister with a power which he does
not otherwise possess.
THE CASE FOR THE PLAINTIFF
Counsel for the plaintiff submits as a general
proposition that there is no statutory bar to the
Minister issuing a reassessment. This proposition,
counsel suggests, is reflected in the Minister's
Circular No. 75-7R3 dated July 9, 1984, where
paragraph 4 thereof reads as follows:
Reassessment to reduce tax payable
4. A reassessment to create a refund ordinarily will be made
upon receipt of a written request by the taxpayer, even if a
notice of objection has not been filed within the prescribed
time, provided that
(a) the taxpayer has, within the four year filing period
required by subsection 164(1), filed the return of income;
(b) the Department is satisfied that the previous assessment
or reassessment was wrong;
(c) the reassessment can be made within the four-year
period or the seven-year period, as the case may be, referred
to in paragraph 1 above or, if that is not possible, the
taxpayer has filed a waiver in prescribed form;
(d) the requested decrease in taxable income assessed is not
based solely on an increased claim for capital cost allowances
or other permissive deductions, where the taxpayer originally
claimed less than the maximum allowable; and
(e) the application for a refund is not based solely upon a
successful appeal to the Courts by a taxpayer.
Ordinarily a taxpayer must set out specifically what is con
sidered to be wrong in the assessment for the year.
The plaintiff argues that what must be kept in
mind are the realities of the situation. The plaintiff
is unjustly out-of-pocket. It has been unjustly
charged with taxes which the Supreme Court of
Canada has decided are not owing. Throughout
the years from 1982 to 1986, when the plaintiff's
challenge laboriously worked its way up the court
system, both the Crown as well as the plaintiff
were aware that the factual base provoking the
conflict in statute interpretation of the plaintiff's
investment income was being repeated from year
to year. The Crown was a participant in the
appeals taken by the plaintiff before the Federal
Court of Canada, in both the Trial and the Appeal
Divisions as well as before the Supreme Court of
Canada. The Crown knew that the final determi
nation, one way or the other, would settle the issue
not only for the years under appeal but for the
subsequent years as well.
It would therefore be in keeping with the whole
scheme of income taxation for the Crown to have
at least the legal right to reassess even though it
might not have the statutory obligation to do so.
Counsel for the plaintiff suggests further that on
a proper reading of the particular limitations
found in subsection 152(4), one should conclude
that they are there to protect the taxpayer. They
are necessary safeguards to the wide and unfet
tered authority conferred on the Minister, by the
opening words of the subsection, namely, to assess
"at any time". Were it not for the prescriptive
periods imposed, a taxpayer could be left in per
manent limbo as to his tax position over any
number of years. Taxes are debts due to the Crown
and as a consequence, a taxpayer would never be
able to define or certify the true amount of his
liabilities.
Counsel urges the Court to find that the safe
guards found in subsection 152(4) are there as a
shield to protect the taxpayer. Outside of the limits
imposed, the Minister must prove either fraud or
waiver. In the absence of either, the taxpayer can
resist any notice of assessment and have it
declared null and of no effect. It does not follow,
however, that such notice of assessment would be
void ab initio. It would simply be voidable and its
voidable character would only be crystallized if the
taxpayer decided to avail himself of his statutory
defences.
This approach, says counsel, is consistent with
other provisions of the Act including, inter alia,
subsection 152(8) which declares that "An assess
ment ... shall ... be deemed to be valid and
binding". It is also consistent with the statutory
duty imposed on the Minister to fix the tax pay
able under the Act. No more, no less. As a generic
principle, therefore, the protection afforded a tax
payer under subsection 152(4) is not one of public
policy but in a nature of a private right which a
taxpayer may exercise at will.
In fact, argues plaintiffs counsel, the situation
is analogous to an action taken on a bill of
exchange well after the applicable limitations
period. The defendant is perfectly free to raise or
not to raise this in his defence. If he fails to do so,
it is no bar to the action proceeding on the merits.
In any event, says counsel, the claim on the out
standing bill subsists. It is only the right of action
which might be prescribed.
In support of his proposition that subsection
152(4) is a shield to protect a taxpayer and which
a taxpayer may discard, counsel for the plaintiff
refers to Charron v. M.N.R., a Tax Review Board
decision reported at (1981), 81 DTC 271 where, at
page 273, member D. E. Taylor looks upon section
152 of the Act as a "special protection accorded
taxpayers" and which cannot lightly be set aside
by the Minister.
Counsel also refers to Gunnar Mining Limited v.
Minister of National Revenue (1969), 70 DTC
1020, where J. O. Welden, Q.C. of the Tax Appeal
Board states at page 1026 that "the waiver provi
sion in section 46(4) of the Act was plainly intend-
ed for the sole benefit and protection of taxpayers
and was not intended to prevent an assessment
sought by a taxpayer".
The Board's decision in that case goes on to say
[at page 1026]:
... since Parliament obviously intended to give the Minister the
broadest possible powers of assessment under section 46, the
way appears to have been left open thereunder for him to make
an assessment at any time at the request and with the consent
of the taxpayer involved having regard to the Minister's almost
impregnable position under subsection (7) of section 46 which
purports to cure any error, defect or omission therein. It has not
been possible for me to imagine how an assessment made under
those circumstances could run counter to section 46 or the plain
overall purpose thereof. 2
The plaintiff also finds support with respect to
the presumed validity of any tax assessment in the
case of Morch, Jacob John v. Minister of National
Revenue, [1949] Ex.C.R. 327; 49 DTC 649 where
the President of the Exchequer Court at pages
333-334 Ex.C.R.; 652 DTC is quoted as saying
that, until a taxpayer can discharge the onus that
an assessment is erroneous in fact or in law, it
remains a valid assessment, a statement substan
tially repeated by the Trial Division of the Federal
Court in R. v. Taylor, [1985] 1 F.C. 331, at page
336; 84 DTC 6459 (T.D.), at page 6461.
Counsel further submits that indicative of the
judicial approach to the legal character of an
assessment and to the nature of the defences avail
able to a taxpayer is the judgment of Reed J. of
this Court in Davis, W. W. v. The Queen (1984),
84 DTC 6518 (F.C.T.D.). The taxpayer in that
case had been reassessed in 1966 with respect to
his 1950 taxation year and in so doing, the Crown
alleged misrepresentation on the part of the tax
payer which removed the taxpayer from the pro
tective limitation of subsection 152(4). The parties
settled the issue before trial and, in 1968, minutes
of a settlement were filed in Court and confirmed
2 Section 46 of the Income Tax Act, R.S.C. 1952, c. 148, as
amended by S.C. 1956, c. 39, s. 11, and by S.C. 1960, c. 43, s.
15, applied the six-year limitation. A 1960 amendment brought
in the four-year waiver rule.
by judgment. In December 1969, a notice of reas
sessment in conformity with the judgment was
issued and the taxpayer appealed against that
reassessment on the grounds that the Minister,
prior to the filing of the judgment, had not proved
misrepresentation on the taxpayer's part and that
the reassessment was thereupon statute-barred.
In the face of this, Reed J. had this to say at
page 6519:
I do not think this claim is well founded. The Minister is not
required to prove misrepresentation before he sends out a notice
of reassessment which is dated beyond the 4 year time period
provided for in the statute. Misrepresentation must be proved
only if the matter goes to trial.
Later, at page 6520, Reed J. notes that "If, as
the plaintiff alleges, the Minister was required to
prove misrepresentation before a settlement judg
ment could be entered, there would be no reason
for him to engage in such a settlement .... If the
taxpayer's claim in this regard were right, it could
undercut the whole purpose and rationale of set
tling claims without going to trial".
Counsel for the, plaintiff urges me to conclude
from the foregoing that no more than private
interests are involved as far as a taxpayer's protec
tion under subsection 152(4) is concerned. A tax
payer may, by consent, agree to respect a reassess
ment even though issued way out of time with no
misrepresentation or fraud having been proven.
This, of course, was the view which had been
taken by the Federal Court of Appeal in an earlier
case, namely, Smerchanski v. Minister of Nation
al Revenue, [ 1974] 1 F.C. 554; 74 DTC 6197
(C.A.), where the taxpayer had consented to terms
of settlement of outstanding assessments covering
some fifteen years, had admitted the correctness of
the assessments and had waived his rights of
appeal.
After ruling that, on the facts, the settlement
terms could not be regarded as a thwarting of the
statute or of the statutory scheme or as a substitu
tion of taxation by contract for taxation according
to statute, Thurlow J., as he then was, said this at
pages 566 F.C.; 6203-6204 DTC:
Turning to the second way in which the appellant's submis
sion was put it appears to me, again, as a general proposition,
that it is not open to the Minister to stipulate as a condition of
making a re-assessment that the taxpayer admit liability for the
amount to be assessed or that he waive his right of appeal.
There is nothing in the statute which expressly or impliedly
prohibits the making of such a stipulation by him but on the
other hand nothing in the statute appears to me to expressly or
impliedly authorize him to exercise his statutory powers in that
way. To that extent I am in agreement with the appellant's
proposition. However, if this is the correct view it appears to me
that the right to object to such a stipulation is one that accrues
to the taxpayer concerned and if for some reason of his own,
such as the hope of avoiding a public prosecution, the taxpayer
consents to such a stipulation or waives his right to object there
appears to me to be no principle of public morality or of public
policy which would intervene to protect him from the conse
quences of his own act in so consenting or waiving. I am also of
the opinion that the right of a taxpayer under the Act to appeal
from an assessment is not a public right or one conferred for
the public benefit but is a private right of the taxpayer which
he is entitled to forego or to waive if he sees fit to do so.
At pages 567 F.C.; 6204 DTC of the judgment,
Thurlow J. added this:
Applying these considerations to the present situation it
appears to me that if it can be said, as I think it may, that the
Minister stipulated as a condition of his proceeding in the
matter by way of re-assessment to recover penalties incurred, as
well as taxes and interest, that the appellant admit his liability,
pay the amounts assessed forthwith and waive his right of
appeal, the appellant did not object thereto but, on the con
trary, as evidenced both by his execution of the commitment of
July 2, 1964 and by his execution of the document of July 10,
1964 and his immediate payment of the amounts assessed,
consented to and approved of the stipulation. He did this in
each instance with his eyes open and upon the advice of
competent counsel and there is, in my view, no principle of
public policy or public morality or of the policy of the statute
which is offended by the assessments having been made upon
such stipulation and consent or which would relieve the appel
lant from the consequences of his consent or of his formal
waiver of his right to appeal from the assessments so made. I
therefore agree with the conclusion of the learned Trial Judge
that the appellant is bound by the waiver of appeal contained in
the document executed by him and delivered on July 10, 1964.
This unfettered right of a taxpayer to waive his
right of appeal, even when the threat of criminal
prosecution hangs over him, was endorsed by the
Supreme Court of Canada when the Smerchanski
case went to appeal. Reported at [1977] 2 S.C.R.
23; 76 DTC 6247, the judgment of the Court was
delivered by the Chief Justice who stated at
pages 31 S.C.R.; 6251 DTC:
Since it is not contested that a taxpayer may validly waive
his rights of appeal against a tax assessment and that no
question of public policy is involved to preclude such a waiver,
the only issue of importance in this appeal is whether the tax
authorities, seriously contemplating prosecution, and by indict
ment as in the present case, are entitled to exact a waiver of
rights of appeal as a binding term of settling a clear tax liability
when overtures for settlement are made by the taxpayer and, in
consequence, to abandon their intention to prosecute.
The Chief Justice went on to say at pages 34
S.C.R.; 6252 DTC:
The result to which I would come in this case is encased in
broad statutory provisions in both England and the United
States. Authorization for pecuniary settlements instead of
instituting criminal proceedings has been part of the tax law in
England since 1944 and is now found in the Taxes Manage
ment Act, 1970 (U.K.), c. 9, s. 105. In the United States, ss.
7121 and 7122 of the Internal Revenue Code of 1954 authorize
settlements and compromises of tax liability as against civil or
criminal proceedings prior to reference to the Department of
Justice for prosecution or defence. I do not regard these
provisions as necessarily pointing to the common law invalidity
of all contractual settlements made in the knowledge of prob
able prosecution and in order to avoid it. Rather they represent
an acknowledgement of practice by seeking to put beyond
dispute the power of the tax collector to settle or compromise
tax liability, even if there be wilful evasion leaving the taxpayer
open to possible or probable prosecution.
I would dismiss the appeals with costs.
CONCLUSIONS
I should not wish to flatter counsel unduly but
they have both convinced me that there is
ambiguity in the statute dealing with the right of
the Minister to reassess in the circumstances of the
case at bar. To resolve that ambiguity is not
without difficulty.
Subsection 152(1) states clearly that the Minis
ter shall examine a taxpayer's return and assess
tax for the year. Subsection 152(4), on the other
hand, says that a minister may at any time assess
tax.
Similarly, subsection 152(1) speaks of a taxpay
er's tax return. So does subsection 152(4) and
subsection 152(5) and subsection 152(6). All of
them indicate that the Minister's duty or discre
tion under subsection 152(1) or subsection 152(4)
respectively may only be exercised on the basis of
tax returns having been previously filed. It is only
in subsection 152(7) that the Minister may assess
a tax even though no return has been filed. This
might lead one to suggest that there is a duty on
the Minister to assess where a return has been
filed but he enjoys a statutory discretion when it is
otherwise.
Those observations are not necessarily pertinent
to the case before me but they nevertheless outline
the difficulties one faces in dealing with such
dichotomous terms in the context of the same
section of the statute. So too with the limitations
and waiver provisions found in subsection 152(4).
My initial interpretation of the Crown's argu
ment is that if the Minister may only assess within
certain limited periods of time unless misrepre
sentations or fraud is present or a waiver has been
filed, he may not assess at any other time. As of
the limitation dates prescribed in that subsection,
the Minister's powers are exhausted and whether
or not the situation calls for redress in favour of
the Receiver General or in favour of the taxpayer,
the tax liability is determined once and for all and
with a finality that reality and logic will not
displace.
In the eyes of the plaintiff, however, the issue is
not so black and white. The plaintiff interprets the
limitation period provided in subsection 152(4) as
expressing the intention of Parliament to protect
the taxpayer from the unruly exercise of the Min
ister's prerogatives to keep assessing or reassessing
a taxpayer at will. It is not meant to close the door
to an assessment at any time if the taxpayer should
waive the protection which the subsection affords
him.
As I view the arguments advanced by both sides,
the issues may be broken down as follows:
1. In resolving the ambiguity in the text of
subsection 152(4), should one read into it the
intention of Parliament to write finis to the
whole assessment scheme if the limitation peri
ods mentioned therein are not respected? If so,
that would be the end of the matter.
2. On the other hand, if it should be found that
the limitations imposed are for the benefit of the
taxpayer, it would continue to be the Minister's
prerogative to assess at any time, leaving it to
the taxpayer to avail himself of his defences if
he so wishes.
In considering these alternatives, the factual
basis on which these proceedings are taken cannot
be completely overlooked. It is a fact that the
assessments made by the Minister for the years
1973-1976 as well as for the years 1977-1981 are
wrong, at least they are wrong in the sense that
they are not according to law. It is admitted by the
parties, and I have already referred to case law in
that respect, that the Minister's powers only
extend to fixing the tax liability under the Act.
Therefore, whether or not the plaintiff is stuck
with the assessments under review, namely for the
years 1977-1981, the fact is that when the
Supreme Court decision was handed down in 1986,
it became evident that the tax liability imposed on
the plaintiff was wrong in law and that the assess
ments had not been made under the Act. The
plaintiff, in its returns for each of these years,
declared its liability for tax. That declaration was
a perfectly proper one. Next followed the assess
ments of 1983. As stated by Lord Dunedin in the
case of Whitney v. Inland Revenue Commission
ers, [1926] A.C. 37 (H.L.), at page 52, "there is
the declaration of liability .... Next, there is the
assessment. Liability does not depend on assess
ment. That, ex hypothesi, has already been fixed.
But assessment particularizes the exact sum which
a person liable has to pay." It follows therefore
that the tax liability of the plaintiff is in the
amount declared by it and not in the amount fixed
in the Minister's assessments.
The other elements which bemuses me some
what is the position taken by the Crown when the
plaintiff filed its waiver and requested that it be
reassessed in conformity with the Supreme Court
judgment. It seems to me, at first blush, that the
decision of the Crown to accede to or refuse that
request was purely discretionary. I have referred
earlier to the mandatory and permissive authority
of the Minister to assess under section 152. It
appears to be mandatory under subsection 152(1)
and subsection 152(2) but discretionary under sub-
section 152(4). The Minister might conceivably
have simply refused to exercise his discretion in
favour of the plaintiff. The grounds would have
been persuasive: the plaintiff having failed to file
the requisite objections or appeals or waivers, the
plaintiff is foreclosed and the Minister, for policy
or other reasons, it not prepared to take any
initiative which might provide relief.
The Crown, however, did not take that position.
It refused to reassess on the grounds that the
Minister was bereft of any statutory authority to
do so. In essence, the message to the plaintiff was
that notwithstanding the obvious error in the 1977-
1981 assessments or a wrongly imposed tax liabili
ty or an unjust enrichment in his hands, the Minis
ter had these same unjustly enriched hands tied
under the statute and had no power to provide
relief.
As will be seen from the arguments advanced,
the debate on the issue seems to slide some dis
tance away from the narrow field of statute inter
pretation on which a declaratory judgment may be
founded. A waiver of a taxpayer's rights under
subsection 152(4) may be a matter of public policy
or simply a matter of private choice. That issue
does not determine if the Minister has any residual
power "to assess at any time".
Similarly, if the statute which provides an
assessment, under subsection 152(8) is deemed to
be valid and binding, it does not necessarily follow
that an untimely reassessment is, on its face,
beyond the Minister's powers.
Finally, a declaration from this Court that the
Minister is not statute-barred from issuing an
assessment does not necessarily imply that he has a
duty to do so.
With these observations, nay ruminations, in
mind, the Court must now come to terms with the
questions. I should perhaps proceed as follows:
(1) I should find that in accordance with the
jurisprudence outlined in the plaintiffs case, the
protection given to a taxpayer under subsection
152(4) is one which the plaintiff may waive. The
cases of Charron v. M.N.R., Gunnar Mining Lim
ited v. Minister of National Revenue, Davis, W.
W. v. The Queen, Morch, Jacob John v. Minister
of National Revenue, Smerchanski v. Minister of
National Revenue, (supra) consistently hold, and
express in various ways, that doctrine.
(2) I subscribe to the view expressed by
Welden, Q.C. in the Gunnar case that having
regard to the Minister's almost impregnable posi
tion under subsection 46(7), now subsection
152(8), the way appears to have been left open to
the Minister for him to make an assessment at any
time at the request of and with the consent of the
taxpayer. I have underlined the foregoing words to
indicate that the ruling is not meant to impose on
the Minister a duty to do so.
(3) Subsection 152(8) of the Act bears a close
analysis. That subsection states that an assess
ment, which is always subject to a reassessment, is
deemed to be valid and binding notwithstanding
any error, defect or omission therein or in any
proceeding under this Act relating thereto. This
particular provision, in my view, expresses the
intention of Parliament to confer a prima facie
validity on any assessment action taken by the
Minister, subject only to its enforceability vis-Ã -
vis the taxpayer. This presumption of validity may
only be defeated by a successful objection or
appeal or by the taxpayer raising the shield of
protection given him by subsection 152(4). This
leads me to conclude that any assessment of the
Minister is voidable, but would not be void ab
initio.
(4) The strong point raised by counsel for the
Crown is the one dealing with public policy. The
main thrust of this particular argument is that
under subsection 152(4), Parliament clearly
intended to cut short any protracted suspense over
a taxpayer's tax liability, in other words, to bring
finality to the creditor-debtor relationship. I must
acknowledge that standing alone, such an interpre
tation of subsection 152(4) is plausible. That
provision, however, must be read in the light of its
opening words, namely that the "Minister may at
any time assess tax" and in the light of the deemed
validity of any assessment under subsection 152(8)
to which I have earlier referred. Furthermore, on
the issue before me, I do not see a clearly defined
public policy. The declaration sought by the plain
tiff is not such as to impose a duty on the Minister
to reassess. It is only to declare that the Minister
has the statutory power to assess, if following the
dictates of public policy, he should find that it is
proper and fitting that he should do so. The Minis
ter can hide just as well behind policy and refuse
to exercise his discretion to assess as he can hide
behind the statute for the same purpose. In either
case, I see no flaw in whatever policy context
might be found in the statute in that regard.
(5) On the issue of waiver, counsel for the
Crown invited me to consider a New Zealand case.
It is Reckitt and Colman (New Zealand) Ltd. v.
Taxation Board of Review and Another, [1966]
N.Z.L.R. 1032 (C.A.). This case deals with the
authority of the Commissioner of Inland Revenue
to waive strict compliance with the 30-day delay
under section 29 of the relevant statute within
which the taxpayer may appeal from a Board of
Review to the Supreme Court. The case cites the
Exchequer Court of Canada decision in Fasken,
David v. Minister of National Revenue, [1948]
Ex.C.R. 580; [1949] 1 D.L.R. 810 where Thorson
P. stated as follows at pages 605 Ex.C.R.; 834
D.L.R.:
An appeal from an income tax assessment is not a private
dispute between the appellant taxpayer and the Minister or a
/is in the ordinary sense ...; the public has an interest in the
disposition of the appeal and in seeing that taxpayers are held
liable for the tax which Parliament has imposed upon them
The New Zealand Court of Appeal finds in the
30-day rule a matter of public policy which the
Commissioner of Inland Revenue cannot waive.
The Court says at page 1039:
In purporting to waive the time limit the Commissioner is
putting the Crown in jeopardy once more, and that, in a general
way, may react to the disadvantage of other taxpayers. Accord
ingly, in my opinion, the Commissioner could not lawfully
waive the first requirement of section 29.
This decision might be consistent with our own
jurisprudence. The case before me, however, is not
whether the Crown can waive a statutory prescrip
tive period which the taxpayer has not met. It is a
case where the shoe is on the other foot. Any
waiver by the plaintiff of his rights under subsec
tion 152(4) of the Act and which has been consist
ently declared by our courts to be for his own
protection, does not finally determine the issue.
The issue is only determined if, as and when the
Minister, in his discretion, decides to reassess. It is
at that stage, in my respectful view, that policy
considerations, if any, apply.
(6) The other approach to public policy taken
by the Crown is that if it should be found that the
Minister may indeed assess at any time, tax liabili
ties would never be finally settled and the Minister
would be deluged with invitations to reassess and,
as it might be surmised, on grounds which are not
so starkly respectable as the plaintiff's. The quick
answer to this apprehension is that the Minister
must take the statute as he finds it. If Parliament
should bestow upon him unlimited power to assess
and reassess, there is implied a burden on the
Minister to exercise that power in accordance with
the dictates of public policy. If public policy
should lead him to conclude that on no account
should he reassess outside of the limits imposed by
subsection 152(4), no matter the grief to the tax
payer, such would be within his prerogative.
(7) One can easily imagine circumstances
where a particular taxpayer who has filed neither a
notice of objection nor an appeal, requests the
Minister well within the limitation period, to issue
a reassessment based on a recently declared judi
cial interpretation favourable to another taxpayer.
It would be my view that the Minister has a
discretion to do so. It is part of his residual author
ity. He may exercise this discretion according to
public policy. In this respect, it will be noted that
the Minister has already stated policy in his Infor
mation Circular IC75-7R3 where he declares in
paragraph 4(3) that he will not issue such reassess
ment in these circumstances.
(8) Again on the issue of a void as against a
voidable assessment, I should refer to subpara-
graph 152(4)(a)(î) of this Act wherein the Minis
ter may assess at any time in the case of misrepre
sentation or fraud. Once an assessment is made on
those grounds, the Minister is required to prove
them. Until the issue is decided, however, the
assessment remains a valid one and it obliges the
taxpayer to come to terms with it. The assessment
cannot be attacked as being void ab initio. It is
only voidable if the Minister cannot meet the
burden of proof. In the same way, therefore, the
Minister may assess at any time and that assess
ment is valid on its face, subject only to the
taxpayer availing himself of his statutory defences
in which event the assessment cannot stand.
(9) I interpret the waiver provisions under the
Act as a signal to the Minister that a taxpayer will
not raise limitations as a defence. This enables
either party to complete on-going examinations so
that a more proper assessment might ultimately be
made. In the absence of a waiver, a taxpayer risks
having to fight a more peremptory assessment. I
do not see, however, where a taxpayer's failure to
do so should be a statutory bar to the Minister
making what is otherwise an untimely assessment.
One must not confuse the legality of an Act with
its questionable effectiveness. In this respect, I
should find no distinction between the waiver of a
right of appeal as in the Smerchanski case or the
kind of anticipatory waiver filed by the plaintiff in
the case at bar. Both are options available to any
taxpayer. The plaintiff, as in the Gunnar case,
simply invites the Minister to reassess it in con-
formity with the law laid down by the Supreme
Court of Canada. The Minister's discretion to act
on it, however, is not affected and his policy
decision is not one in which this or any other Court
would deign to intervene.
JUDGMENT
I should therefore declare that in accordance
with my interpretation of the Income Tax Act, the
Minister of National Revenue is not statute-barred
from reassessing the plaintiff for the taxation years
1977-1981, notwithstanding the limitation and
waiver provisions of subsection 152(4) of the Act.
It follows from the reasons given that I need
make no finding respecting the validity of any
waiver filed outside the time limits prescribed in
the statute.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.