Muth Estate, 2019 ABQB 922

Court of Queen’s Bench of Alberta Citation: Muth Estate, 2019 ABQB 922 Date: 20191203 Docket: 1403 06381 Registry: Edmonton Between: The Estate of Morley Myron Muth and Freda Muth, The Executor of the Estate of Morley Myron Muth Applicant - and - Eunice Liesch, Aaron Bushkowsky, Miriam Foster, Naomi Voss, and Nathan Bushkowsky Respondents _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Little _______________________________________________________ 1. Introduction and History [ 1 ] This is an application by the Plaintiff under Rule 7.3 for

summary judgment in a claim by an executor for indemnity from the other beneficiaries for the income tax liability of an estate. [ 2 ] Ms. Muth held back funds for income tax obligations of the estate and then distributed the balance to herself and the other beneficiaries. The holdback turned out to be shy of what was owed to CRA, and Ms. Muth seeks reimbursement from the beneficiaries of their proportionate share of the deficiency.

[ 3 ] The statement of claim was filed and served in Alberta in 2014. [ 4 ] The Applicant originally sought a Special Chambers date for a

summary judgment application in Masters Chambers in 2018 and was re-directed to a Justice Special. [ 5 ] At the September 13, 2019 Justice Special, the lawyer for the Applicant was ill and unable to attend. The lawyer for the Respondents had consented to an adjournment. Given that both parties had filed briefs and given the length of time it had already taken to get a hearing, I suggested that they consider proceeding on the strength of their written submissions only. 2.

Facts [ 6 ] Morley Muth signed a will in 1970 in Saskatchewan appointing his wife Freda Muth as executor and leaving everything to her if she survived him for thirty days, failing which his estate would go one-half to his sister, who in fact had predeceased him and whose children are the Respondents, and one-half to three siblings-in-law, ie. Ms. Muth’s siblings, who are not parties to this action. [ 7 ] Morley and Freda separated. They signed a separation agreement (Separation Agreement) in 1978 pursuant to which Ms.

Muth acknowledged that she “has no further claim against any of the property owned by the Husband at the present time or in the future acquired, and in consideration of the covenants of the Husband herein contained, the Wife does hereby renounce any right that the Wife might have to the administration of the estate of the Husband and further does hereby waive any and all rights of the Wife under The Dependents’ Relief Act ...The Homesteads Act..., and The Married Women’s Property Act” ( all of the Province of Saskatchewan). [ 8 ] Mr. Muth gave a reciprocal renunciation and waiver. [ 9 ] The two never reconciled.

Morley died in 2008, at which time Freda signed a document entitled “Renunciation of Probate and Relinquishment of Entire Interest in Estate” (Renunciation and Relinquishment) in which she did just that: renounced her right to administration of the estate and acknowledged that she had no claim against any of the property in the estate. [ 10 ] Eunice Liesch, one of the Respondents, is the daughter of Mr. Muth’s deceased sister, ie. Mr. Muth’s niece.

She applied to the Court of Queen’s Bench of Saskatchewan to be the administrator of the estate and for instructions on whether the estate should be divided among the alternate beneficiaries, as though Ms. Muth had predeceased her husband, or whether it should be divided as an intestacy. [ 11 ] In his decision ( Muth Estate v Bushkowsky , 2009 SKQB 237 ), Chicoine J held that the matter was not as simple as choosing one of those alternatives. He referred to a number of cases from other Canadian jurisdictions to the effect that a separation agreement/waiver does not revoke a will. He noted as well that Ms.

Muth represented that she had signed the 2008 Renunciation and Relinquishment based on her belief that the Separation Agreement disentitled her from benefiting under the will, but that it was necessary to ensure that the Respondent nieces and nephews benefited under the will. Chicoine J therefore directed a trial of the issue where the factual evidence could be reviewed and the effects of the Separation Agreement and the Renunciation and Relinquishment determined. [ 12 ] Rather than continue to trial, the parties reached a mediated settlement in 2011 pursuant to which Ms.

Muth would apply for probate, with the estate to be divided 55% to her and 45% to the Respondent nieces and nephews. [ 13 ] Ms. Muth retained an accountant in December 2011 to prepare the final income tax return from the estate and to estimate its tax liability. That accountant apparently advised that a $25,000 holdback was sufficient. Ms. Muth then distributed the balance of the estate in the proportions agreed to in the mediated settlement. [ 14 ] The first accountant, however, did not file the required return.

When a second accountant was retained to do so in November 2012, he determined that the holdback was inadequate. Ms. Muth paid the difference, together with the second accountant’s invoice, and sought repayment of 45% of those amounts from the Respondents: Income tax due: $57,333.44 Second accountant’s invoice $ 3,438.75 Total: $60,772.19 Holdback: ($25,000.00) Deficiency: $35,772.19 Respondents’ 45% share: $16,097.19

[15] In a supplementary affidavit, Ms. Muth deposes that she has since applied to Canada Revenue Agency for discretionary reliefwhich reduced the total income tax due from $57,333.44 to $40,847.85, which should have reduced her claim for reimbursement toabout $8000. But as a result of interest owed which she paid directly, she seeks reimbursement for that $8000 plus about $2600 plusabout another $13,000 for a total of about $23,600. It is important to note little information was provided to explain or substantiate theseadditional amounts. [16] Accordingly, the Applicant seeks

summary judgment against the Respondents in the approximate amount of $23,600. For thepurposes of this application, I will proceed with a

summary judgment analysis, while recognizing that Ms. Muth’s calculation of theactual amount of the claim is difficult to understand. Rule 7.3(3)(

b) permits a reference to a referee if the only issue is quantum. 3. Issues [17] The issues for determination are: 1. Whether this is a suitable case for

summary judgment. 2. If so, whether the other beneficiaries are obligated to indemnify Ms. Muth. 4.

Summary Judgment [18] Both counsel rely on the briefs they had filed for the Masters Special which had been scheduled before Weir-Jones TechnicalServices Incorporated v Purolator Courier Ltd., 2019 ABCA 49, was decided. They therefore rely on Hryniak v Mauldin, 2014 SCC7, Windsor v Canadian Pacific Railway, 2014 ABCA 108 , 2014 ABCA108, and Stefanyk v Sobeys Capital Incorporated,2018 ABCA 125. [19] In my view, nothing turns on this. The Court of Appeal in Weir-Jones clarified some confusion over the standard of proofnecessary for a successful

summary judgment application, but it did not in any way retreat from its decisions in Windsor and Stefanyk. And both Alberta cases, of course, are built on the foundational principles enunciated in Hryniak. [20] The Applicant Ms. Muth submits that this is a suitable case for

summary judgment, based on the established

summaryjudgment principles, including that material facts are not in dispute. [21] The Respondents argue that this matter must go to trial to resolve the following factual issues: - Why Ms. Muth did not provide instructions to file the estate tax return until December, 2011, notwithstanding that she distributedthe estate, less the holdback, in August, 2011. - Why did Ms. Muth wait till 2013 to notify the other beneficiaries of the issue. - What instructions she provided to the accountants respecting tax filing. [22] Weir Jones now sets out the test for

summary judgment as follows (at para 47): The proper approach to

summary dispositions, based on the Hryniak v Mauldin test, should follow the core principles relating tosummary dispositions, the standard of proof, the record, and fairness. The test must be predictable, consistent, and fair to both parties.The procedure and the outcome must be just, appropriate, and reasonable. The key considerations are:

a) Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a

summary basis, or douncertainties in the facts, the record or the law reveal a genuine issue requiring a trial?

b) Has the moving party met the burden on it to show that there is either “no merit” or “no defence” and that there is no genuine issuerequiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities or the application will fail, butmere establishment of the facts to that standard is not a proxy for

summary adjudication.

c) If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that thereis a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, by showingthat a fair and just

summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. Ifthere is a genuine issue requiring a trial,

summary disposition is not available.

d) In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared to

exercise the judicial discretion to summarily resolve the dispute. [ 23 ] As discussed below, this case does not fit neatly into the Weir-Jones framework, but it does fit into the Hryniak framework upon which Weir-Jones is based. Are there uncertainties in the facts, the record, or the law? [ 24 ] The facts here are straightforward: • They are neatly set out in the 2009 Saskatchewan decision, which was not appealed, but which resulted in a negotiated settlement reduced to writing. • They are repeated and updated to 2014 in Ms.

Muth’s July 31, 2014 affidavit, as summarized above. • The Respondents’ affidavit filed in opposition to this application does not dispute the facts, but deposes that the explanations given for Ms. Muth’s failure to properly account for the calculation and payment of taxes is inadequate. [ 25 ] For the most part, there are no material gaps or uncertainties in the record. [ 26 ] Are there uncertainties in the law? Clearly, that is why the parties seek relief again from a court. But Hryniak does not disqualify such cases from

summary judgment and, in fact, encourages them (at para 49): There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment.

This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts , and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. (emphasis added) [ 27 ] The uncertainty in the law referred to in the first part of the Weir-Jones test can only mean that there may be cases, such as those involving the need for good faith in contracts or right-to-die cases or other heavily evidence-based precedent-setting cases, where the evidence must be something more than simple affidavits, since credibility or larger public policy issues may be in play.

I do not read it as precluding

summary judgment where the parties simply have different views of the law because it is not trite. Moving party’s burden. [ 28 ] Ms. Muth is the moving party and accordingly she has the burden to show that there is no merit to the Respondents’ defence and no genuine issue requiring a trial. [ 29 ] As to the second part of that test, the issue here is a purely legal one: whether the Respondents are required as a matter of law to indemnify an executor who failed to withhold sufficient funds to pay the income tax liability of an estate.

There are no factual disputes bearing on that issue that require a trial. [ 30 ] As to the first part of that test, there may well be merit to the Respondents’ defence. They may be correct as to liability. As the Respondents point out, the facts presented by the Applicant are incomplete. Her affidavit does not explain the reason for the delay in filing the estate tax return until after distribution of the estate – ie, did the first accountant act on the Applicant’s instructions or was he negligent?

Further, there does seem be a live issue concerning the quantum for which the Applicant may be entitled to be reimbursed. In my view, Ms. Muth has clearly failed to meet the burden she bore in bringing this Application. [ 31 ] To that extent, the moving party will not have met its burden, but under the Hryniak principles, that should not preclude this court from applying the law to the facts and determining this litigation in a

summary manner if doing so is a “proportionate, more expeditious, and less expensive means to achieve a just result.” Have the Respondents put their best foot forward to demonstrate a triable issue? [ 32 ] Ms. Voss, one of the Respondents, filed an affidavit in opposition to this application. That affidavit refers to the Respondents’ reliance in 2011 on Ms. Muth’s calculation of the tax liability of the estate and the fact that the Respondents were not then asked to release Ms. Muth in her capacity as executor or otherwise indemnify her.

When they inquired in 2013 about the status of the holdback, they were notified that it was insufficient, and they were asked to reimburse Ms. Muth. And in any event, they have not been provided with a satisfactory explanation of the amount of the tax payable versus penalties and interest claimed. [ 33 ] None of these issues contradicts in any material way the evidence of Ms. Muth. [ 34 ] The Respondents argue, nevertheless, that viva voce evidence is necessary on the three points referred to earlier:

1. Why did Ms. Muth distribute the estate before ensuring that the estate tax return was filed? 2. What instructions did Ms. Muth provided to the first accountants respecting the tax filing? 3. Why did Ms. Muth delay in notifying the other beneficiaries of the issue? [ 35 ] If Ms. Muth did not provide instructions to the first accountant on a timely basis or indeed instructed acct not to file, then that would relieve the Respondents of any obligation to reimburse her. Of course, it is possible that the evidence at trial could benefit Ms.

Muth rather than the Respondents – after all, it may show that she provided instructions to the accountants to file the tax return before she distributed the estate and may therefore be in a better position to argue that she relied on professional advice in coming up with the $25,000 holdback and therefore should not be the only party to bear the cost. Ultimately though, I agree with the Respondents that there is a triable issue – did Ms. Muth exercise her duties as Executrix with reasonable care and diligence?

If she did not, then she is personally and solely responsible for the additional costs. [ 36 ] Nonetheless, I will proceed to the fourth stage. Does the state of the record allow this court to confidently deal with it on a

summary basis? [ 37 ] What this case shows is that parties facing an unusual estate situation sought the assistance of a court in Saskatchewan. That court concluded that the issue needed to go to trial to determine the effect of various documents on revocation of a will. [ 38 ] They decided that instead of going to trial on that issue, they would negotiate a settlement and did so. It was committed to writing. It provided that the Applicant would apply for probate, which she did, and that the parties would split the estate, which they did.

But the Applicant underestimated the tax liability of the estate, paid the difference, and relies on the terms of the negotiated settlement to obtain reimbursement from the Respondents. Her entitlement is a legal issue. [ 39 ] The record is clear. The litigation is now dated. The numbers are small. The parties by their earlier action (when the numbers were larger) have shown that they have no appetite for a trial. [ 40 ] I referred earlier to this case not fitting neatly into the Weir-Jones framework.

That is only because, while the Applicant may not have shown that there is no merit to the Respondents’ defence, neither is there a genuine factual issue requiring a trial as suggested by the Respondents. [ 41 ] I conclude that this is a suitable case for

summary judgment. It just may not be in favour of the Applicant. 5. Is Ms. Muth Entitled to Indemnity? [ 42 ] The negotiated settlement agreement does not specifically deal with an indemnity. Three specific costs are identified: 1. The Respondents would pay the cost of a Ms. Clark in connection with the mediation. 2. The parties would pay their own legal costs to date. 3. Both parties would split the cost of an ADR chambers session. [ 43 ] With those exceptions, probate and administration costs were to be paid from the estate “in the usual course”.

Applicant’s Position [ 44 ] The Applicant argues that the word “net” should be read into the settlement agreement, which means net of taxes, which means that the beneficiaries should pay their percentage of the taxes due, failing which they will have received more than their entitlement. I do not accept this argument. “Net of taxes”, assuming that that term were used, would more logically mean that the estate looks after the taxes.

If not, and some beneficiaries pay tax and others do not, or if they are in different tax brackets, then some beneficiaries benefit more than others and therefore receive a higher percentage. [ 45 ] The Applicant relies on Podulsky Estate (Re) , 2015 ABQB 509 , in support of her position that beneficiaries are obligated to indemnify the executor for income tax liability. I do not read the case that way.

In Podulsky , the executor had received tax planning advice and proposed an interim distribution that would ensure that every beneficiary received sufficient cash to cover his or her tax liability resulting from that capital gain. The issue raised by certain of the beneficiaries was whether capital gains tax on farmland was to be deducted from the sale of that land before the proceeds were distributed to the beneficiaries. Yungwirth J held that it was (para 90) :

Unless a contrary intention appears by the will, the real property contained in the residuary devise is applicable rateably to the paymentof the estate’s debts. If the residue is exhausted, the general legacies are used next, followed by the specific legacies.... [46] There is nothing in Podulsky to suggest that the beneficiaries were obligated to indemnify the executor for a tax liability.

Indeed, the executor was ordered to recalculate the capital gains tax payable by the estate which might result in a lower value availablefor distribution to the beneficiaries unless they all agreed on a particular tax treatment. [47] The Applicant relies as well on Wong Joint Partner Trust (Trustee of) v Wong, 2010 BCSC 1331, referred to by YungwirthJ, and in which the Court declared: “(t)he Court also found that the trustee could require satisfactory undertakings from the beneficiariesto pay and satisfy the capital gains tax and to indemnify and save harmless the trustees against all such claims, as a necessary adjunct totheir duty.” (para 93). [48] Again, this does not assist the Applicant.

Certainly, an executor is entitled to extract such indemnities, but Ms. Muth did notdo so. [49] Similarly, Fournie v Cromarty Estate (Trustee of), 2011 ONSC 6587, does not assist the Applicant. It stands only for theproposition that a testator may in a will specify that beneficiaries of particular bequests bear the capital gains tax payable on that bequest. Respondents’ Position [50] The Respondents argue that s 159 of the Income Tax Act supports their position that only the executor is liable for unpaidtaxes. [51]

Section 159 requires that a personal representative obtain a clearance certificate before distribution of an estate and imposespersonal liability for the tax liability of the estate on those who do not do so (See Appendix 1). [52] The Respondents refer to a number of cases in which s 159 was used to impose personal liability on an executor (eg, BogerEstate v Canada (TD), (FC), 1992 1 FC 152 at para 48, 46 FTR 241 (TD); Debou v Canada, (TCC), [1999] 4 CTC 2382 at para 34, [1999] TCJ No 551), which is the plain reading of that section, but none of them deals withwhether an executor is entitled to indemnity from the beneficiaries. [53] It should be noted that Parliament could have chosen to make all beneficiaries of the estate liable as well but chose not to doso.

On public policy grounds that is sensible – the beneficiaries have no control over when or how much is distributed. [54] Presumably for similar reasons, Parliament chose not to deal with whether a legal representative could seek indemnity frombeneficiaries. There may be situations where that would be equitable, but certainly there would be other situations where that would beinequitable. [55] There is therefore some support in s 159 of the Income Tax Act for the Respondents’ position that only the personalrepresentative is personally liable and therefore they are not, but I do not find it determinative.

Parliament was concerned with imposinga duty on executors to ensure the payment of tax and a consequence for not doing so but did not take the next step of allocatingresponsibility among beneficiaries for an executor’s breach of that duty. Surrogate Rules [56] The Respondents refer to the Alberta Surrogate Rules (AR 130/1995,

Schedule 1,

Part 1,

Section 9, Table No 16) as requiringthat a personal representative as part of his or her duties pay any tax owing and obtain clearance certificates before distributing estateproperty. While not argued by the parties, the estate administration likely is governed by Saskatchewan law, though I note that thelayman’s guide to probate in Saskatchewan available online also lists filing tax returns and obtaining a clearance certificate as duties ofan executor in Saskatchewan. [57] In any event, neither Alberta nor Saskatchewan estate administration legislation deals with the indemnity of an executor by abeneficiary.

Trust Principles [58] In Oosterhoff, Chambers, and McInnes, Oosterhoff on Trusts, 8th ed. (Toronto: Carswell, 2014), the authors discuss thedefinition or lack of definition of a “breach of trust”, concluding that “(i)t is convenient to say that a breach of trust arises when trustees fail to carry out the duties imposed upon them by the trust instrument,by statute, or by the general rules of equity. They may breach the trust either by failing to do something that they were supposed to do orby doing something which they were prohibited from doing.” (p 1039)

[ 59 ] To the extent that the term “breach of trust” has connotations of intentional wrongdoing, there is no evidence of that here. But clearly, Ms.

Muth had a statutory obligation to obtain a clearance certificate and failed to do so. [ 60 ] More typically, it is the beneficiaries seeking relief from a trustee, and thus Oosterhoff continues that beneficiaries have several remedies for breach of trust, including that “(f)irst and foremost, the trustees will be personally liable to pay for any losses caused by the breach, unless they have a defence.” (p 1039) [ 61 ] That, too, is codified in s 159 of the Income Tax Act as discussed earlier. [ 62 ] The question then becomes whether, if it is the trustee seeking relief as opposed to a beneficiary, such a trustee is entitled to indemnity from the beneficiaries.

In equity, such an indemnity was only available when the beneficiaries instigated or requested the breach of trust.

That has been codified in The Trustee Act , RSA 2000, c T-8 , s 26, which specifically provides that a trustee may be entitled to indemnity by a beneficiary who instigated or requested the breach of trust: Breach of trust at instigation of beneficiary 26 When a trustee has committed a breach of trust at the instigation or request or with the consent in writing of a beneficiary, the court may, if it thinks fit, and notwithstanding that the beneficiary is a married woman entitled for her separate use, whether with or without a restraint on anticipation, make any order that to the court seems just for impounding all or any part of the interest of the beneficiary in the trust estate by way of indemnity to the trustee or person claiming though the trustee. [ 63 ] The natural corollary of that principle is that if the beneficiaries did not instigate or request the breach, they cannot be obligated to indemnify the trustee.

In a fiduciary relationship such as that between a trustee and a beneficiary, the logic of that corollary is that as between the two parties, one who had the obligation to perform a duty and failed and one who had neither the obligation nor the means to satisfy it, it is the former who should bear the consequences of the action or inaction. [ 64 ] The Applicant argues that by the terms of the settlement agreement which determined the fifty -five percent/forty-five percent split, the Respondents must indemnify the Applicant in order that that ultimate percentage sharing is accomplished.

What that argument fails to recognize is that, following and in accordance with the terms of the settlement agreement, the Applicant as executor undertook certain responsibilities that essentially overlaid the purely contractual settlement agreement relationship with a trust relationship, with its consequent change in the respective rights and obligations of the parties. [ 65 ] I conclude that the Respondents are under no obligation to indemnify the Applicant for any income tax or penalties imposed on the Applicant as a result of her failure to obtain a clearance certificate before distributing the estate. 6.

Decision [ 66 ] For the reasons given above, I deny the Applicant’s motion for

summary judgment. [ 67 ] Ordinarily, that would mean that the parties proceed to trial. That is what the Respondents claim to want. Rule 7.3 does not specifically authorize me to deny the application for

summary judgment, but to grant

summary dismissal when the Respondents have not applied for that remedy. [ 68 ] Notwithstanding that it is not the last word from our Court of Appeal on the issue, I find instructive the following passage from Stefanyk (at para 11 ): It would be unfortunate if our civil procedure was unable to resolve a simple dispute like this, where the facts are not seriously in dispute, without a full trial. [ 69 ] This Court may have inherent jurisdiction to dismiss the case as though the Respondents had made an application for

summary dismissal, particularly given the ABCA’s comment above, but I will not exercise that jurisdiction without hearing from the parties. [ 70 ] What I will do is to caution the Applicant that if she continues the lawsuit, she may face a significant costs award if another judge comes to the same conclusion at the end of the suit. [ 71 ] The parties may speak to me about costs if they are unable to agree within 30 days after the issuance of this decision. Heard on the 4 th day of November, 2019. Dated at Edmonton, Alberta this 3 rd day of December, 2019.

Justice Little J.C.Q.B.A. Appearances: Barry King for the Applicant Sanjana Ahmed for Eunice Liesch, Aaron Bushowsky, Miriam Foster, Naomi Voss and Nathan Bushowsky Appendix 1 - Income Tax Act , excerpt Person Acting for Another 159

(1) For the purposes of this Act, where a person is a legal representative of a taxpayer at any time, (

a) the legal representative is jointly and severally, or solidarily, liable with the taxpayer (

i) to pay each amount payable under this Act by the taxpayer at or before that time and that remains unpaid, to the extent that the legal representative is at that time in possession or control, in the capacity of legal representative, of property that belongs or belonged to, or that is or was held for the benefit of, the taxpayer or the taxpayer’s estate, and (ii) to perform any obligation or duty imposed under this Act on the taxpayer at or before that time and that remains outstanding, to the extent that the obligation or duty can reasonably be considered to relate to the responsibilities of the legal representative acting in that capacity; and (

b) any action or proceeding in respect of the taxpayer taken under this Act at or after that time by the Minister may be so taken in the name of the legal representative acting in that capacity and, when so taken, has the same effect as if it had been taken directly against the taxpayer and, if the taxpayer no longer exists, as if the taxpayer continued to exist. Certificate before distribution

(2) Every legal representative (other than a trustee in bankruptcy) of a taxpayer shall, before distributing to one or more persons any property in the possession or control of the legal representative acting in that capacity, obtain a certificate from the Minister, by applying for one in prescribed form, certifying that all amounts (

a) for which the taxpayer is or can reasonably be expected to become liable under this Act at or before the time the distribution is made, and (

b) for the payment of which the legal representative is or can reasonably be expected to become liable in that capacity have been paid or that security for the payment thereof has been accepted by the Minister. Personal liability

(3) If a legal representative (other than a trustee in bankruptcy) of a taxpayer distributes to one or more persons property in the possession or control of the legal representative, acting in that capacity, without obtaining a certificate under subsection (2) in respect of the amounts referred to in that subsection,

(

a) the legal representative is personally liable for the payment of those amounts to the extent of the value of the property distributed; (

b) the Minister may at any time assess the legal representative in respect of any amount payable because of this subsection; and (

c) the provisions of this Division (including, for greater certainty, the provisions in respect of interest payable) apply, with any modifications that the circumstances require, to an assessment made under this subsection as though it had been made under

section 152 in respect of taxes payable under this Part.