Smerchanski v. Minister of National Revenue, (1976) 9 N.R. 459 (SCC)

• Judge: Beetz and de Grandpré, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 29, 1976
• Jurisdiction: Canada (Federal)
• Citations: (1976), 9 N.R. 459 (SCC);[1976] CTC 488;76 DTC 6247;[1977] 2 SCR 1036;74 DLR (3d) 685;[1977] 2 SCR 568;1976 CanLII 174 (SCC);1976 CanLII 92 (SCC);[1977] 2 SCR 23;68 DLR (3d) 745;1976 CanLII 197 (SCC)

Smerchanski v. MNR (1976), 9 N.R. 459 (SCC)

MLB headnote and full text

Smerchanski v. Minister of National Revenue

Indexed As: Smerchanski v. Minister of National Revenue

Supreme Court of Canada

Laskin, C.J.C., Martland, Judson,

Ritchie, Spence, Pigeon, Dickson,

Beetz and de Grandpré, JJ.

June 29, 1976.

Summary:

This case arose out of an application by a taxpayer to set aside reassessments of his income tax with respect to the years 1945 to 1959. In 1964 the tax authorities were preparing a prosecution against the taxpayer. The taxpayer knew of the prosecution and on the taxpayer's initiative a settlement of the taxpayer's liabilities, both civil and criminal, was made. The taxpayer agreed to assessments for the years 1945 to 1959 which totalled $951,610. As a term of the settlement the taxpayer waived his statutory rights of appeal respecting the assessments. Subsequently the taxpayer claimed that his waiver of his statutory rights of appeal was invalid. The Trial Division of the Federal Court of Canada held that the taxpayer could validly waive his statutory rights to appeal the assessments.

On appeal to the Federal Court of Appeal the appeal was dismissed and the judgment of the Trial Division was affirmed - see 2 N.R. 197.

On appeal to the Supreme Court of Canada the appeal was dismissed and the judgment of the Federal Court of Appeal was affirmed. The Supreme Court of Canada held that the waiver by the taxpayer of his rights of appeal was valid where the tax department had good grounds for preparing a prosecution against the taxpayer and the taxpayer knew that he was in jeopardy of prosecution - see paragraph 13.

Income Tax - Topic 7928

Assessments and appeals - Waiver by a taxpayer of statutory rights of appeal - Whether a taxpayer under investigation for tax evasion can validly waive his statutory rights respecting assessments and appeals - A taxpayer while under investigation for tax evasion agreed in settlement of his liabilities to assessments which totalled $951,610 for the years 1945 to 1959 - As a term of the settlement the taxpayer waived his statutory rights to appeal the assessments - The Supreme Court of Canada held that the waiver by the taxpayer of his rights of appeal was valid where the tax department had good grounds for preparing a prosecution against the taxpayer and the taxpayer knew that he was in jeopardy of prosecution.

Counsel:

J.T. Thorson, Q.C. and Alan Scarth, Q.C., for the appellant;

Walter Williston, Q.C. and Guy J. Kroft, for the respondent.

This appeal was heard by the Supreme Court of Canada at Ottawa, Ontario on May 12, 13, 14 and 18, 1976. Judgment was delivered by the Supreme Court of Canada on June 29, 1976 and the following opinions were filed:

LASKIN, C.J.C. - see paragraphs 1 to 19.

PIGEON, J. - see paragraphs 20 to 22.

MARTLAND, JUDSON, RITCHIE, SPENCE, DICKSON, and de GRANDPRE, JJ. concurred with LASKIN, C.J.C.

BEETZ, J. concurred with PIGEON, J.