In Anchor Pointe Energy Ltd. v. The Queen, 2003 FCA 294, the Federal Court of Appeal held that the limitation in subsection 152(5) does apply to reassessments made under subsection 165(3). At paragraphs 34 and 35 of that decision the Court said:
34 Crown counsel concedes that the Minister cannot increase tax payable after expiry of the normal reassessment period. I agree with Crown counsel. ...
35 In my opinion, subsection 165(5) allows the Minister to reassess after expiry of the normal reassessment period where a Notice of Objection has been filed but not to include in the taxpayer's income amounts that were not included in an assessment or reassessment made within the normal reassessment period.
 I also agree with the Appellant that in making a reassessment pursuant to subsection 165(3) after the expiry of the normal reassessment period, the Minister may not change the basis of the reassessment against the taxpayer. The Federal Court of Appeal in Walsh v. The Queen, 2007 FCA 222 held that after the expiry of the normal reassessment period the Minister cannot rely on a new argument that includes transactions which did not form the basis of the taxpayer’s reassessment. While that case dealt with the application of subsection 152(9) of the Act, I find that the same principle applies to subsection 165(3) reassessments made after the expiry of the normal reassessment period.
 ... Therefore, the Minister is not permitted after the expiry of the normal reassessment period to include amounts that arise from transactions other than those that underlie an assessment or reassessment made within the normal reassessment period even if the dollar amount of the reassessment would be unchanged.
Foster v. The Queen 2015 TCC 334 (Paris)