http://www.canlii.org/en/on/onsc/doc/2016/2016onsc3801/2016onsc3801.html?autocompleteStr=aubrey%20dan&autocompletePos=1
Aubrey Dan Family Trust v. Minister of Finance (June 10, 2016 – 2016 ONSC 3801, Lederman J.).
Précis: The taxpayer is a trust. For 2007 it filed as a resident of Alberta. Ontario reassessed the trust on the basis that it was a resident of Ontario. The trust appealed to the Ontario Superior Court of Justice. This was a decision on a motion by the trust for summary judgment on the basis that the assessment in question was statute-barred. The sole issue was whether a federal form of waiver executed by the trustees and delivered to Ontario operated to extend the limitation period for Ontario purposes. The Court held that the waiver was effective for Ontario purposes and dismissed the motion. The parties were to make written submissions if they could not agree on costs.
Decision: While counsel for the taxpayer clearly made a valiant effort one gets the sense that this was rather a Hail Mary pass since the waiver had been sent by the trustees to Ontario in an effort to delay the issuance of an assessment. Lederman J. dissected the issue with almost surgical precision and summarized his findings as follows:
[37] The Ontario Act fully adopts the federal regime in respect of waivers, including the prescribed T2029 form, and any doubt is resolved by the interpretative provisions in section 1 and by subsection 48(15) of the Ontario Act.
[38] Waiver form T2029 is a form utilized for federal purposes and purports to be the form prescribed or authorized by the Minister of National Revenue.
[39] Accordingly, the waiver form that was used in the instant case is deemed to be a form “prescribed by order of the Provincial Minister” under the Ontario Act. It has not been called into question by the Provincial Minister or anyone acting on his behalf. Therefore, the waiver form signed by ADFT is valid for the purposes of waiving the statutory limitation period in question.
The parties were to make written submission if they could not agree on costs.