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The Budget Implementation and Tax Statutes Amendment Act, 2005

This is an unofficial version.
If you need an official copy, contact Statutory Publications.

S.M. 2005, c. 40

Bill 44, 3rd Session, 38th Legislature

The Budget Implementation and Tax Statutes Amendment Act, 2005

(Assented to June 16, 2005)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

PART 1

THE CORPORATION CAPITAL TAX ACT

C.C.S.M. c. C226 amended

1           The Corporation Capital Tax Act is amended by this Part.

2           Section 1 is amended

(a) by repealing the definitions "assessment", "commission", "prescribed" and "tax payable";

(b) by replacing the definition "minister" with the following:

"minister" means the Minister of Finance; (« ministre »)

(c) in the definition "return", by striking out "authorized by the minister" and "required by the minister".

3           The following is added after section 1:

Administration and enforcement

1.1         Part I of The Tax Administration and Miscellaneous Taxes Act applies to the administration and enforcement of this Act.

4           Subsection 10.1(3) is amended by striking out "authorized by the minister," and substituting "approved by the minister or the director,".

5            The following provisions are repealed:

(a) sections 11 and 11.1;

(b) subsections 17(2) to (4.1);

(c) sections 19, 20 and 22 to 37.

6(1)        Subsection 38(1) is amended by adding "of tax payable" after "assessment".

6(2)        Subsection 38(3) is repealed.

7           The following provisions are repealed:

(a) sections 39 to 49;

(b) clauses 51(1)(k), (l) and (m);

(c) subsection 51(2).

8           Subsection 51(3) is replaced with the following:

Effective date

51(3)       A regulation under this section may be made retroactive to the extent the Lieutenant Governor in Council considers it necessary in order to implement or give effect to

(a) a tax or administrative measure included in a budget presented to the Legislative Assembly; or

(b) an amendment to this Act.

PART 2

THE GASOLINE TAX ACT

C.C.S.M. c. G40 amended

9           The Gasoline Tax Act is amended by this Part.

10          Section 1 is amended

(a) in the definition "licence", by striking out "the minister or";

(b) in the part of the definition "motor vehicle" before clause (a), by striking out ", subject to subsection 30(12),";

(c) by repealing the definition "peace officer"; and

(d) in the definition "permit", by striking out "minister" and substituting "director".

11          The following is added after section 1:

Administration and enforcement

1.1         Part I of The Tax Administration and Miscellaneous Taxes Act applies to the administration and enforcement of this Act.

12          Clause 2.1(2)(a) is amended by striking out "issued by the minister" and substituting "issued by the director".

13          In the following provisions, "minister" is struck out wherever it occurs and "director" is substituted:

(a) subsections 4(1), (1.1), (2), (4), (7), (8) and (9);

(b) clauses 4(3)(a) and 4(5)(a);

(c) subsections 5(4) and 6(1).

14          The following provisions are repealed:

(a) sections 7 to 9;

(b) subsections 10(4) to (9) and (13) to (17);

(c) subsections 13(3) to (5);

(d) sections 16 to 18, 18.5 to 18.7;

(e) subsection 19(2);

(f) sections 19.1 to 36, 38.1 and 38.2.

15          Section 39 is amended

(a) by repealing clauses (t), (w) to (z) and (gg);

(b) in subclause (ff)(i), by striking out ", renewal, suspension, revocation and reinstatement" and substituting "or renewal"; and

(c) by renumbering it as subsection 39(1) and adding the following as subsection 39(2):

Effective date

39(2)       A regulation under this section may be made retroactive to the extent the Lieutenant Governor in Council considers it necessary in order to implement or give effect to

(a) a tax or administrative measure included in a budget presented to the Legislative Assembly; or

(b) an amendment to this Act.

PART 3

THE HEALTH AND POST SECONDARY

EDUCATION TAX LEVY ACT

C.C.S.M. c. H24 amended

16          The Health and Post Secondary Education Tax Levy Act is amended by this Part.

17          Section 1 is amended

(a) by repealing the definitions "assessment", "commission", "debtor", "prescribed" and "tax payable"; and

(b) by replacing the definition "employer" with the following:

"employer" means a person paying remuneration to an employee and includes

(a) a partnership or trust paying remuneration to an employee,

(b) the government,

(c) the Government of Canada, and

(d) a trustee in bankruptcy, assignee, liquidator, receiver, administrator or other person administering, managing, winding-up, controlling or otherwise dealing with an employer's property or business; (« employeur »)

18          Subsection 1.1(1) is repealed.

19          The following is added after section 1.1:

Administration and enforcement

1.2         Part I of The Tax Administration and Miscellaneous Taxes Act applies to the administration and enforcement of this Act.

20(1)       Subsection 2(1) of the English version is amended by striking out "Subsidiaries" and substituting "Subsidiary's" in the section heading.

20(2)       Subsection 2(5.2) of the English version is amended by striking out "in manner" and substituting "in a manner".

20(3)       Subsection 2(6) is amended by striking out "(3.1) or".

20(4)       Subsection 2(8) of the English version is amended by adding "by regulation" after "prescribed".

21          Subsection 3(3.10) is amended

(a) in clauses (d), (e) and (f),

(i) by striking out "subsections (3.13) and" and substituting "subsection", and

(ii) by striking out "(3.1) or"; and

(b) in clause (f) of the English version, by striking out "the" before "all".

22          Subsection 7(2) and sections 8 to 36 are repealed.

23          Section 38 is replaced with the following:

Regulations

38(1)       The Lieutenant Governor in Council may make regulations

(a) respecting the time and manner of payment of tax under this Act;

(b) respecting refunds under this Act;

(c) prescribing circumstances in which subsections 2(4) and (4.1) do not apply to a partnership;

(d) respecting any other matter the Lieutenant Governor in Council considers necessary or advisable for the purposes of this Act.

Effective date

38(2)       A regulation under this section may be made retroactive to the extent the Lieutenant Governor in Council considers it necessary in order to implement or give effect to

(a) a tax or administrative measure included in a budget presented to the Legislative Assembly; or

(b) an amendment to this Act.

24          Sections 39 and 40 are repealed.

PART 4

THE INCOME TAX ACT

C.C.S.M. c. I10 amended

25          The Income Tax Act is amended by this Part.

26          Subsections 3(4), (5) and (6) are repealed.

27          In subsection 4(1), clause (b) of Rule 1 is amended

(a) by striking out "and" at the end of subclause (iii); and

(b) by replacing subclause (iv) with the following:

(iv) under subsection 4.1(2.2) for the 2004 and 2005 taxation years, and

(v) under subsection 4.1(2.3) for the 2006 and subsequent taxation years.

28(1)       Subsection 4.1(2.2) is amended

(a) in the section heading, by striking out "subsequent" and substituting "2005"; and

(b) in the subsection, by striking out "the 2004 taxation year and for each subsequent taxation year" and substituting "each of the 2004 and 2005 taxation years".

28(2)       The following is added after subsection 4.1(2.2):

Basic tax payable — 2006 and subsequent taxation years

4.1(2.3)    An individual's basic tax payable for the 2006 taxation year and for each subsequent taxation year is the amount determined according to the following table:

Taxable income (TI) Basic tax payable (BT)
$30,544. or less BT = 10.9% × TI
more than $30, 544. but not more than $65,000. BT = $3,329. + 13.5% × (TI - $30,544.)
more than $65,000. BT = $7,981. + 17.4% × (TI - $65,000.)

28(3)       Subsection 4.1(3) is amended by striking out "(2.2)" and substituting "(2.3)".

29(1)       Subsection 4.6(3) is replaced with the following:

Basic personal amount

4.6(3)      An individual may claim a basic personal amount of

(a) $7,634. for a taxation year ending after 2001 and before 2006; and

(b) $7,734. for a taxation year ending after 2005.

29(2)       Clause 4.6(17)(c) is replaced with the following:

(c) in determining the amount for D in the formula, the amount determined for F were the lesser of $1,728. and 3% of the dependant's income for the year.

30(1)       Subsection 4.11(1) is amended:

(a) by replacing the subsection heading with "Political contribution credit — 2002 to 2004"; and

(b) in the part before the table, by adding "and before 2005" after "2001".

30(2)       The following is added after subsection 4.11(1):

Political contribution credit — 2005 and subsequent taxation years

4.11(1.1)   An individual's political contribution tax credit for a taxation year ending after 2004 is the lesser of $650. and the amount determined according to the following table:

Total contributions (T) Political Contribution Credit (PCC)
$400. or less PCC = .75 × T
more than $400. but not more than $750. PCC = $300. + (T - $400.)/2
more than $750. PCC = $475. + (T - $750.)/3

31(1)       The table in subsection 7(3) is amended

(a) in the last row, by replacing "calendar year after 2004" with "calendar year 2005"; and

(b) by adding the following rows to the end of the table:

Jan. 1, 2006 to June 30, 2006 15% 10.5%
July 1, 2006 to Dec. 31, 2006 14.5% 10%
Jan. 1, 2007 to June 30, 2007 14.5% 10.5%
after June 30, 2007 14% 10%

31(2)       Subsection 7(4.1) is repealed.

32          The following centred heading is added before section 7.2:

MANUFACTURING INVESTMENT TAX CREDIT

33(1)       The section heading for subsection 7.2(1) is replaced with "Manufacturing investment tax credit".

33(2)       The following is added after subsection 7.2(1):

Refundable credit

7.2(1.1)    A corporation is deemed to have paid on its balance due day for a taxation year ending after March 8, 2005, on account of its tax payable for that taxation year, an amount equal to the lesser of

(a) the amount, if any, by which its investment tax credit at the end of the taxation year, determined without reference to any expenditure incurred after the end of the year, exceeds the tax that would otherwise be payable by it for the year if no amount were deducted in respect of a loss realized, property acquired or expenditure incurred after the end of the year; and

(b) 20% of the amount determined for the taxation year under clause (a) of the definition "investment tax credit" in subsection (2).

33(3)       The definition "investment tax credit" in subsection 7.2(2) is amended

(a) in the part after clause (d) and before clause (e) of the English version, by adding "the total of" after "exceeds"; and

(b) by adding "and" at the end of clause (e) and adding the following after clause (e):

(f) the total of all amounts each of which is an amount deemed by subsection (1.1) to have been paid on account of tax payable by the corporation for any of the 10 immediately preceding taxation years;

33(4)       The following is added after subsection 7.2(2.1):

Qualified property acquired after March 8, 2005 includes used property

7.2(2.2)    In determining whether property acquired after March 8, 2005, is qualified property,

(a) the definition "qualified property" in subsection 127(9) of the federal Act shall be read without reference to "that has not been used, or acquired for use or lease, for any purpose whatever before it was acquired by the taxpayer" in the part after paragraph (b) and before paragraph (c); and

(b) the part of clause (b) before subclause (i) of the definition "qualified property" in subsection (2) of this Act shall be read without reference to "was not used — or acquired for use or lease — for any purpose whatever before it was acquired by the corporation,".

Transitional

7.2(2.3)    In applying the definition "investment tax credit" in subsection (2) to a taxation year ending before March 9, 2005, this section shall be read without reference to subsection (2.2).

Property acquired when available for use

7.2(2.4)    In determining a taxpayer's investment tax credit at any time after March 8, 2005,

(a) a property acquired after that date is deemed not to have been acquired by the taxpayer; and

(b) an expenditure incurred after that date to acquire property is deemed not to have been incurred by the taxpayer;

before the property is considered to have become available for use by the taxpayer, as determined under subsection 13(27) of the federal Act without reference to paragraph (c) or under subsection 13(28) of that Act without reference to paragraph (d).

Limitations

7.2(2.5)     In determining a taxpayer's investment tax credit at any time after March 8, 2005,

(a) no amount shall be included in respect of property acquired after that date unless and until the taxpayer has filed with the minister, within one year after the filing-due date for the taxation year in which the property was acquired and in a form and manner authorized by the minister, the information about the property stipulated by the authorized form; and

(b) no amount shall be included in respect of property acquired after that date if an amount in respect of the property is included in computing a tax credit claimed under any other section of this Act.

34          The following centred heading is added before section 7.3:

RESEARCH AND DEVELOPMENT TAX CREDIT

35(1)       The definition "research and development tax credit" in subsection 7.3(1) is amended

(a) in clause (a), by adding "and before March 9, 2005," after "in the year";

(b) by adding the following after clause (a):

(a.1) an amount equal to 20% of the aggregate of all amounts each of which is an eligible expenditure made by it in the year and after March 8, 2005, computed without reference to subsection 13(7.1) of the federal Act,

(c) in clause (b),

(i) in the part before subclause (i), by adding "before March 9, 2005" after "made by it", and

(ii) by adding "or" at the end of subclause (i), striking out "or" at the end of subclause (ii) and repealing subclause (iii);

(d) by adding the following after clause (b):

(b.1) an amount equal to 20% of the aggregate of all amounts each of which is an eligible expenditure made by it after March 8, 2005, in any of

(i) the 10 immediately preceding taxation years, or

(ii) the three immediately following taxation years,

computed without reference to subsection 13(7.1) of the federal Act,

(e) in clause (d), by adding "or (b.1)" after "clause (b)".

35(2)       The following is added after subsection 7.3(2):

Transitional

7.3(2.1)    In applying the definition "research and development tax credit" in subsection (1) to a taxation year ending before March 9, 2005, the references in clauses (a.1) and (b.1) to "20%" shall be read as "15%".

Limitations

7.3(2.2)    In determining a taxpayer's research and development tax credit at any time after March 8, 2005,

(a) no amount shall be included in respect of an eligible expenditure made after that date unless and until the taxpayer has filed with the minister, within one year after the filing-due date for the taxation year in which the expenditure was made and in a form and manner authorized by the minister, the information about the expenditure stipulated by the authorized form; and

(b) no amount shall be included in respect of an expenditure made after that date if an amount in respect of the expenditure is included in computing a tax credit claimed under any other section of this Act.

36(1)       The definition "eligible salaries" in subsection 7.5(1) is amended

(a) in clause (a), by striking out "final script stage" and substituting "production commencement time"; and

(b) in the part of clause (b) before subclause (i), by striking out "end of the final script stage" and substituting "production commencement time".

36(2)       Subsection 7.5(3) is amended by striking out "and" at the end of clause (d), adding "and" at the end of clause (e), and adding the following after clause (e):

(f) the references in clauses (a) and (b) of the definition to "production commencement time" shall be read as "final script stage" when applying the definition to

(i) an eligible film the principal photography for which commenced before March 9, 2005, or

(ii) a taxation year that ended before March 9, 2005.

37(1)       Subsection 7.6(1) is amended

(a) in the formula, by striking out ".35" and substituting ".45"; and

(b) in the description of C,

(i) by striking out "40 kilometres" in clauses (a) and (c) and substituting "35 kilometres", and

(ii) in the English version of clause (c), by striking out "on at least" and substituting "for at least".

37(2)       Subsection 7.6(1.1) is amended by striking out "or" at the end of clause (a), adding "or" at the end of clause (b), and adding the following after clause (b):

(c) whom the minister, upon application in accordance with the regulations, recognizes as the film's principal owner because of their contribution to the development, creative and financial control, and exploitation of the film, having regard to their role in

(i) the acquisition or development of the film's story,

(ii) commissioning the writing of the film's screenplay,

(iii) selecting, hiring or firing key artists and creative personnel,

(iv) preparing, revising and approving the film's budget,

(v) binding the production company to talent and crew contracts,

(vi) arranging production financing,

(vii) making final creative decisions,

(viii) making or authorizing production expenditures, and

(ix) banking arrangements for the production.

A person's application under clause (c) must contain sufficient information to enable the minister to apply the criteria in subclauses (c)(i) to (ix).

37(3)       The following is added after subsection 7.6(1.2):

Frequent filming bonus involving series

7.6(1.3)    In determining the amount for B in the formula in subsection (1) in respect of an eligible film,

(a) a cycle of a commercially exploitable series may be treated as an eligible film, regardless of the combined running length of its episodes;

(b) episodes with a combined running length of two hours within the same cycle of a commercially exploitable series may be treated as a prior film;

(c) the remaining episodes in a cycle that are not treated as a prior film under clause (b) may be treated as a separate eligible film if, as a separate eligible film, the amount determined for it under B in that formula would not be nil; and

(d) the amount determined for A for the separate eligible film under clause (c) shall be that proportion of the amount determined for A for the cycle that the running length of the separate film is of the running length of the whole cycle.

For the purpose of this subsection, if the series is a television series, the running length of an episode is deemed to be its broadcast length and the running length of a cycle is the total running length of the episodes in that cycle.

38          In subsection 8(1), the description of C in the formula is amended by striking out "amount of the deduction claimed" and substituting "amount deductible".

39(1)       Subsection 10.1(1) is amended by striking out "2006" in the part before the formula and substituting "2009".

39(2)       The definition "eligible expenditure" in subsection 10.2(2) is amended by adding "and" at the end of clause (c), striking out "and" at the end of clause (d), and repealing clause (e).

39(3)       The following is added after subsection 10.2(2):

Limitations

10.2(2.1)   Despite subsection (2), in determining a taxpayer's odour-control tax credit,

(a) no amount shall be included in respect of an acquisition of property unless and until the taxpayer has filed with the minister, within one year after the filing-due date for the taxation year in which the property was acquired, a prescribed form containing the information about the property stipulated by the form; and

(b) no amount shall be included in respect of an acquisition of property if an amount in respect of the property is included in computing a tax credit claimed under any other section of this Act.

40          The definition "eligible share" in subsection 11.6(1) is amended by striking out ", 2005" in clauses (d) and (f) and substituting "2008".

41          Clause 11.8(2)(a) is amended by striking out "2006" and substituting "2009".

PART 5

THE LAW FEES AND

PROBATE CHARGE ACT

C.C.S.M. c. L80 amended

42          The Law Fees and Probate Charge Act is amended by this Part.

43          Section 6 of the Schedule is amended in the part before clause (a) by striking out "on or after March 30, 1998" and substituting "during the period commencing on March 30, 1998 and ending on June 30, 2005".

44          The following is added after section 6 of the Schedule:

7. For an application made on or after July 1, 2005:

(a) where the value of the property devolving is $10,000. or less $70.

(b) where the value of the property devolving is more than $10,000. $70.,

plus $7. for every
additional $1,000. of
value or fraction thereof.

PART 6

THE MINING TAX ACT

C.C.S.M. c. M195 amended

45          The Mining Tax Act is amended by this Part.

46          Subsection 1(1) is amended by repealing the definitions "assessment", "commission" and "court".

47          The following is added after section 1.1:

Administration and enforcement

1.2         Part I of The Tax Administration and Miscellaneous Taxes Act applies to the administration and enforcement of this Act.

48          Subsections 5(1) and (2) and section 8 are amended by striking out "subject to sections 31.1, 32 and 33," and substituting "subject to an appeal under Part I, Division 4 of The Tax Administration and Miscellaneous Taxes Act,".

49          Sections 15 to 21 are repealed.

50(1)       Subsection 22(1) is amended by striking out "in a form authorized by the minister and".

50(2)       Subsection 22(3) is repealed.

51          Sections 25 to 35, 37 to 42 and 44.1 are repealed.

52          Section 45 is replaced with the following:

Regulations

45(1)       The Lieutenant Governor in Council may make regulations

(a) prescribing information to be contained in, or filed in respect of, returns required under this Act;

(b) prescribing the manner in which the detailed statements of an operator's operations to be filed under section 23 are to be reconciled with the operator's unconsolidated financial statements;

(c) respecting any other matter the Lieutenant Governor in Council considers necessary or advisable for the purposes of this Act.

Effective date

45(2)       A regulation under this section may be made retroactive to the extent the Lieutenant Governor in Council considers it necessary in order to implement or give effect to

(a) a tax or administrative measure included in a budget presented to the Legislative Assembly; or

(b) an amendment to this Act.

PART 7

THE MOTIVE FUEL TAX ACT

C.C.S.M. c. M220 amended

53          The Motive Fuel Tax Act is amended by this Part.

54          Section 1 is amended

(a) by repealing the definitions "court" and "peace officer";

(b) in the definition "licence", by striking out "the minister or";

(c) in the part of the definition "motor vehicle" before clause (a), by striking out ", subject to subsection 29(9),"; and

(d) in the definition "permit", by striking out "minister" and substituting "director".

55          The following is added after section 1:

Administration and enforcement

1.1         Part I of The Tax Administration and Miscellaneous Taxes Act applies to the administration and enforcement of this Act.

56          Subsections 3(1) and (2) are amended by striking out "subsection 2(9), 2(9.1) or 2(9.2)" and substituting "subsection 2.1(1) or (2)".

57           In the following provisions, "minister" is struck out wherever it occurs and "director" is substituted:

(a) subsections 5(1), (5), (7), (8) and (9);

(b) clause 5(6)(a);

(c) subsections 6(5) and 7(1).

58          The following provisions are repealed:

(a) sections 8 to 10;

(b) subsections 11(5) to (10) and (14) to (18);

(c) subsections 14(3) to (5);

(d) sections 17 to 19, 19.5 to 19.7;

(e) subsection 20(2);

(f) sections 20.1 to 35, 37.1 and 37.2.

59          Section 38 is amended

(a) by repealing clauses (q), (x), (y) and (bb);

(b) by replacing clause (r) with the following:

(r) exempting persons or classes of persons from the requirement in subsection 6(5) for a blending permit;

(c) in subclause (aa)(i), by striking out ", renewal, suspension, revocation and reinstatement" and substituting "or renewal"; and

(d) by renumbering it as subsection 38(1) and adding the following as subsection 38(2):

Effective date

38(2)       A regulation under this section may be made retroactive to the extent the Lieutenant Governor in Council considers it necessary to implement or give effect to

(a) a tax or administrative measure included in a budget presented to the Legislative Assembly; or

(b) an amendment to this Act.

PART 8

THE MUNICIPAL ACT

C.C.S.M. c. M225 amended

60          The Municipal Act is amended by this Part.

61(1)       The definition "institutional lands" in section 334 is amended

(a) in subclause (a)(ii), by striking out "The University of Manitoba, The University of Winnipeg, Le Collège de Saint-Boniface, Brandon University or"; and

(b) by striking out "and" at the end of clause (b), adding "and" at the end of clause (c), and adding the following after clause (c):

(d) lands that are owned by The University of Manitoba, The University of Winnipeg, Le Collège de Saint-Boniface or Brandon University and belong to a residential class of assessable property under The Municipal Assessment Act.

61(2)       Clause (d) of the definition "institutional lands" in section 334, as enacted by subsection (1), is amended by adding "universitaire" after "Le Collège".

PART 9

THE PROPERTY TAX AND INSULATION

ASSISTANCE ACT

C.C.S.M. c. P143 amended

62          The Property Tax and Insulation Assistance Act is amended by this Part.

63          The following is added after section 16:

PART III.1

FARMLAND SCHOOL TAX REBATE

Definitions

16.1        The following definitions apply in this Part.

"farmland" means land, as defined in The Municipal Assessment Act, that is classified as Farm Property under that Act. (« terre agricole »)

"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Part. (« ministre »)

"occupier", "person", "real owner" and "registered owner" have the same meaning as in The Municipal Assessment Act. (« occupant », « personne », « propriétaire inscrit » et « propriétaire véritable »)

"school tax" in relation to a parcel of farmland for a taxation year means the tax imposed by the council of a municipality under section 188 of The Public Schools Act in respect of that land for that year. (« taxe scolaire »)

"taxpayer" in relation to the school tax imposed in respect of a parcel of farmland for a taxation year means

(a) a person who was, in that year,

(i) a registered owner or real owner of the land who was liable to pay the tax, other than a person who became the registered owner or real owner in that year on a tax sale, quit claim or foreclosure, or

(ii) an occupier who was liable under subsection 25(1) of The Municipal Assessment Act to pay the tax;

(b) if a person referred to in subclause (a)(i) or (ii) has died, the person's legal representative or any heir who has become the registered owner or real owner of the land;

(c) while a person referred to in subclause (a)(i) or (ii) is in bankruptcy, the person's trustee in bankruptcy; and

(d) any other person who the minister recognizes as a person who paid the tax for all or part of that year. (« contribuable »)

Rebate of 50% of school tax

16.2(1)     Subject to sections 16.3 to 16.6, a rebate is payable for a taxation year after 2004 to every taxpayer in relation to farmland in Manitoba who applies for it in accordance with this Part.  Subject to section 16.6 and the regulations, the amount of the rebate is 50% of the school tax paid in respect of that land for that taxation year by or on behalf of

(a) the taxpayer; or

(b) another taxpayer in relation to whom the applicant for the rebate is a legal representative, heir or trustee in bankruptcy.

Change in ownership

16.2(2)     If there was a change in taxpayers in relation to a parcel of farmland in a taxation year and, in relation to that change, some or all of the school tax paid by or on behalf of one taxpayer is reimbursed by another taxpayer pursuant to a written agreement between them, the reimbursed tax is deemed for the purpose of this Part to have been paid by the one who made the reimbursement and not by or on behalf of the one who received it.

Amalgamation or winding-up

16.2(3)     For the purposes of this Part,

(a) if two or more corporations are amalgamated, the amalgamated corporation is deemed to be the same corporation as, and a continuation of, each of the predecessor corporations; and

(b) if a subsidiary corporation is wound up into a parent corporation in a transaction to which subsection 88(1) of the Income Tax Act (Canada) applies, the parent corporation is deemed to be the same corporation as, and a continuation of, the subsidiary corporation.

Property taxes to be paid in full

16.3(1)     Subject to subsection (2), no rebate is payable in respect of a parcel of farmland for a taxation year unless the following amounts are paid in full on or before the day the application for the rebate is filed:

(a) all property taxes for that year and all earlier years in respect of the real property that includes that parcel;

(b) any interest and penalties payable in respect of those taxes;

(c) any amount payable by the taxpayer under section 16.10.

Exception

16.3(2)     A rebate for a taxation year may be paid to a taxpayer in respect of a parcel of farmland disposed of by the taxpayer before the property taxes for that year became due, but only if the following amounts are paid in full on or before the day the application is filed:

(a) all property taxes for all earlier years in respect of the real property that includes that parcel;

(b) any interest and penalties payable in respect of those taxes;

(c) any amount payable by the taxpayer under section 16.10.

Application for rebate

16.4(1)     A taxpayer wishing to obtain a rebate under this Part must apply for it in a form approved by the minister.

Form and content of application

16.4(2)     The application for a rebate for a taxation year must include the following information:

(a) the taxpayer's name and address and, if applicable, the location of the taxpayer's head office;

(b) the taxpayer's social insurance number, if applicable;

(c) the taxpayer's business number for income tax purposes, if applicable;

(d) the roll number of the real property that includes the farmland for which the rebate is being sought, and proof that the property taxes for that property have been paid in full as required by section 16.3;

(e) any information stipulated by the application form in respect of situations involving more than one taxpayer, whether because of joint or common ownership or because of a change in ownership in that taxation year;

(f) any other information stipulated by the application form.

The taxpayer must also provide any other information that the minister requires to determine the applicant's status as a taxpayer and his or her entitlement to the rebate.

Application deadline

16.4(3)     An application for a rebate for a taxation year must be filed with the minister before the end of the third year following that year.

Claims for rebate by two or more taxpayers

16.5        Where two or more taxpayers apply for a rebate in respect of the same farmland for the same taxation year, and the total amount claimed by them is greater than 50% of the school tax paid on that land for that year,

(a) the minister may refuse to provide a rebate to each of them until they agree on how the amount to be rebated is to be divided between them; and

(b) if the minister has provided a rebate to one taxpayer before being made aware of another taxpayer's claim, the minister

(i) may provide or refuse to provide a rebate to the second taxpayer, and

(ii) may, after paying an amount as a rebate to the second taxpayer, recover all or any part of that amount from the first taxpayer.

Rebate reduced by school tax reduction

16.6        The amount otherwise payable as a school tax rebate in respect of a parcel of farmland for a taxation year must be reduced by the amount of any school tax reduction allowed under the regulations in respect of that parcel for that taxation year.

Delegation

16.7        The minister may delegate the administration of some or all of this Part to any person.

Regulations

16.8        The Lieutenant Governor in Council may make regulations

(a) establishing a method for delivering, instead of a school tax rebate under this Part, a benefit equivalent to that rebate by way of a reduction in the school tax payable for a taxation year on a parcel of farmland, but only if the following amounts are paid in full before the beginning of that taxation year:

(i) all property taxes for all earlier years in respect of the real property that includes that parcel,

(ii) any interest and penalties in respect of those taxes,

(iii) any amount payable under section 16.10 before the beginning of that taxation year;

(b) respecting the reimbursement of municipalities and local government districts for any benefit provided by way of a school tax reduction;

(c) increasing or decreasing the percentage in subsection 16.2(1) for any taxation year or years;

(d) establishing a process to deal with objections or complaints respecting the granting of, or the failure or refusal to grant, a tax rebate or reduction under this Part;

(e) providing authority to investigate, inspect or audit any matter pertaining to a person's eligibility for a tax rebate or reduction under this Part;

(f) requiring a person to provide information necessary to support a tax rebate or reduction under this Part;

(g) respecting any matter the Lieutenant Governor in Council considers necessary or advisable for the purposes of this Part.

Reimbursement of municipality

16.9        The Minister of Finance for Manitoba shall ensure that each municipality and local government district is reimbursed out of the Consolidated Fund, in accordance with the regulations, for any school tax reduction made by it in accordance with the regulations.

Recovery of school tax rebate or reduction

16.10(1)    If a school tax rebate or reduction has been paid or allowed under this Part to a person who was not eligible for it or in respect of property that was not eligible for it, the person who received the rebate or the benefit of the reduction must pay to the Minister of Finance for Manitoba, upon receipt of a notice of assessment by the minister, the amount that should not have been paid as a rebate or allowed as a reduction.

Interest payable

16.10(2)    If a person fails to pay when it is due an amount payable under subsection (1), interest is payable by the person on the unpaid amount, at the rate prescribed under The Income Tax Act for the purpose of subsection 5.6(4) of that Act,

(a) if it is payable in respect of a school tax reduction, from the date the municipal taxes levied in respect of the property for the year were due; or

(b) if it is payable in respect of a school tax rebate, from the date the rebate was paid.

PART III.2

SCHOOL TAX REDUCTION

Regulations for school tax reduction program

16.11(1)    The Lieutenant Governor in Council may make regulations to continue, for any local government district that participated in it in 2004, with such changes as the Lieutenant Governor in Council considers appropriate, the school tax reduction program provided under Part II of The Revenue Act as it read before this section came into force.

Effective date

16.11(2)    A regulation under this section may be made retroactive to a date specified in the regulation, but not earlier than April 1, 2005.

PART 10

THE PROVINCIAL-MUNICIPAL TAX SHARING ACT

C.C.S.M. c. T5 amended

64          The Provincial-Municipal Tax Sharing Act is amended by this Part.

65          The title is replaced with "THE MUNICIPAL REVENUE (GRANTS AND TAXATION) ACT".

66          The following is added before section 1:

PART 1

MUNICIPAL TAXATION

67          The following provisions are amended by striking out "Act" and substituting "Part":

(a) section 1, in the part before the first definition;

(b) clauses 4(1)(e) and (g).

68           Sections 2 and 2.1 are repealed.

69          The following is added after section 5:

PART 2

GRANTS TO MUNICIPALITIES

Definitions

6           The following definitions apply in this Part.

"fiscal year" means the period beginning on April 1 of one year and ending on March 31 of the following year. (« exercice »)

"fund" means the special account established under section 7. (« Fonds »)

"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Part. (« ministre »)

"municipality" includes an Indian Reserve, a local government district and a community under The Northern Affairs Act. (« municipalité »)

"taxable litre" means

(a) in relation to gasoline, a litre of gasoline, other than aircraft gasoline, on the purchase of which tax is paid under The Gasoline Tax Act; and

(b) in relation to motive fuel, a litre of motive fuel, other than motive fuel used in the operation of a locomotive, on the purchase of which tax is paid under The Motive Fuel Tax Act. (« litre taxable »)

Building Manitoba Fund established

7(1)        There shall be established in the Consolidated Fund a special account to be known as the "Building Manitoba Fund".

Credit to fund for 2005-06 fiscal year

7(2)        There shall be credited to the fund for the fiscal year ending on March 31, 2006, out of the sums appropriated for grants to municipalities for that year, the sum of $118,709,100.

Annual credit to fund

7(3)        There shall be credited to the fund in each fiscal year beginning after 2005 the sums appropriated for grants to municipalities under this Part for the fiscal year.

Grants charged to fund

7(4)        There shall be charged to the fund in each fiscal year the grants paid or distributed in that year to municipalities under section 9.

Estimates of expenditure for grants to municipalities

8(1)        Subject to subsections (2) and (3), the government's estimates of expenditure for a fiscal year beginning after 2005 must include, as a sum to be voted for grants to municipalities under this Part in that year, an amount not less than the total of the following amounts:

(a) $0.02 times the number of taxable litres of gasoline that the Minister of Finance estimates will be purchased in the fiscal year;

(b) $0.01 times the number of taxable litres of motive fuel that the Minister of Finance estimates will be purchased in the fiscal year;

(c) 4.15% of the amount estimated by the Minister of Finance to be the government's revenue under The Income Tax Act for the fiscal year.

Deferral for anticipated reductions

8(2)        If the amount to be included under subsection (1) for a fiscal year is greater than the sum voted for grants to municipalities under this Part for the immediately preceding fiscal year and the Minister of Finance anticipates a reduction in the amount to be included for a future year, the government may defer the inclusion of all or part of the excess to the future year to offset the anticipated reduction in that year.

Adjustment for decrease in revenue

8(3)        If the Minister of Finance, before tabling the government's estimates of expenditure for a fiscal year in the Legislative Assembly, determines that

(a) the number of taxable litres of gasoline or motive fuel sold in the immediately preceding fiscal year; or

(b) the government's revenue under The Income Tax Act for the preceding fiscal year;

is significantly lower than estimated for the preceding fiscal year under subsection (1), the Minister of Finance may reduce the amount to be included under that subsection to reflect the reduction in revenue, except to the extent that the reduction is reflected in an adjustment made under subsection 9(3) in the preceding year.

Allocation and distribution of grants

9(1)        The manner in which the amount credited to the fund in a fiscal year is to be allocated and paid or distributed among municipalities and other areas of the province is to be determined by the Lieutenant Governor in Council.

Conditional grants

9(2)        The Lieutenant Governor in Council may, by order or by regulation, impose terms and conditions on grants to be paid or distributed under this section.

Adjustments for increase or decrease in revenue

9(3)        If in any fiscal year the Minister of Finance

(a) determines that the number of taxable litres of gasoline or motive fuel sold in the immediately preceding fiscal year, or the government's revenue under The Income Tax Act for the preceding fiscal year, is significantly higher or lower than estimated for that fiscal year under subsection 8(1) and the increase or decrease has not been reflected in

(i) an adjustment under this subsection in the preceding year, or

(ii) the amount included under subsection 8(1) in the estimates of expenditure for the current fiscal year; or

(b) anticipates that the number of taxable litres of gasoline or motive fuel sold in the current fiscal year, or the government's revenue under The Income Tax Act for the current fiscal year, will be significantly higher or lower than estimated for that fiscal year under subsection 8(1);

the Lieutenant Governor in Council may adjust the amounts allocated or to be allocated to municipalities for the current fiscal year to reflect that increase or decrease.  The amount of any increase may be paid out of the Consolidated Fund from money authorized for the purpose by or under an Act of the Legislature.

Prior rights to grants or recoveries extinguished

9(4)         On the coming into force of this Part, the following rights and entitlements are extinguished:

(a) any right or entitlement of a municipality, or of the municipalities as a group, to an allocation or distribution of tax revenue under section 2 or 2.1 of this Act as it read before this Part came into force;

(b) any right or entitlement of the government to recover, by deduction, set-off or in any other manner, any amounts allocated or distributed to municipalities under section 2 of this Act before this Part came into force.

Regulations

10          The Lieutenant Governor in Council may make regulations

(a) defining words or expressions used but not defined in this Part;

(b) establishing reporting requirements for municipalities respecting grants received by them;

(c) providing authority to investigate, inspect or audit any matter pertaining to a grant made or to be made to a municipality under this Part;

(d) respecting any matter the Lieutenant Governor in Council considers necessary or advisable for the purposes of this Part.

PART 3

C.C.S.M. REFERENCE

C.C.S.M. reference

11          This Act shall no longer be referred to as chapter T5 of the Continuing Consolidation of the Statutes of Manitoba but may be referred to as chapter M265 of the Continuing Consolidation of the Statutes of Manitoba.

PART 11

THE RETAIL SALES TAX ACT

C.C.S.M. c. R130 amended

70           The Retail Sales Tax Act is amended by this Part.

71          Subsection 1(1) is amended

(a) by repealing the definitions "assessment", "commission" and "estimate";

(b) in clause (c) of the definition "fair value", by striking out "pursuant to section 16" and substituting "under subsection 46(3) of The Tax Administration and Miscellaneous Taxes Act"; and

(c) in the definition "purchase", by striking out "and subsection 15(2)".

72          The following is added after section 1:

Administration and enforcement

1.1         Part I of The Tax Administration and Miscellaneous Taxes Act applies to the administration and enforcement of this Act.

73(1)       Subsection 3(1) is amended

(a) in clause (r.1), by adding "and magazines" after "newspapers";

(b) by replacing clause (w) with the following:

(w) tangible personal property declared in the regulations to be a catalyst or a direct agent;

(c) in subclause (yy)(i), by striking out "after April 29, 1999 and before July 2005" and substituting "before July 2007".

73(2)       Subsection 3(3) is amended by striking out "Part 1 of The Revenue Act" and substituting "Part I.1 of The Tax Administration and Miscellaneous Taxes Act".

73(3)        Subsection 3(27.1) is amended by striking out "after April 29, 1999 and before July, 2005" and substituting "before July 2007".

74          Subclause 4(1)(f)(ii) is amended by adding "and magazines" after "newspapers".

75(1)       Subsection 5(5) is repealed.

75(2)       Subsection 5(6) is amended in the part before clause (a) by striking out "minister" and substituting "director".

76          Sections 6 to 8.1 are repealed.

77(1)       Subsection 9(2) is replaced with the following:

Vendor to file returns and remit tax

9(2)        Every vendor must

(a) collect the tax payable under section 2 at the time that it is payable; and

(b) in accordance with the regulations

(i) file returns with the director, and

(ii) remit to the minister the tax that the vendor collected and any amount that the vendor was required to collect as tax but did not collect.

Recovery of amount remitted but not collected

9(2.1)      A vendor who remits an amount in respect of tax payable by a purchaser that the vendor did not collect from the purchaser is entitled to recover that amount in a court of competent jurisdiction as a debt owing by the purchaser to the vendor.

77(2)       Subsections 9(5) and (6.1), sections 10 to 20.2 and subsection 21(10) are repealed.

78          Clause 23(1)(e) is amended by striking out "minister" and substituting "director".

79          Sections 24 and 24.1 are repealed.

80(1)       Clause 26(1.1)(b) is amended by striking out "The Revenue Act" and substituting "The Tax Administration and Miscellaneous Taxes Act".

80(2)       Subsection 26(2.3) is amended by striking out "Subject to subsection 19(6), no" and substituting "No".

80(3)       Subsection 26(2.4) is repealed.

81          Sections 28 to 28.3 are repealed.

82(1)       Subsection 29(1) is amended

(a) in clause (b), by striking out "recordkeeping and"; and

(b) by repealing clauses (s) and (t).

82(2)       The part of subsection 29(2) before clause (a) is replaced with the following:

Effective date

29(2)       A regulation under this section may be made retroactive to the extent the Lieutenant Governor in Council considers it necessary in order to implement or give effect to

PART 12

THE REVENUE ACT

C.C.S.M. c. R150 amended

83          The Revenue Act is amended by this Part.

84          The title of the Act is replaced with the following:

THE TAX ADMINISTRATION AND MISCELLANEOUS TAXES ACT

85          Part I is renumbered as Part I.1 and the following is added as Part I:

PART I

TAX ADMINISTRATION

DIVISION 1

GENERAL

Definitions

1(1)        The following definitions apply in this Part.

"assessment" means an assessment made by the director under section 46. (« cotisation »)

"bulk fuel" means more than 200 litres of fuel that is not stored in a fuel tank as part of the fuel system of a vehicle or other machine. (« carburant en vrac »)

"carrier licence" means a licence that

(a) is issued under the law of a jurisdiction whose government is a party to the International Fuel Tax Agreement referred to in the fuel tax Acts; and

(b) is issued to a person who owns or operates one or more motor vehicles, as defined in The Highway Traffic Act, used for the interjurisdictional carriage of passengers or goods. (« licence de transporteur »)

"cigarette" has the same meaning as in The Tobacco Tax Act. (« cigarette »)

"collector" means

(a) a person who is required by or under a tax Act to collect and remit tax; and

(b) any other person who collects an amount as tax, otherwise than as a person employed under the minister. (« collecteur »)

"deputy collector" means a person appointed under a tax Act by a collector to collect and remit tax to the collector. (« collecteur adjoint »)

"director" means

(a) the Deputy Minister of Finance; or

(b) an Assistant Deputy Minister of Finance;

except where it refers to a director of a corporation. (« directeur »)

"financial institution" means a bank, credit union, trust company or other similar institution. (« établissement financier »)

"fuel" means gasoline as defined in The Gasoline Tax Act and motive fuel as defined in The Motive Fuel Tax Act. (« carburant »)

"fuel tax Act" means The Gasoline Tax Act and The Motive Fuel Tax Act. (« loi fiscale sur les carburants »)

"information return" includes a tax return under a tax Act. (« déclaration de renseignements »)

"marked fuel" means

(a) marked or coloured gasoline as defined in The Gasoline Tax Act; and

(b) marked or coloured motive fuel as defined in The Motive Fuel Tax Act. (« carburant marqué »)

"marked tobacco" means cigarettes or fine cut tobacco the packaging of which is marked or stamped for the tax purposes of Manitoba as required by The Tobacco Tax Act. (« tabac marqué »)

"minister" means the Minister of Finance. (« ministre »)

"person" includes a partnership. (« personne »)

"Personal Property Registry" means the Personal Property Registry under The Personal Property Security Act. (« Bureau d'enregistrement »)

"reassessment" means a reassessment made by the director under section 46. (« nouvelle cotisation »)

"receiver, trustee or other like person" means a person who as assignee, liquidator, administrator, trustee, receiver, receiver-manager, secured or unsecured creditor, or as agent of any such person, takes control or possession of money or other property of another person.  But it does not include a trustee in bankruptcy except in section 16. (« séquestre, fiduciaire ou autre personne exerçant des fonctions semblables »)

"record" means information that

(a) is recorded or stored by mechanical, electronic, magnetic, optical or any other means; and

(b) is recorded or stored in understandable form or is capable of being produced or reproduced in understandable form. (« document »)

"secured creditor"

(a) means a person who has a security interest in property of another person or who, in connection with a security interest, acts for or on behalf of the person who has the security interest; and

(b) includes a trustee appointed under a trust deed relating to a security interest, a receiver or receiver-manager appointed by a secured creditor or by a court on the application of a secured creditor, a sequestrator, and any other person performing a similar function. (« créancier garanti »)

"security interest"

(a) means an interest in property that secures payment or performance of an obligation; and

(b) includes an interest created by or arising out of a debenture, mortgage, lien, pledge, charge, deemed or actual trust, assignment or encumbrance of any kind. (« sûreté »)

"tangible personal property" means tangible personal property as defined in The Retail Sales Tax Act. (« biens personnels corporels »)

"tax" means a tax imposed under a tax Act. (« taxe »)

"taxable service" means a taxable service as defined in The Retail Sales Tax Act. (« service taxable »)

"tax Act" means any of the following enactments:

(a) The Corporation Capital Tax Act;

(b) The Gasoline Tax Act;

(c) The Health and Post Secondary Education Tax Levy Act;

(d) The Mining Tax Act;

(e) The Motive Fuel Tax Act;

(f) The Retail Sales Tax Act;

(g) The Tobacco Tax Act;

(h) this Part and Part I.1 of this Act;

(i) a regulation made under any enactment referred to in clauses (a) to (h). (« loi fiscale »)

"Tax Appeals Commission" means the Tax Appeals Commission established under section 2 of The Tax Appeals Commission Act. (« Commission d'appel des impôts et des taxes »)

"tax authorization" means

(a) an RST number under The Retail Sales Tax Act; and

(b) a licence or permit under a tax Act. (« autorisation fiscale »)

"tax debt" of a person means the total of all amounts that the person is required to pay or remit under a tax Act, whether as tax, or as a penalty, interest, fee or other charge, other than a fine or surcharge payable upon conviction of an offence. (« dette fiscale »)

"tax debtor" means a person who is liable to pay or remit a tax debt. (« débiteur fiscal »)

"tax officer" means

(a) the director; and

(b) a person designated by the director as a tax officer under section 4. (« agent du fisc »)

"taxpayer" means

(a) a person on whom a tax is imposed;

(b) a collector; and

(c) a person who is liable under a tax Act for all or any part of another taxpayer's tax debt. (« contribuable »)

"tobacco" means tobacco or a tobacco product as defined in The Tobacco Tax Act. (« tabac »)

"unit", in relation to tobacco, means a unit as defined in The Tobacco Tax Act. (« unité »)

"unmarked tobacco" means cigarettes or fine cut tobacco the packaging of which is not marked or stamped for the tax purposes of Manitoba as required by The Tobacco Tax Act. (« tabac non marqué »)

Solicitor-client privilege

1(2)        Subject to subsections (3) and (4), nothing in this Part shall be construed to affect a solicitor-client privilege.

Process for dealing with solicitor-client privilege

1(3)        Section 232 of the Income Tax Act (Canada) applies, with necessary changes, to

(a) any requirement to produce or make available for inspection, audit or examination; or

(b) any attempt to inspect, examine or seize;

any record in respect of which a solicitor-client privilege is claimed and has not been waived by the person entitled to waive it.

No privilege in respect of accounting record

1(4)        For the purposes of this Part, no solicitor-client privilege exists or may be claimed in respect of an accounting record of a lawyer or any supporting voucher or cheque for such an accounting record.

Crown bound

2           This Act binds the Crown.

Director may delegate

3(1)        The director may delegate to a person, with or without conditions, any power or duty conferred or imposed on the director by a tax Act.

Director may continue to act

3(2)        The director may continue to exercise a power or perform a duty that he or she has delegated.

Designation of tax officer

4(1)        The director may designate a person or class of persons, with or without conditions, as tax officers for the purpose of the administration and enforcement of any or all of the tax Acts.

Status as peace officer

4(2)        For the purpose of The Summary Convictions Act, a tax officer for the purpose of the administration and enforcement of a tax Act is deemed to be a peace officer in relation to that tax Act.

Minister or director may approve forms

5           The minister or the director may approve forms, including electronic forms, for use under a tax Act, and may require them to be used.

Information confidential

6(1)        No person employed in the administration of a tax Act may disclose any personal or confidential record or information obtained under a tax Act, except

(a) with the consent of the person to whom the record or information relates;

(b) in the case of personal information, as permitted by The Freedom of Information and Protection of Privacy Act;

(c) to the extent required for the administration or enforcement of a tax Act or any other Act that imposes a tax or levy or, with the approval of the minister, to the extent required for the administration or enforcement of any other enactment;

(d) as required or permitted under Part 5 of The Electronic Commerce and Information Act or under a regulation or an agreement made under that Part; or

(e) as permitted under subsection (2) or the regulations.

Reciprocal exchange of information

6(2)        The minister may permit records or information, including personal information, obtained under a tax Act to be given or shown to any person employed by the government of Canada or of another province, territory, country or state if

(a) there is an agreement or arrangement with that government for the reciprocal exchange of records or information relating to the administration or enforcement of laws that impose a tax or levy; and

(b) the minister is satisfied that the records or information provided are required for the administration or enforcement of laws that impose a tax or a levy and will be used by that government only for that purpose.

Notice of arrangements and agreements

6(3)        When an agreement or an arrangement referred to in subsection (2) is entered into, the minister must publish in The Manitoba Gazette a notice summarizing its terms.

Conflict

6(4)        In the event of a conflict between this section and a provision of The Freedom of Information and Protection of Privacy Act, this section prevails.  But nothing in this section shall be construed to limit or deny a person's right to access his or her own personal information.

Service of documents

7(1)        A document to be served under a tax Act may be served

(a) in the case of a document to be served on the minister, by delivering it to the office of the minister or the deputy minister, or sending it by prepaid mail addressed to either office;

(b) in the case of a document to be served on the director, by delivering it to the office of the director, or sending it by prepaid mail addressed to that office;

(c) in the case of a document to be served on the Tax Appeals Commission, by delivering it to the office of the Tax Appeals Commission, or sending it by prepaid mail addressed to that office;

(d) in the case of a document to be served on a partnership,

(i) by giving it to a general partner of the partnership, or to an adult employed at a place of business of the partnership, or

(ii) by sending it by prepaid mail addressed to a general partner of the partnership, to the partnership or to a name under which the partnership carries on business, at the address of the partner or partnership last known to the director;

(e) in the case of a document to be served on any other person,

(i) by giving it to the person or to an adult employed at a place of business of the person, or

(ii) by sending it by prepaid mail addressed to the person or to a name under which the person carries on business, at the address of the person or the person's business last known to the director; or

(f) in any other manner prescribed by regulation.

Service by mail

7(2)        If a document is sent to a person by mail in accordance with subsection (1), it is deemed to have been served on the person

(a) in the case of registered mail, when it is received by the person or by another person on the person's behalf; and

(b) in the case of certified or ordinary mail, when it is delivered by the post office to the address to which it was mailed.

Time of mailing and delivery

7(3)        Unless the contrary is shown, a document mailed by the director or the Tax Appeals Commission is deemed to have been

(a) mailed on the date of the document; and

(b) delivered to the address to which it was mailed on the third day after the day it was mailed, not including weekends and holidays.

Service by delivery

7(4)        A document delivered to the office of a person in accordance with subsection (1) is deemed to have been served on the person on the day it was delivered.

Evidence of service

8           A statutory declaration as to how and when a document was served is proof of those facts unless the contrary is shown.

Earlier due date

9           Despite any other provision of a tax Act, when the deadline for doing anything that is required or permitted to be done by or under a tax Act occurs on a weekend or a holiday, that deadline is deemed to occur on the last preceding day that does not fall on a weekend or a holiday.

DIVISION 2

COMPLIANCE

TAX AUTHORIZATIONS

Reasons not to issue tax authorization

10(1)       The director may refuse to issue a tax authorization to a person who

(a) has been convicted of an offence under a tax Act;

(b) is not willing to undertake any duty or obligation he or she would have as the holder of a tax authorization;

(c) is in breach of, or has failed to comply with,

(i) a provision of a tax Act,

(ii) an order or demand made under a tax Act, or

(iii) the terms or conditions of a tax authorization or collector's agreement under a tax Act;

(d) provides incomplete, false, misleading or inaccurate information or records in support of his or her application for the tax authorization; or

(e) in the opinion of the director, does not require a tax authorization.

Additional reasons not to issue tax authorization

10(2)       The director may also refuse to issue

(a) a licence or permit under The Tobacco Tax Act to a person who has been convicted of an offence under The Non-Smokers Health Protection Act;

(b) a permit under The Tobacco Tax Act for possessing unmarked tobacco, if the director is not satisfied that the tobacco will be dealt with in accordance with that Act or the regulations under that Act;

(c) a permit under The Tobacco Tax Act for producing Manitoba tear tape as defined under that Act, if the director is not satisfied that the person seeking the permit will

(i) take reasonable steps to ensure the security of the tear tape in the applicant's possession,

(ii) mark the tear tape produced by the applicant in a manner that allows it to be identified as tear tape produced by the applicant,

(iii) keep adequate records of the quantity of tear tape produced by the applicant, and

(iv) co-operate with an inspection, examination or audit by a tax officer or peace officer;

(d) a tax authorization under a fuel tax Act or The Retail Sales Tax Act to a person who was in possession or control of an intoxicating substance or paraphernalia, as defined in section 27.1 of The Public Health Act, at the time it was seized under that Act, if a justice has made an order under section 27.4 of that Act forfeiting the intoxicating substance or paraphernalia.

Cancellation

10(3)       Subject to subsection (4), the director may, by written order, cancel a person's tax authorization for any reason for which he or she may refuse to issue such a tax authorization under subsection (1) or (2).  But a carrier licence may be cancelled only if it was issued by the director.

Opportunity to make submission

10(4)       Before cancelling a person's tax authorization or deciding to refuse to issue a tax authorization to a person, the director must notify the person in writing

(a) that he or she intends to cancel or refuse to issue the tax authorization, and why; and

(b) that the person may, within 14 days after the notice is served on the person, make a submission as to why the tax authorization should not be cancelled or refused.

Temporary suspension

10(5)       If the director believes that a reason to cancel a person's tax authorization exists, the director may, by written order, suspend the tax authorization for up to 30 days.  The tax authorization is not valid during the period of the suspension.

When cancellation or suspension becomes effective

10(6)       Subject to subsection (7), an order to cancel or suspend a person's tax authorization becomes effective when it is served on the person or at the date and time specified in the order, whichever is later.

Automatic cancellation or refusal to issue

10(7)       If a notice under subsection (4) states that the proposed decision or order will become effective at the end of the 14-day period for making a submission unless a submission is made to the director within that period, the decision or order becomes effective at the end of that period, without further notice, if no submission is received within that period.

Appeal of director's decision or order

10(8)       The director's decision or order may be appealed to the Court of Queen's Bench under Division 4 (Appeals).

Return of tax authorization

11(1)       The holder of a tax authorization issued by the director must return it immediately to the director, along with any additional copies of it in the holder's possession, when

(a) the tax authorization is cancelled or suspended under section 10; or

(b) the holder ceases to carry on the business or activity for which the tax authorization was issued.

In the case of an RST number, the holder must return all original copies of the document used to issue the number to the holder.

Removal of carrier decals

11(2)       When the holder of a carrier licence is required to return it to the director, the holder must immediately remove from each motor vehicle operated under the licence any carrier decals that were issued in connection with the licence.

REPORTING AND PAYMENT OF TAX

Director may require bond

12(1)       The director may require a taxpayer or prospective taxpayer to provide the government with a bond to secure the performance of his or her obligation to pay or remit tax when it is due.

Amount of bond

12(2)       The terms, conditions and amount of the bond must be satisfactory to the director.

Other form of security

12(3)       The director may accept a letter of credit or a deposit of cash or securities in lieu of a bond.

Payment by purchaser applied first to tax

13(1)       A payment by a purchaser to a collector or deputy collector in respect of a purchase of property or services is deemed to be applied to the tax payable in respect of that purchase until the tax is paid in full and before any part of the payment is applied to the purchase price.

Payment by deputy collector applied first to tax

13(2)       A payment by a deputy collector to a collector is deemed to be applied to the payment of any tax collected by the deputy collector and to be remitted to the collector before any part of the payment is applied to any amount otherwise payable by the deputy collector to the collector.

Definitions

14(1)       The following definitions apply in this section.

"extra-provincial contractor" means a person who has entered into a contract to be performed in Manitoba, but does not include a person who at the time of entering into the contract and during the immediately preceding 12 months,

(a) was an individual resident in Manitoba; or

(b) had a permanent place of business in Manitoba. (« entrepreneur extraprovincial »)

"principal" means a person with whom an extra-provincial contractor has entered into a contract to be performed in Manitoba. (« commettant »)

Contractor to provide information

14(2)       An extra-provincial contractor who, in connection with a contract to be performed in Manitoba, sells property or services in Manitoba or brings into Manitoba, or receives in Manitoba, tangible personal property or taxable services acquired for the contractor's own use or consumption or for the use or consumption of others at the contractor's expense, must

(a) report the matter to the director; and

(b) provide the director with a copy of all relevant invoices and other information that the director requires in respect of the contract, the property or the services.

Extra-provincial contractor to provide security

14(3)       For the purpose of securing an extra-provincial contractor's obligation to pay or remit tax under The Corporation Capital Tax Act, The Retail Sales Tax Act or The Health and Post Secondary Education Tax Levy Act in respect of a contract to be performed in Manitoba, including any tax to be paid or remitted in respect of the property or services referred to in subsection (2), the contractor must provide a bond that

(a) contains terms and conditions satisfactory to the director; and

(b) secures the payment of an amount determined by the director, which must not exceed 9.15% of the total value of the consideration payable under the contract.

Other form of security

14(4)       The director may accept a letter of credit or a deposit of cash or securities in lieu of a bond.

Liability of principal

14(5)       If the extra-provincial contractor has not provided security as required by this section,

(a) the principal is liable, upon assessment under section 46, for the tax and any penalties and interest to be paid or remitted by the contractor in respect of the contract or the property and services referred to in subsection (2); and

(b) payment of that tax, and any related penalties and interest, may be enforced against the principal or the contractor, or both.

Principal entitled to recover amount paid

14(6)       A principal who pays an amount under subsection (5) in respect of tax, penalties or interest owing by an extra-provincial contractor is entitled to recover that amount from the contractor, and may

(a) withhold that amount from money owing by the principal to the contractor; or

(b) recover it in a court of competent jurisdiction as a debt owing by the contractor to the principal.

Director may impose reporting or remittance requirements

15(1)       Despite the reporting and remittance requirements of a tax Act, the director may, by written order, require a taxpayer to do one or more of the following:

(a) file an information return, whether or not the taxpayer has previously filed one;

(b) provide reports or file information returns in addition to, or earlier or more frequently than, those required by the tax Act;

(c) pay or remit tax, and any applicable interest and penalties, earlier or more frequently than required by the tax Act;

(d) pay or remit tax, and any applicable interest and penalties, by direct deposit to a government account at a financial institution;

(e) in the case of a collector, require the collector

(i) to establish a trust account for the amounts to be collected as tax under a tax Act, and

(ii) to deposit those amounts in the trust account until they are remitted to the minister.

Director may extend filing or payment deadline

15(2)       The director may, with or without conditions, extend the deadline for a taxpayer to file a report or information return or to pay or remit tax that would otherwise apply under a tax Act or under an order under subsection (1).

Reporting by receiver, trustee, etc.

16(1)       Every person who, as receiver, trustee or other like person, takes control or possession of any business or property of a taxpayer who is or was carrying on a business in Manitoba in relation to which any tax is payable must notify the director in writing, within 10 days after taking control or possession of the business or property, that the person has taken control or possession of it.

Receiver, trustee or other like person to file returns

16(2)       The receiver, trustee or other like person, in addition to any other duty that he or she has in that capacity, must file reports and information returns that become due, and pay tax or remit tax that becomes due or payable,

(a) during or in respect of any period during which he or she is acting as a receiver, trustee or other like person in relation to the business or property of the taxpayer; or

(b) in respect of any taxable transaction in which he or she participates as a receiver, trustee or other like person in relation to the business or property of the taxpayer.

Director may issue certificate

16(3)       The director, upon being satisfied that

(a) all reports and information returns to be filed under subsection (2) have been filed; and

(b) any tax to be paid or remitted under subsection (2) has been paid or remitted,

may issue a certificate to the receiver, trustee or like person stating he or she has no further liability under this section.

RECORDS

Taxpayer to maintain records

17(1)       A taxpayer must maintain records in accordance with

(a) this section and any applicable regulations;

(b) any order or agreement made under a tax Act; and

(c) the terms and conditions of any tax authorization held by the taxpayer.

Carrier to maintain records

17(2)       The holder of a carrier licence issued by the director must maintain records in accordance with any applicable regulations and the terms and conditions of the licence, and must provide access to those records

(a) to a tax officer at his or her request; or

(b) to an official from a jurisdiction whose government is a party to the International Fuel Tax Agreement referred to in the definition "carrier licence" in section 1, at the request of the official or the director.

Records must be adequate

17(3)       A taxpayer's records must be adequate to enable the following to be determined or verified:

(a) the amount of any tax, interest and penalties to be paid or remitted by the taxpayer;

(b) the taxpayer's entitlement to any credit or refund;

(c) the entitlement to a tax exemption claimed by the taxpayer or applied by the taxpayer in a transaction with another person;

(d) the taxpayer's compliance with the tax Acts and any applicable tax authorization, order or agreement.

Director may order records to be kept

17(4)       If the director considers a taxpayer's records to be inadequate for the proper administration and enforcement of a tax Act, the director may, by written order, require the taxpayer to do one or more of the following:

(a) begin maintaining the types of records specified in the order, and to maintain them in the manner specified;

(b) create or complete records for a specified period.

The order may specify a deadline for the taxpayer to comply with the order.

How long records must be kept

18(1)       The records that a taxpayer is required to maintain under a tax Act must be preserved by the taxpayer until

(a) he or she obtains a written authorization from the director allowing them to be destroyed; or

(b) they may be destroyed under subsection (2);

whichever occurs first.

When records may be destroyed

18(2)       Subject to subsections (3) and (4), a taxpayer may destroy records when all of the following conditions are met with respect to those records:

(a) they relate to a period for which all returns have been filed and for which the tax, including any related interest or penalty, has been paid or remitted as required by a tax Act;

(b) they relate to a fiscal year of the taxpayer that ended more than six years before the beginning of the current fiscal year;

(c) there is no dispute as to the amount to be paid or remitted for the period to which the records relate;

(d) they do not relate to a period or matter that is currently the subject of an inspection, audit or examination.

Records requiring authorization to be destroyed

18(3)       The following records may be destroyed only with the written authorization of the director:

(a) general ledgers;

(b) records required to determine tax payable under The Mining Tax Act and any interest or penalty payable in respect of that tax.

Extended preservation

18(4)       If the director has, by written notice, required the taxpayer to keep records for a specified period to enable an inspection, examination or audit to be carried out or completed, the taxpayer must not destroy the records until the end of that period or until authorized by the director in writing to do so, whichever occurs first.

Preserving electronic records

18(5)       A taxpayer who maintains records in electronic form must ensure that, for as long as they are required to be preserved, they

(a) remain complete and unaltered, apart from any changes or additions made in the normal course of communication, storage or display, from the time they were first made in final form, whether as a paper document or otherwise;

(b) are accessible by the person who is required to retain them; and

(c) are capable of being printed and of being produced in electronically readable format for inspection, examination or audit by a tax officer.

INSPECTIONS

Tax authorization to be produced for inspection

19          The holder of a tax authorization must produce it for inspection by a tax officer upon request by the tax officer.

Records to be made available for inspection, etc.

20          A taxpayer must

(a) make the records that he or she is required to maintain under a tax Act available for inspection, examination or audit by a tax officer at the place where they are maintained; and

(b) if the records are not maintained in Manitoba, pay to the minister, upon receipt of a statement from the director, the amount charged by the director for expenses incurred in inspecting, examining or auditing the records at the place where they are maintained.

Order to produce records, etc

21(1)       The director may, for any purpose relating to the administration or enforcement of a tax Act, by written order, require a person to

(a) provide any information; or

(b) make available or produce for inspection, examination, audit or testing any records or things in the person's possession or control that relate to the administration of the tax Act.

Who may be required to produce records, etc.

21(2)       The order may be addressed and given to

(a) a taxpayer;

(b) a person who deals with or has dealt with a taxpayer; or

(c) a director, officer, agent or employee of a taxpayer or of a person who deals with or has dealt with a taxpayer.

Contents of order

21(3)       The order

(a) must state the name of

(i) the person to whom it is directed, and

(ii) if different, the name of the taxpayer to whom the records or other things to be produced or made available for inspection, audit, examination or testing relate;

(b) must specify or describe the information to be provided or the records or other things to be produced or made available and where to produce them or make them available;

(c) may direct the manner in which records or other things are to be produced or made available, including the format in which electronically maintained records are to be produced or made available; and

(d) may specify a deadline for the person to comply with the order.

Director may assess penalty

21(4)       A person who fails to comply with an order under this section is liable, upon assessment under section 46, to a penalty of not more than $200. for each day that the failure continues.

General authority to inspect

22(1)       Subject to any conditions imposed by the director, a tax officer may carry out any inspection, examination, audit or test reasonably required to

(a) determine compliance with a tax Act or the terms and conditions of

(i) an order or agreement made under a tax Act, or

(ii) a tax authorization issued under a tax Act;

(b) determine the existence or amount of a tax debt;

(c) verify the accuracy or completeness of an information return or other report, record or information filed with or otherwise provided to the minister or the director;

(d) determine the value of a property, service or transaction in respect of which tax is payable; or

(e) perform any other duty or function the director or tax officer considers necessary or advisable in the administration of a tax Act.

Right of entry

22(2)       In order to perform a duty or function under subsection (1) (in this section referred to as an "inspection"), a tax officer may at any reasonable time, without a warrant, enter

(a) any business premises; or

(b) any other premises or place where the tax officer has reasonable grounds to believe records relevant to the administration or enforcement of a tax Act are kept.

Officer to show identification

22(3)       A tax officer must show his or her tax officer identification card if requested to do so in the context of an inspection.

Assistance to tax officer

22(4)       The owner or person in charge of the place of inspection or having custody or control of the relevant records must

(a) produce or make available to the tax officer all records and property that the tax officer requires for the inspection;

(b) provide any assistance or additional information, including personal information, that the tax officer reasonably requires to perform the inspection; and

(c) upon request, provide written answers to the tax officer's questions.

Electronic records

22(5)       In order to inspect records that are maintained electronically at the place of inspection, the tax officer may require the owner or person in charge of the premises or of the relevant records to produce the records in the form of a printout or to produce them in an electronically readable format.

Tax officer may make copies

22(6)       The tax officer may use equipment at the place of inspection to make copies of relevant records, and may remove the copies from the place of inspection for further examination.

Tax officer may remove records to make copies

22(7)       A tax officer who is not able to make copies of records at the place of inspection may remove them from the place of inspection to make copies. The tax officer must make the copies as soon as practicable and return the original records to the person or place from which they were removed.

Copies as evidence

23          A document certified by the minister or a tax officer to be a printout or copy of a record obtained under a tax Act

(a) is admissible in evidence without proof of the office or signature of the person purporting to have made the certificate; and

(b) has the same probative force as the original record.

Warrant to enter and inspect

24(1)       A justice, upon being satisfied by information on oath that

(a) a tax officer has been refused entry to any premises or place to carry out an inspection under section 22; or

(b) there are reasonable grounds to believe that

(i) a tax officer will be refused entry to any premises or place to carry out an inspection under section 22, or

(ii) if a tax officer were to be refused entry to any premises or place to carry out an inspection under section 22, delaying the inspection in order to obtain a warrant on the basis of the refusal could be detrimental to the inspection;

may at any time issue a warrant authorizing a tax officer and any other person named in the warrant to enter the premises or place and carry out an inspection under section 22.

Application without notice

24(2)       A warrant under this section may be issued upon application without notice.

Right to take fuel samples

25(1)       When making an inspection under section 22 in relation to a fuel tax Act, a tax officer may, without a warrant, examine the fuel in any tank, container or other receptacle, or in the fuel system of a motor vehicle or other machine.

Stopping vehicle to examine fuel

25(2)       For any purpose relating to a fuel tax Act, a tax officer may, without a warrant, signal or request the operator of a vehicle to stop the vehicle to enable the officer to examine its fuel and take a sample of it

(a) when the operator is a regular purchaser of marked fuel;

(b) when the officer has reasonable grounds to believe that the operator is using marked fuel for an unlawful purpose; or

(c) when the vehicle is being operated in an area of Manitoba where marked fuel is ordinarily used or made available for use.

The operator must immediately bring the vehicle to a safe stop and allow the officer to examine the fuel and take a sample of it.

Stopping vehicle operated under carrier licence

25(3)       A tax officer may, without a warrant, signal or request the operator of a vehicle that appears to be operated under a carrier licence to stop the vehicle to enable the officer to inspect the licence and any related carrier decals affixed to the vehicle.  The operator must immediately bring the vehicle to a safe stop and allow the officer to carry out the inspection.

INVESTIGATION, SEARCH AND SEIZURE

General authority of tax officer

26          Subject to any conditions imposed by the director, a tax officer may carry out any investigation reasonably required for the enforcement of a tax Act.

Warrant for search and seizure

27(1)       A justice, upon being satisfied by information on oath that there are reasonable grounds to believe that

(a) an offence under a tax Act is being or has been committed; and

(b) there is in a building, vehicle, receptacle or place any thing that there are reasonable grounds to believe will afford evidence of an offence under a tax Act;

may at any time issue a warrant authorizing a tax officer, and any other persons named in the warrant, to enter and search the building, vehicle, receptacle or place for any such thing, and to seize it and as soon as practicable bring it before a justice, or report on it to a justice, to be dealt with according to law.

Warrant re unmarked tobacco held by common carrier

27(2)       A justice, upon being satisfied by information on oath that there are reasonable grounds to believe that unmarked tobacco

(a) is to be found in a building, vehicle, receptacle or place in Manitoba that is occupied or controlled by a common carrier;

(b) is not in the possession or apparent possession of a person, other than the common carrier or an agent or employee of the common carrier acting on the common carrier's behalf; and

(c) is not addressed or directed for delivery to a person who is lawfully entitled to possess it;

may at any time issue a warrant authorizing a tax officer, and any other persons named in the warrant, to enter and search the building, vehicle, receptacle or place for the unmarked tobacco, and to seize it and as soon as practicable bring it before a justice, or report on it to a justice, to be dealt with according to law.

Application without notice

27(3)       A warrant under this section may be issued upon application without notice.

Tax officer may secure evidence

27(4)       A tax officer who believes on reasonable grounds that conditions exist for obtaining a warrant under this section to enter and search a building, vehicle, receptacle or place may do anything reasonably necessary to secure the building or place — or to secure or remove the vehicle, receptacle or other thing — pending the application for such a warrant.

Search and seizure without warrant

28(1)       If a tax officer believes on reasonable grounds that the conditions for obtaining a warrant under section 27 exist, but by reason of exigent circumstances it would be impracticable to obtain one, the tax officer may exercise any of the powers he or she would be able to exercise under such a warrant.

Seizure without warrant

28(2)       A tax officer who is lawfully present in a place under the authority of a warrant or otherwise in the execution of his or her duties may, without a warrant, seize any thing that the officer believes on reasonable grounds will afford evidence in respect of an offence under a tax Act.

Seizure of vehicle or container

28(3)       If a thing to be seized by a tax officer, either with or without a warrant, is found in a vehicle or container and it is impracticable in the circumstances to remove the thing from the vehicle or container in order to seize it, the tax officer may also seize the vehicle or container.

Seizure of abandoned tobacco

29          A tax officer may, without a warrant, seize tobacco found in a building, vehicle, receptacle or place in Manitoba where no person has a reasonable expectation of privacy, if the officer believes on reasonable grounds that the tobacco is

(a) abandoned; or

(b) not in the possession or apparent possession of any person in Manitoba.

Stopping vehicle on suspicion of tobacco offence

30          A tax officer who believes on reasonable grounds that a vehicle contains any thing that affords evidence that an offence relating to The Tobacco Tax Act is being or has been committed, may, without a warrant, signal or request the operator of the vehicle to stop.  The operator must immediately bring the vehicle safely to a stop, and must not proceed until permitted to do so by the officer.

Tax officer may seize bulk fuel, vehicle, etc.

31(1)       A tax officer who believes on reasonable grounds that a person who has not been appointed a collector under a fuel tax Act

(a) has imported bulk fuel into Manitoba or acquired bulk fuel otherwise than from a licensed dealer or collector under a fuel tax Act, and has not reported it and paid tax as required; or

(b) is in possession of bulk fuel that has been imported into Manitoba or acquired otherwise than from a licensed dealer or collector under a fuel tax Act, and for which the tax has not been paid as required;

may, without a warrant, seize the bulk fuel and any vehicle, trailer or container being used to transport or store the fuel.

Stopping vehicle to seize bulk fuel

31(2)       If the bulk fuel that a tax officer may seize under this section is being transported, the tax officer may, without a warrant, signal or request the operator of the vehicle to stop.  The operator must immediately bring the vehicle safely to a stop, and must not proceed until permitted to do so by the tax officer.

DISPOSITION OR RELEASE OF SEIZED ITEMS

Property seized without a warrant

32          Except as otherwise provided in sections 33 to 36, a tax officer who seizes any thing under the authority of this Act without a warrant must, as soon as practicable,

(a) return the seized thing, upon being issued a receipt for it, to the person lawfully entitled to possess it, if the officer is satisfied that

(i) the person is entitled to possess it, and

(ii) the continued detention of the thing is not required for the purpose of an investigation or a trial or other proceeding; or

(b) if the officer is not satisfied as described in clause (a), bring the seized thing before a justice, or report on it to a justice, to be dealt with according to law as if it had been seized under the authority of a warrant.

Return of records

33(1)       Subject to subsection (2), any records seized by a tax officer must be returned as follows:

(a) if information in the records is reasonably required for the conduct of a person's business, the records, or copies of them, must be provided to the person within a reasonable time after the person requests the director in writing for them;

(b) the original records must be returned, within 180 days after they were seized or within any longer period of time allowed by subsection (2), to the person from whom they were seized.

Justice may extend time to return records

33(2)       The director may apply to a justice for an order extending the 180-day period for original records to be returned.  The justice may

(a) dismiss the application, in which case the records must be returned within 30 days after the date of the court order; or

(b) extend the time for returning the records, subject to any conditions the court sees fit, if the extension is necessary for

(i) existing or anticipated proceedings relating to an alleged contravention of a tax Act, or

(ii) a continuing investigation into a suspected contravention of a tax Act.

Decision final

33(3)       The decision of the justice is final and cannot be appealed.

Release of bulk fuel

34(1)       Bulk fuel and any vehicle, trailer or container seized under section 31 are to be released to the person from whom they were seized upon payment to the minister, within seven days after the date of the seizure, of an amount equal to three times the tax that would be payable on a purchase of the bulk fuel by a purchaser.

Sale of bulk fuel

34(2)       If the bulk fuel is not released under subsection (1), the minister must

(a) cause the fuel to be sold and the proceeds to be held in trust for payment or distribution in accordance with subsection (4); and

(b) as soon as practicable, release any vehicle, trailer or container that was seized to the person from whom it was seized.

Interest on proceeds

34(3)       While the proceeds are held in trust, they are to be credited with interest at the rate established by the minister to be the government's average cost of borrowing during the relevant period.

Disposition of proceeds and interest

34(4)       The proceeds and accrued interest are to be paid or applied as follows:

(a) if no person is found guilty of an offence under section 79 in connection with the bulk fuel, the proceeds and interest are to be paid to the person who was lawfully entitled to the fuel at the time it was seized;

(b) if a person is found guilty of an offence under section 79 in connection with the bulk fuel, the proceeds and interest are to be paid or applied as follows:

(i) first, to pay any fine imposed in respect of the offence,

(ii) second, to pay the costs of the seizure, storage and sale of the bulk fuel, and

(iii) the balance, if any, to the person;

(c) despite clause (b), if a person charged with an offence under section 79 in connection with the bulk fuel agrees, before entering a plea to the charge, to pay the amount referred to in subsection (1), the proceeds and interest may be paid or applied as follows:

(i) first, to pay the amount referred to in subsection (1),

(ii) second, to pay the costs of the seizure, storage and sale of the bulk fuel, and

(iii) the balance, if any, to the person.

Compensation where cost of fuel exceeds proceeds

34(5)       If a person entitled to proceeds under clause (4)(a) establishes to the satisfaction of the director that his or her cost of the seized fuel exceeds those proceeds, the minister must pay to the person an additional amount equal to the excess plus an amount equal to interest on the excess at the rate that applies to the proceeds.

Tax deemed to be paid

34(6)       Upon payment of the amount referred to in subsection (1), any tax payable under a fuel tax Act in respect of the bulk fuel is deemed to have been paid.

Refund

34(7)       A person who pays the amount referred to in subsection (1) is entitled to a refund of that amount, plus interest at the rate established by the minister to be the government's average cost of borrowing during the relevant period, if he or she

(a) is not charged with an offence under section 79 in connection with the bulk fuel; or

(b) having been charged, is not found guilty of the offence.

Disposition of perishable or dangerous items

35          Subject to section 34, when a tax officer seizes any perishable or dangerous thing as evidence of the commission of an offence, it may be disposed of in accordance with the regulations or, in the absence of regulations, as instructed by the director.

Release of seized tobacco

36(1)       Up to 20 units of seized tobacco may be released to the person from whom they were seized upon payment, within seven days after they were seized, of an amount equal to three times the tax that would be imposed under section 2 of The Tobacco Tax Act on a purchase of those units by a purchaser.  Upon payment of that amount, the tax payable under The Tobacco Tax Act in respect of the units released is deemed to have been paid.

Disposition of seized tobacco

36(2)       Any tobacco that is seized under this Act and not released under subsection (1) may be disposed of in accordance with the regulations or, in the absence of regulations, as instructed by the director.

Release or payment — no conviction

36(3)       If no person is found guilty of an offence under this Part in connection with the seized tobacco, the director must, upon application by the person entitled to the tobacco,

(a) release the tobacco to the person, unless

(i) the tobacco has been disposed of under subsection (2), or

(ii) any tax to be paid or remitted in respect of the tobacco has not been paid, remitted or accounted for; or

(b) if the tobacco cannot be released under clause (a), pay compensation to the person in an amount equal to

(i) the person's cost of the tobacco, if it is established by the person to the satisfaction of the director, or

(ii) if the person's cost of the tobacco is not established to the satisfaction of the director, the price of the tobacco at the time of seizure as determined by the director,

plus interest on that amount from the date of the seizure, calculated at the rate established by the minister to be the government's average cost of borrowing during the relevant period.

Application for release or compensation

36(4)       An application for the release of tobacco under clause (3)(a) or for compensation under clause (3)(b) must be made to the director in writing within 90 days after

(a) the resolution of a prosecution for an offence in connection with the seized tobacco; or

(b) the person is notified by the director that no person will be charged with an offence in connection with the seized tobacco.

If the application is not made within the 90-day period, the tobacco and any proceeds of disposition of the tobacco are forfeited to the Crown.

Tobacco to be marked before release

36(5)       Before any cigarettes or fine cut tobacco is released under subsection (1) or clause (3)(a), the packaging of the cigarettes or fine cut tobacco must be marked or stamped for the tax purposes of Manitoba.

Forfeiture on conviction

36(6)       If a person is found guilty of an offence under this Part in connection with the seized tobacco, the tobacco and any proceeds of disposition of the tobacco are forfeited to the Crown.

Forfeiture of abandoned or unmarked tobacco

36(7)       When tobacco is seized in the following circumstances, it is forfeited to the Crown and subsections (1) and (3) to (6) do not apply:

(a) a seizure of tobacco under section 29 (abandoned tobacco);

(b) a seizure of unmarked tobacco under the authority of a warrant issued under subsection 27(2) or under the authority of subsection 28(1) where the tax officer had reasonable grounds to believe that the conditions for obtaining such a warrant existed.

DIVISION 3

TAX DEBT

LIABILITY FOR TAX DEBT

Tax debt

37(1)       A tax debt is a debt due to the government by the tax debtor.

Tax debt not affected by offence

37(2)       A person's liability for a tax debt is not affected by the fact that a person is prosecuted or convicted for an offence in relation to the tax debt.

Interest

38(1)       A tax debt bears interest in accordance with the regulations made under The Financial Administration Act until it is paid in full.

When interest begins to accrue

38(2)       Interest on a tax debt accrues

(a) in the case of tax that was not paid or remitted when it was due, and any penalty imposed in respect of the failure to pay or remit the tax when it was due, from the day the tax was due; and

(b) in the case of a fee or charge, or any other penalty imposed under this or any other tax Act, from the day it was imposed or, if it was not due immediately, from the day it was due.

Interest on deficient instalments

38(3)       In calculating the interest payable in relation to instalments payable by a corporation under clause 17(4.2)(a) of The Corporation Capital Tax Act or by an operator under section 14 of The Mining Tax Act, the interest must be calculated on the whole, or part, as the case may be, of any required instalment that is not paid by the due date. For that purpose,

(a) the amount of a required instalment under The Corporation Capital Tax Act for a fiscal year is the lesser of

(i) 25% of the corporation's actual tax payable for the fiscal year, and

(ii) 25% of the total tax payable by the corporation for the corporation's immediately preceding fiscal year; and

(b) the amount of a required instalment under The Mining Tax Act for a fiscal year is the lesser of

(i) the tax payable for the fiscal year divided by the lesser of 10 and the number of complete months in the fiscal year, and

(ii) the tax payable for the operator's immediately preceding fiscal year divided by the lesser of 10 and the number of complete months in that preceding fiscal year.

No interest on refund of instalments

38(4)       No interest is payable on a refund of an amount paid or payable as an instalment of tax under a tax Act.

Penalty for late payment

39(1)       A taxpayer who does not pay or remit tax on or before the day it is due is liable to pay a penalty equal to 10% of the tax that was not paid or remitted when it was due.

Director may impose additional penalty

39(2)       If the director is satisfied that

(a) a taxpayer has refused to pay or remit tax when it was due; or

(b) tax was not paid or remitted when it was due because of the taxpayer's neglect or carelessness;

the director may, by assessment under section 46, impose a penalty not greater than 50% of the tax that was not paid or remitted when it was due.  This penalty is in addition to any other fine or penalty that may be imposed under this Act.

Director may waive interest or penalty or allow commission

40(1)       If the director is satisfied that exceptional circumstances prevented a taxpayer from paying or remitting tax when it was due, the director may

(a) waive all or any part of

(i) the interest accruing on that tax, or

(ii) the 10% penalty imposed under subsection 39(1); and

(b) allow the payment of all or any part of the commission to which a vendor under The Retail Sales Tax Act has ceased to be entitled because of a late remittance of tax under that Act.

Report of waiver

40(2)       Within 60 days after giving the waiver or allowing the commission to be paid, the director must provide the minister with a written report setting out

(a) the name of the person to whom the waiver was granted or the commission was allowed to be paid;

(b) the reasons for the director's decision;

(c) the amount waived or paid; and

(d) the type of tax to which the waiver or payment relates.

Sale or assignment of account receivable

41          When a collector or a deputy collector sells or assigns, otherwise than as security for an obligation of the collector or deputy collector, an account receivable arising from a transaction in respect of which the collector or deputy collector was required to collect and remit tax,

(a) the collector or deputy collector is deemed to have collected the tax remaining unpaid in respect of the transaction; and

(b) any amount collected by the purchaser or assignee on that account receivable is deemed not to be an amount collected as or on account of tax.

Tax debt not dependent on assessment

42(1)       A person's liability for a tax debt exists and may be enforced against the person, whether or not it has been assessed under this Act.

Liabilities arising only by assessment

42(2)       Despite subsection (1), the following liabilities arise only when they are assessed under section 46:

(a) a penalty imposed by the director under subsection 21(4) (failure to produce records) or 39(2) (failure to pay or remit tax);

(b) a person's liability for a tax debt, or that part of a tax debt, that arises from the application of section 51 (general anti-avoidance rule) to a transaction or series of transactions;

(c) a person's liability under any of the following provisions for all or part of the tax debt of another person:

(i) subsection 14(5) (extra-provincial contractor),

(ii) section 43 (corporate director),

(iii) section 44 (non-arm's length transferee),

(iv) section 45 (purchaser on bulk sale),

(v) section 68 or 69 (failure to comply with third party demand),

(vi) section 73 (deemed trust),

(vii) subsection 2.3(9) of The Retail Sales Tax Act (interjurisdictional fleet vehicle).

Exception — liability not acknowledged by debtor

42(3)       Despite subsection (1), a tax debt may not be enforced against a person until it has been assessed against the person under section 46, unless the person has acknowledged his or her liability for the tax debt or for the tax that resulted in the tax debt.  For this purpose, a person acknowledges his or her liability for tax or a tax debt when the person, or the person's agent or legal representative,

(a) reports the tax liability;

(b) promises, in writing, to pay the tax or the tax debt;

(c) acknowledges the tax liability or tax debt in writing, whether or not a promise to pay can be inferred from the acknowledgment and whether or not it contains a refusal to pay; or

(d) pays or purports to pay an amount on account of the tax or the tax debt, even if it is by way of a negotiable instrument that is dishonoured.

Corporate directors liable for corporation's tax debt

43(1)       If a corporation fails to pay or remit when it is due

(a) any tax that it is required to collect and remit; or

(b) any tax payable by it under The Retail Sales Tax Act, if the tax was first assessed after May 10, 2000;

the persons who are directors of the corporation at that time are liable to pay the corporation's tax debt in respect of that failure.  Subject to subsections (2) to (4), the tax debt may be enforced against any or all of those persons.

Prudent director not liable

43(2)       A person is not liable under subsection (1) if he or she exercised the degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances to prevent the corporation's failure to pay or remit tax.

Limitation period for assessment

43(3)       A person is not liable under subsection (1) unless an assessment is made under section 46 against the person while he or she is still a director of the corporation or within two years after he or she last ceased to be a director of the corporation.

Limitations

43(4)       A person is not liable under subsection (1) unless one of the following has occurred:

(a) the corporation, having been required to provide a bond under section 12, has failed to provide it or, having provided one, has failed to maintain it;

(b) the corporation has failed to remit tax or make reports as required by an order made under section 15;

(c) a tax debt warrant issued in respect of the tax debt has been executed by a sheriff, and the tax debt has not been fully paid;

(d) the corporation has been dissolved or has started liquidation or dissolution proceedings in any jurisdiction, and still has a tax debt after the director makes a claim for the payment of it;

(e) a receiver, trustee or other like person has taken control or possession of the corporation's property and the corporation's tax debt remains unpaid after the director makes a claim for the payment of it;

(f) the corporation has made an assignment, or a receiving order has been made against it, under the Bankruptcy and Insolvency Act (Canada), and the corporation's tax debt remains unpaid after the director makes a claim for the payment of it;

(g) a compromise or arrangement has been proposed under the Companies' Creditors Arrangement Act (Canada) or a proposal has been made under the Bankruptcy and Insolvency Act (Canada) in respect of the corporation;

(h) the corporation has failed to comply with an agreement for the payment of the tax debt;

(i) the corporation has been found guilty of an offence under subsection 76(2) (evasion) or (3) (refusal or neglect to pay or remit tax) that occurred while the person was a director of the corporation;

(j) the person has been found guilty of an offence under subsection 76(2) or under subsection 82(2) (director liable for offence by corporation) in relation to an offence by the corporation under subsection 76(2) or (3).

Director may allocate payments

43(5)       For the purposes of this section, the director may apply

(a) a payment by the corporation to any tax debt of the corporation; and

(b) a payment by a director or former director of the corporation in respect of a tax debt of the corporation to that tax debt or to any part of it.

Rights of corporate director on payment of corporation's tax debt

43(6)       A director or former director of a corporation who pays an amount on account of the corporation's tax debt, or makes a contribution to another director or former director of the corporation who paid such an amount, is entitled to recover the amount or contribution in one or more of the following ways:

(a) in a court of competent jurisdiction as a debt owing to the person by the corporation;

(b) by withholding that amount from any amount owing by the person to the corporation;

(c) by way of a contribution from the other directors or former directors of the corporation who are liable for the tax debt or would be liable for it if it were assessed against them under section 46.

Corporation remains liable

43(7)       Except to the extent that a corporation's tax debt is reduced by a payment by a director or former director of the corporation in respect of that debt, nothing in this section affects the corporation's liability for the tax debt.

Liability of transferee after non-arm's length transfer

44(1)       If a tax debtor has, after March 8, 2005, transferred money or other property directly or indirectly, by means of a trust or by any other means, to or for the benefit of a person (referred to in this section as the "transferee")

(a) with whom the tax debtor, at the time of the transfer, is not dealing at arm's length; or

(b) who is under the age of 18 years;

the transferee is liable, upon assessment under section 46, for the transferor's tax debt to the extent provided for in subsection (2).

Limit of transferee's liability

44(2)       The limit of the transferee's liability under subsection (1) is the total of

(a) the lesser of

(i) the transferor's tax debt at the time of the transfer, and

(ii) the amount, if any, by which the fair market value of the transferred property — including any transferred money — at the time of the transfer exceeds the fair market value at that time of the consideration given by the transferee for the transfer; and

(b) interest payable on that amount, calculated at the same rate that applies to the transferor's tax debt, from the date of the transfer to the date of payment.

Meaning of "arm's length"

44(3)       For the purpose of this section,

(a) persons are deemed not to be dealing at arm's length with each other when they are deemed for the purposes of the Income Tax Act (Canada) not to be dealing at arm's length with each other; and

(b) despite clause (a), a person and his or her spouse or common-law partner, as defined in the Income Tax Act (Canada), are deemed to be dealing with each other at arm's length while they are living separate and apart by reason of a breakdown in their relationship, if they have been living separate and apart for that reason for a continuous period of at least 90 days.

Effect of payments

44(4)       A payment by the transferee in respect of the transferor's tax debt reduces the transferor's and the transferee's liability for the transferor's tax debt.  A payment by the transferor reduces the transferee's liability only to the extent that it reduces the transferor's tax debt below the amount for which the transferee is liable.

Transferor remains liable

44(5)       Except to the extent that the transferor's tax debt is reduced by a payment by the transferee, nothing in this section affects the transferor's liability for the tax debt.

Definitions

45(1)       The following definitions apply in this section.

"buyer" means a person who acquires property from a seller on a sale in bulk. (« acheteur »)

"sale in bulk" means a sale, barter or exchange by a person (referred to as the "seller") of

(a) inventory outside the ordinary course of business of the seller; or

(b) tangible personal property used by the seller to carry on business, if it is sold, bartered or exchanged in connection with the seller ceasing to carry on the business or part of the business in which the property was used. (« vente en bloc »)

"tax debt" means a tax debt in relation to tax imposed by The Retail Sales Tax Act. (« dette fiscale »)

Seller to obtain tax certificate before sale in bulk

45(2)       Before disposing of property through a sale in bulk, the seller must apply to the director for a certificate verifying that

(a) the seller has no tax debt; or

(b) arrangements satisfactory to the director for the payment of the seller's tax debt have been made.

Application fee

45(3)       When applying for the certificate, the seller must pay an application fee of $50.00.

Director to issue certificate

45(4)       The director must issue the certificate, in duplicate, upon

(a) being satisfied that the seller has no tax debt; or

(b) being satisfied with the arrangements made for the payment of the seller's tax debt.

Seller to provide certificate to buyer

45(5)       The seller must provide one of the duplicate certificates to the buyer.

Liability of buyer

45(6)       The buyer is liable, upon assessment under section 46, for the seller's tax debt as at the date of sale unless the buyer obtains the duplicate certificate from the seller.  The debt may be enforced against the buyer, the seller or both.

Buyer's right of recovery

45(7)       If the buyer pays an amount in respect of the seller's tax debt, the buyer

(a) is entitled to recover the amount from the seller; and

(b) may withhold that amount from money owing to the seller, or recover it in a court of competent jurisdiction as debt owing by the seller to the buyer.

ASSESSMENT OF TAX DEBT

Assessment or reassessment of tax debt

46(1)       The director may at any time make an assessment or reassessment of a person's tax debt or any part of a person's tax debt, which may consist of one or more of the following:

(a) the tax that a taxpayer is liable to pay or remit under a tax Act;

(b) interest;

(c) the 10% penalty imposed by subsection 39(1) (failure to pay or remit tax);

(d) any additional penalty imposed by the director under subsection 39(2) (failure to pay or remit tax by reason of neglect or carelessness);

(e) a penalty imposed by the director under subsection 21(4) in respect of a failure to produce documents as ordered;

(f) any fee or charge that has been or may be imposed under this Act or the regulations in respect of

(i) a dishonoured cheque or other negotiable instrument,

(ii) expenses incurred to collect a tax debt,

(iii) expenses incurred to inspect, audit or examine books and records at a place outside Manitoba;

(g) the tax debt or portion of the tax debt of a taxpayer for which another person is liable under one of the provisions referred to in clause 42(2)(c).

Clarification

46(2)       For greater certainty, the penalty referred to in clause (1)(c) and a fee or charge referred to in clause (1)(f) may be imposed and added to a taxpayer's tax debt without being assessed under this section.

Determination of taxable amount

46(3)       In making an assessment or reassessment in respect of a purchase of tangible personal property or a taxable service under The Retail Sales Tax Act or a taxable product under Part I.1 of this Act, the director may estimate the amount on which tax is payable if no purchase price or rental was paid or if, in the opinion of the director,

(a) the amount taken as the basis for calculating the tax was

(i) less than the fair market value of the property, service or product, or of the consideration given for it, or

(ii) in the case of tangible personal property or a taxable service, less than the fair value determined in accordance with The Retail Sales Tax Act or the regulations under that Act; or

(b) the actual purchase price or rental cannot be determined.

Estimate of tax payable

46(4)       In making an assessment or reassessment of a tax debt in respect of a matter or a period, if

(a) the taxpayer has failed to file an information return or to provide information on the basis of which the tax can be calculated; or

(b) in the opinion of the director, the return or information provided by the taxpayer is not substantiated by his or her records;

the director may estimate the amount of tax to be paid or remitted for that matter or period.

Tax deemed to have been collected

46(5)       Subject to an appeal under Division 4, an amount included in an assessment or reassessment as an estimate under subsection (4) of tax collected and not remitted in respect of taxable transactions is deemed for the purposes of this Part to have been collected and not remitted, except to the extent that the tax debtor satisfies the director that

(a) the tax was remitted;

(b) the transactions did not occur or were not taxable; or

(c) the amount received by the tax debtor in respect of a taxable transaction is less than the tax required to be collected in respect of the transaction.

Limits on assessment or reassessment

47(1)       Subject to subsection (2), nothing prevents the director from

(a) making an assessment in respect of a period that includes another period in respect of which an assessment or reassessment was previously made; or

(b) making a reassessment in respect of a period or matter in respect of which an assessment or reassessment was previously made.

Limit on reassessment after appeal

47(2)       After a taxpayer has served a notice of appeal of an assessment or reassessment on the Tax Appeals Commission, the director may only make a reassessment in respect of any matter or period covered by the assessment or reassessment under appeal if it is made on the basis of information that was not

(a) in any information return filed by the taxpayer; or

(b) otherwise provided by the taxpayer to the director;

before the date of the assessment or reassessment under appeal.

Notice of assessment or reassessment

48(1)       Upon making an assessment or reassessment under section 46, the director must issue a notice of assessment or reassessment that states

(a) the name and address of the taxpayer in respect of whom the assessment or reassessment is made;

(b) a reference number and the date of the assessment or reassessment;

(c) the particulars of the tax debt, including

(i) the period or matter in respect of which the assessment or reassessment is made, and

(ii) the tax, interest and penalties comprising the tax debt;

(d) that the tax debt is payable within 30 days after the notice of assessment or reassessment is served on the taxpayer; and

(e) information about the taxpayer's right to appeal the assessment or reassessment under Division 4 (Appeals).

Notice to taxpayer

48(2)       The director must cause the notice of assessment or reassessment to be served on the affected taxpayer or

(a) if the taxpayer is deceased or mentally incompetent, on his or her executor, committee or other legal representative;

(b) if the taxpayer is bankrupt, on the trustee in bankruptcy;

(c) if the taxpayer is a corporation that has been amalgamated with another corporation, on the amalgamated corporation; or

(d) if the taxpayer is a corporation that has been dissolved, on a person who was an officer or director of the corporation immediately before it was dissolved.

Assessment deemed correct

49          An assessment or reassessment is deemed to be correct unless

(a) it is rescinded or revised on appeal under Division 4; or

(b) it is replaced by a reassessment.

Time for payment

50          Within 30 days after a notice of assessment or reassessment is served on a taxpayer, the taxpayer must

(a) pay or remit the tax debt to the minister; or

(b) if the assessment or reassessment was based on an estimate,

(i) pay or remit the tax debt to the minister, or

(ii) pay or remit to the minister any other amount that the director, based on additional information provided by the taxpayer, accepts as being the amount of the tax debt.

ANTI-AVOIDANCE

Definitions

51(1)       The following definitions apply in this section.

"avoidance transaction" means a transaction

(a) that, but for this section, would result, directly or indirectly, in a tax benefit; or

(b) that is part of a series of transactions that, but for this section, would result, directly or indirectly, in a tax benefit,

but does not include a transaction that may reasonably be considered

(c) to have been undertaken or arranged primarily for bona fide purposes other than to obtain the tax benefit; or

(d) not to result directly or indirectly in a misuse of the provisions of any tax Act or an abuse having regard to the provisions of a tax Act read as a whole. (« opération d'évitement »)

"tax benefit" means a reduction, avoidance or deferral of tax or other amount payable under a tax Act or an increase in a refund of tax or other amount under a tax Act. (« avantage fiscal »)

"transaction" includes an arrangement or event. (« opération »)

General anti-avoidance rule

51(2)       The director may, by assessment or reassessment under section 46, determine or redetermine the tax consequences of an avoidance transaction, or of a series of transactions that includes an avoidance transaction, as is reasonable in the circumstances in order to deny a tax benefit that, but for this section, would result, directly or indirectly, from that transaction or from a series of transactions that includes that transaction.

Request for adjustments

51(3)       Within 180 days after an assessment or reassessment in respect of a transaction or series of transactions is served on a person, any other person involved in the same transaction or series may, by written notice to the director, request the director to adjust, under subsection (2), tax consequences to the person of that transaction or series.

Director's response

51(4)       On receipt of the request, the director must consider the request and determine the tax consequences under subsection (2) to the person who made the request.

Determining tax consequences

51(5)       Without limiting the generality of subsection (2), in determining or redetermining the tax consequences to a person of a transaction or series of transactions under that subsection, the director may do one or more of the following:

(a) determine or redetermine the value or fair value of any thing;

(b) allow or disallow the deduction of an amount in computing a taxable amount, an exempt amount or the tax payable or refundable;

(c) recharacterize the nature of a payment, amount or transaction;

(d) ignore the tax effects that would otherwise result under a tax Act.

Application

51(6)       This section applies with respect to

(a) a tax benefit under The Retail Sales Tax Act or The Corporation Capital Tax Act that was obtained or sought to be obtained after March 10, 1992;

(b) a tax benefit under The Health and Post Secondary Education Tax Levy Act that was obtained or sought to be obtained after 1991; and

(c) a tax benefit that is obtained or sought to be obtained under any other tax Act after March 8, 2005.

Advance ruling

52(1)       The director may, upon written application, make an advance ruling regarding the application of section 51 in respect of a proposed transaction or series of transactions.

Fees re advance ruling

52(2)       A person who applies for an advance ruling regarding the application of section 51 must pay the following fees:

(a) at the time of applying for the ruling, a minimum non-refundable fee of $300.;

(b) upon receiving the ruling or withdrawing the application for it, an additional fee of $60. per hour for time in excess of five hours spent in considering the application and, where applicable, preparing the ruling.

REFUND OF OVERPAYMENT

Refund of overpayment by taxpayer

53(1)       A person is entitled to a refund, without interest, of an amount paid by the person as tax if

(a) the amount was not payable as tax and is not otherwise refundable under a tax Act; and

(b) the person applies to the director for the refund within two years after the day the amount was paid.

Refund of overpayment by collector

53(2)       A collector or deputy collector is entitled to a refund, without interest, of an amount remitted to the minister as tax if

(a) the amount was not required to be remitted by or under a tax Act and is not otherwise refundable under a tax Act; and

(b) the collector or deputy collector applies to the director for the refund within two years after the day the amount was remitted.

Limitation

53(3)       Subsections (1) and (2) do not apply to amounts paid or remitted as tax under The Retail Sales Tax Act.

No other right of recovery

53(4)       No person has a right of action or other remedy against the government for the recovery of an amount paid or remitted as tax, unless the person is entitled under a tax Act to a refund of the amount.

Amounts under $10. not refundable

53(5)       Despite subsections (1) and (2) and any other provision of a tax Act, no person is entitled to a refund of an amount that is less than $10.

DIVISION 4 APPEALS

Appeals do not affect tax debt obligations

54          Neither the making of an appeal under this Division nor any delay in the conduct of an appeal in any way affects or limits

(a) the liability of a person to pay tax or to collect and remit tax;

(b) the date by which tax becomes payable or is required to be paid or remitted;

(c) the accrual of interest on a tax debt;

(d) the imposition of a penalty; or

(e) any action or right to take any action to collect a tax debt under Division 5 (Tax Debt Recovery).

Appeal to Tax Appeals Commission

55          A taxpayer may appeal an assessment or reassessment made under section 46 to the Tax Appeals Commission. The right of appeal is limited to the amounts assessed or reassessed under clauses 46(1)(a), (d), (e) and (g).

How to appeal

56(1)       An appeal to the Tax Appeals Commission must

(a) be in writing and signed by the taxpayer;

(b) state the name of the taxpayer and the reference number of the assessment or reassessment being appealed;

(c) state which amounts are in dispute and, in each case, how much of the amount is in dispute;

(d) state the reasons for the appeal and provide documentary evidence substantiating the taxpayer's position; and

(e) be served on the Tax Appeals Commission and the director within 90 days after the notice of assessment or reassessment was served on the appellant.

Acting on behalf of taxpayer

56(2)       If authorized to do so by the taxpayer in writing, another person may act on behalf of the taxpayer in the appeal.

Powers of Tax Appeals Commission

57(1)       Upon receipt of an appeal, the Tax Appeals Commission must determine whether it meets the requirements of sections 55 and 56.  If it does not, the commission must reject the appeal.  If it does, the commission may

(a) exercise any of its powers of investigation and inquiry under The Tax Appeals Commission Act; and

(b) affirm, rescind or vary the assessment or reassessment being appealed.

The commission must cause a copy of its decision to be served on the director and on the taxpayer or a person acting on the taxpayer's behalf.

Power to vary

57(2)       In varying an assessment or reassessment, the Tax Appeals Commission may increase or decrease the amount assessed or reassessed.  But a penalty assessed under clause 46(1)(d) or (e) cannot be increased beyond the maximum penalty that the director is allowed to impose.

Technical irregularity

57(3)       An assessment or reassessment must not be varied or rescinded by reason only of an irregularity, informality, omission or technical error by the director in the exercise of his or her duties under a tax Act.

Appeal to Court of Queen's Bench

58          The following matters may be appealed to the Court of Queen's Bench:

(a) a decision or order of the director under section 10 to deny, suspend or cancel a tax authorization;

(b) a decision of the Tax Appeals Commission under section 57.

How to appeal

59(1)       An appeal to the court must be made by filing an application with the court for an order under this section within 90 days after the decision or order being appealed is served on the appellant.

Appeal of director's decision or order

59(2)       The parties to an appeal of a decision or order of the director are the appellant and the director.

Appeal of commission's decision

59(3)       The parties to an appeal of a decision of the Tax Appeals Commission are the taxpayer and the director, either of whom may be the appellant.

Appellant to serve application on other party

59(4)       As soon as practicable after filing the application with the court, the appellant must serve a copy of the application on the other party to the appeal.

Court decision

59(5)       The court may

(a) affirm, rescind or vary the order or decision being appealed; and

(b) make any order as to costs that the court considers appropriate.

Refund after appeal

60          If an assessment or reassessment is rescinded or the amount of it is reduced on appeal, the minister must refund or pay to the taxpayer

(a) any excess amount paid or remitted to the minister by the taxpayer; and

(b) interest on that excess amount, from the day it was paid or remitted to the minister, calculated at the same rate and in the same manner as interest payable on a tax debt.

DIVISION 5

TAX DEBT RECOVERY

ENFORCEMENT ACTIONS

Exercise of powers to collect tax debts

61          The following actions to recover a tax debt may be taken separately, concurrently or cumulatively:

(a) commencing a civil action under section 62 for recovery of the debt;

(b) issuing a tax debt certificate under section 63 and filing it in the Court of Queen's Bench;

(c) registering a lien under section 65 in a land titles office or under section 66 in the Personal Property Registry and taking steps to enforce the lien;

(d) issuing a tax debt warrant under section 67 and having it executed;

(e) issuing a demand for payment under section 68 or 69;

(f) issuing a notice of assessment under clause 46(1)(g) to a person, other than the tax debtor, who is liable under this Act for the tax debt or any part of it, and doing anything referred to in this section to recover the amount assessed against that person.

Tax debt recoverable by civil action

62          A tax debt is recoverable by a civil action for debt in a court of competent jurisdiction.

Tax debt certificate

63          The director may

(a) issue a tax debt certificate showing

(i) the amount of the tax debt and the name of the tax debtor liable for it,

(ii) the name of the tax Act under which the tax debt arose, and

(iii) the director's address for service of documents; and

(b) file the certificate in the Court of Queen's Bench.

Once filed, the certificate becomes a judgment of the court and may be enforced as a judgment.

Lien for tax debt

64(1)       The government has, in addition to every other remedy it has for the recovery of a tax debt, a lien on every estate or interest in real property and personal property of the tax debtor, including property acquired by the debtor after the debt arose.

Extent of security

64(2)       The lien secures the payment of

(a) the amount of the tax debt at the time that the lien takes effect;

(b) all additional amounts that become due under a tax Act by the tax debtor to the government after the lien takes effect and before it is discharged, including

(i) any tax, interest or penalties that become due or payable after the lien takes effect, and

(ii) any unpaid fees, expenses or other charges imposed by the director under this Part after the lien takes effect;

(c) disbursements for the registration and discharge of the lien; and

(d) costs reasonably incurred by the government in retaking, holding, repairing, processing, preparing for disposition or disposing of property in respect of which the lien is registered.

When lien takes effect

64(3)       The lien takes effect

(a) in relation to the tax debtor's interest in real property, when a certificate in respect of the lien is registered under section 65; and

(b) in relation to the tax debtor's personal property, when a financing statement in respect of the lien is registered under section 66.

Effect of failure to proceed

64(4)       The lien and its priority are not lost or impaired by taking or failing to take proceedings to recover the tax debt, or by the tender or acceptance of any payment on account of the tax debt.

Registration against real property

65(1)       The director may cause a lien under section 64 to be registered in a land titles office against specific lands of the tax debtor by filing a certificate, signed by the director, stating

(a) the address for service of the director;

(b) the full name of the tax debtor and the amount of the tax debt giving rise to the lien;

(c) the legal description of the land to be charged; and

(d) any other matter prescribed by regulation.

Registration on production

65(2)        The certificate is registerable upon being presented for registration.  It does not require an affidavit of execution.

Enforcement of lien on real property

65(3)       Upon registration of the certificate in the land titles office, the lien becomes enforceable as a certificate of judgment under The Judgments Act.

Director may postpone, amend or discharge lien

65(4)       The director may, by filing the appropriate document in the land titles office in which the lien was registered,

(a) postpone the government's interest under the lien;

(b) amend the certificate to correct an error, but not to increase the amount secured by the lien or to extend the lien to other land; or

(c) discharge the lien.

Registration in Personal Property Registry

66(1)       The director may register a lien under section 64 against personal property of the tax debtor by filing in the Personal Property Registry a financing statement that states

(a) the address for service of the director;

(b) the name and address of the tax debtor;

(c) the name of the tax Act under which the tax debt arose; and

(d) any other matter prescribed by regulation.

Effect of registration

66(2)       Upon registration of the lien in the Personal Property Registry,

(a) the government is deemed to be a secured party under The Personal Property Security Act and the tax debtor is deemed to be a debtor under that Act;

(b) the tax debtor is deemed to have signed a security agreement stating that a security interest is taken in all the debtor's present and after-acquired personal property, and the lien is deemed to be a perfected security interest in that property;

(c) the lien is enforceable under The Personal Property Security Act as if it were a lien under the agreement referred to in clause (b) and the tax debtor were in default under that agreement; and

(d) The Personal Property Security Act and the regulations under that Act apply, with necessary modifications, to the lien except as otherwise provided by this section.

Priority of lien for tax collected but not remitted

66(3)       To the extent that the lien secures the payment of tax that a collector or deputy collector has collected but failed to remit, the lien

(a) is not limited to the collector's estate or interest in the personal property; and

(b) despite any other enactment but subject to subsection (4), is payable in priority to any other security interest in that property, including a security interest that arose or was perfected before the lien came into effect or before this section came into force.

Exceptions to priority

66(4)       A lien in respect of tax collected and not remitted does not have priority over the following:

(a) a purchase money security interest in collateral, as defined in The Personal Property Security Act, that was perfected when the debtor obtained possession of the collateral or within 15 days after the debtor obtained possession of it;

(b) a garage keeper's lien under The Garage Keepers Act and a lien that, under any other Act, may be enforced as a lien under The Garage Keepers Act;

(c) a security interest that was perfected by registration in the Personal Property Registry before March 8, 2005.

Director may postpone, amend, renew or discharge lien

66(5)       The director may, by filing the appropriate document in the Personal Property Registry,

(a) postpone the government's interest under a financing statement; or

(b) amend, renew or discharge a financing statement.

Tax debt warrant

67(1)       The director may issue a tax debt warrant to a sheriff showing

(a) the name and address of the tax debtor;

(b) the amount of the tax debtor's tax debt;

(c) the name of the tax Act under which the tax debt arose; and

(d) the director's address for service of documents.

Effect of warrant

67(2)       The tax debt warrant

(a) has the same force and effect;

(b) creates the same rights, duties and obligations;

(c) is subject to the same exemptions; and

(d) must be acted upon by the sheriff in the same way and with the same procedures, in all respects;

as if it were a writ of seizure and sale issued by the Court of Queen's Bench in favour of the government against the tax debtor.

Authority of sheriff re cash and credit card receipts

67(3)       In executing a tax debt warrant, the sheriff, in addition to the sheriff's other powers, has the power to seize cash, credit card receipts and similar instruments.

Director may demand payment from third party

68(1)       The director may serve a demand for payment on a person (referred to in this section as the "third party") if the director knows or suspects that the person

(a) is indebted or liable to make a payment at any time to a tax debtor; or

(b) is liable to make a payment at any time to a secured creditor of a tax debtor where

(i) that payment, but for the secured creditor's security interest, would be payable to the tax debtor, and

(ii) the tax debt is in respect of tax that was collected and not remitted.

Joint account

68(2)       For the purpose of clause (1)(a), a financial institution is liable to make a payment to a tax debtor in respect of a joint account if the institution must honour

(a) a request by the debtor alone to withdraw or transfer money from the account; or

(b) a cheque drawn on the account by the debtor alone.

Application of demand to periodic payments

68(3)       If the demand is for money otherwise payable periodically, including payments as interest, rent, remuneration, a dividend, or an annuity, the demand

(a) applies to all payments to be made by the person to the tax debtor or a secured creditor of the tax debtor until the tax debtor's tax debt is paid in full; and

(b) requires the person to pay to the minister, out of each periodic payment, the amount specified in the demand.

Amount payable by third party

68(4)       Subject to subsection (3), the third party must pay to the minister on account of the tax debtor's tax debt, an amount equal to the lesser of

(a) the amount of the tax debt as specified in the demand; and

(b) the amount otherwise payable by the third party to the tax debtor or the secured creditor, as the case may be.

When payment is due

68(5)       The amount payable under subsection (4) to the minister is payable

(a) immediately, if the money is payable by the third party to the tax debtor or secured creditor immediately or on demand; or

(b) as and when the money is payable by the third party to the tax debtor or secured creditor.

Priority of demand — tax collected and not remitted

68(6)       Despite any other law, if the tax debt for which the demand was issued is in respect of tax that was collected and not remitted, the money payable under the demand

(a) becomes property of the government upon receipt of the demand; and

(b) is payable in priority to

(i) any security interest in the amount owing by the third party to the tax debtor, whether the security interest arose before or after the demand was made or before or after this section came into force, and

(ii) any garnishment order to which The Garnishment Act applies.

Priority of demand — other tax debt

68(7)       If the tax debt in relation to which the demand was issued is not in respect of tax that was collected and not remitted, the demand

(a) has the same effect and priority as a garnishment order to which The Garnishment Act applies, other than an order that is given priority under section 13.5 or 14.5 of that Act (garnishment for maintenance orders, fines, etc.) over other garnishment orders; and

(b) is subject to the exemptions set out in section 5 of The Garnishment Act.

Personal liability under a third party demand

68(8)       If the third party does not comply with the demand, the third party is personally liable to pay to the minister on account of the tax debtor's tax debt, upon assessment under section 46, the amount to be paid under subsection (4).

Director may demand payment from institutional lender

69(1)       The director may serve a demand for payment on a financial institution if the director knows or suspects that, within 90 days after serving the demand, the institution will

(a) lend or advance money to;

(b) make a payment on behalf of; or

(c) make a payment in respect of a negotiable instrument issued by;

a tax debtor who is indebted to the institution and has granted security for that indebtedness.

Director may demand payment from other lender

69(2)       The director may serve a demand for payment on a person, other than a financial institution, if the director knows or suspects that, within 90 days after serving the demand, the person will lend or advance money to, or make a payment on behalf of,

(a) a tax debtor who is, was, or will be within the 90-day period, employed by the person or providing property or services to the person; or

(b) a tax debtor, other than an individual, who is not dealing at arm's length with the person.

Expiry of demand

69(3)       A demand under this section ceases to apply 90 days after it is served on the financial institution or other person.

Liability of lender

69(4)       The institution or other person on whom a demand is served under this section is liable to pay to the minister on account of the tax debtor's tax debt, upon assessment under section 46, an amount equal to the lesser of

(a) the amount of the tax debt as specified in the demand; and

(b) the total of the money lent, advanced or paid to or on behalf of the tax debtor after the demand is received by the institution or person.

Content of demand for payment

70          A demand for payment under section 68 or 69 must state

(a) the name of the person to whom it is addressed;

(b) the name of the tax debtor concerned and that the demand is made because of the tax debtor's tax debt;

(c) the amount of the tax debt;

(d) the name of the tax Act under which the tax debt arose; and

(e) that the amount is payable to the minister and when it is to be paid.

Payment discharges liability

71(1)       A payment to the minister pursuant to a demand made under section 68 or 69 discharges, to the extent of the payment,

(a) the tax debt in relation to which the payment was demanded; and

(b) the payer's liability to pay the money to the tax debtor or secured party to whom it was otherwise payable.

Deemed loan or payment

71(2)       An amount paid to the minister pursuant to a demand made under section 69 is deemed to have been lent or advanced to, or paid to or on behalf of, the tax debtor, as it would have been if it had not been paid to the minister.

Right of recovery

72          A person who pays an amount pursuant to an assessment made under section 46 in respect of a demand made under section 68 or 69 is entitled to recover the amount from the tax debtor in relation to whom the demand was made, and may

(a) withhold that amount from any money owing by the person to the tax debtor; or

(b) recover it in a court of competent jurisdiction as a debt owing by the tax debtor to the person.

DEEMED TRUST FOR TAXES NOT REMITTED

"Collector" includes deputy collector

73(1)       In this section, "collector" includes a deputy collector.

Property of collector deemed to be held in trust

73(2)       Money and other property of a collector, and property held by a secured creditor that, but for a security interest would be property of the collector, equal in value to the tax collected under a tax Act is deemed, from the time the tax is collected until it is remitted,

(a) to be held in trust for, and beneficially owned by, the government;

(b) to be held separate and apart from other property of the collector and other property that, but for a security interest, would be property of the collector; and

(c) to form no part of the estate or property of the collector.

These rules apply to property even if it is subject to a security interest and even if the security interest arose before this subsection came into force or before the tax was collected.

Priority of taxes collected and held in trust

73(3)       Money held in trust under subsection (2), and the proceeds of any other property held in trust under that subsection, must be paid to the minister in priority to all security interests, including one that arose before this subsection came into force or before the money or other property became subject to the trust.

Receiver, trustee or like person to obtain certificate before distribution

73(4)       A person who, as a receiver, trustee or other like person, wishes to pay or distribute any money or other property of the collector to any person must, before paying or distributing it, obtain from the director a certificate confirming that

(a) the collector has no tax debt to which this section applies; or

(b) security acceptable to the director for the payment of the collector's tax debt has been given.

Liability for distribution without certificate

73(5)       A person who pays or distributes money or other property contrary to subsection (4) is personally liable, upon assessment under section 46, to pay to the minister on account of the collector's tax debt an amount equal to the lesser

(a) the collector's tax debt at the time of the distribution; and

(b) the amount of money or value of property distributed;

plus interest on that amount from the date of the payment or distribution, calculated at the same rate that applies to the collector's tax debt.

Collector remains liable

73(6)       Except to the extent that a collector's tax debt is reduced by a payment under this section, nothing in this section affects the collector's liability for the tax debt.

Right of recovery

73(7)       A person who pays an amount pursuant to an assessment made under section 46 in respect of a liability under this section is entitled to recover the amount from the collector on whose account the amount was paid, and may

(a) withhold that amount from any money owing by the person to the collector; or

(b) recover it in a court of competent jurisdiction as a debt owing by the tax debtor to the person.

RELIEF FROM ENFORCEMENT

Application for court protection from enforcement

74(1)       If the director takes any enforcement action referred to in section 61 to collect a tax debt

(a) while the assessment or reassessment of the tax debt is under appeal; or

(b) before the expiry of the period within which the assessment or reassessment may be appealed;

the tax debtor may apply to the Court of Queen's Bench for an order terminating or limiting the enforcement action.

Time to make application

74(2)       The tax debtor may make the application only

(a) after having served a notice of appeal of the assessment or reassessment on the Tax Appeals Commission; and

(b) within 30 days after becoming aware of an enforcement action referred to in section 61 having been taken by the director.

Court order may terminate or limit enforcement action

74(3)       The court may

(a) deny the application; or

(b) subject to subsection (4), make any order the court considers appropriate, including an order terminating, prohibiting or limiting any enforcement action that the director has taken or may otherwise take.

Limitations

74(4)       An order under clause (3)(b) must not

(a) prevent the director from taking any enforcement action to collect an amount that is not in dispute; or

(b) prevent the registration or renewal of a lien against property of the tax debtor, or require such a lien to be discharged.

Court may require tax debtor to provide security

74(5)       When making an order under clause (3)(b), the court may require the tax debtor to provide security for the payment of his or her tax debt on any terms the court considers appropriate.

DIVISION 6

OFFENCES AND PENALTIES

Offences — records and reporting

75(1)       A person is guilty of an offence who

(a) fails to make or keep records as required by or under a tax Act;

(b) destroys records contrary to section 18;

(c) fails to provide information, or to make or file a report or information return, as and when required by or under a tax Act;

(d) makes, or participates in, assents to or acquiesces in the making of, a false or misleading statement or entry in

(i) the records of a taxpayer, or

(ii) an application, report, information return or other document filed or to be filed under a tax Act; or

(e) omits to state a material fact, or participates in, assents to or acquiesces in the omission of a material fact, in

(i) the records of a taxpayer, or

(ii) an application, report, information return or other document filed or to be filed under a tax Act.

Offences — tax authorizations and collection agreements

75(2)       A person is guilty of an offence who

(a) without a valid tax authorization, does anything for which the person is required to have a tax authorization;

(b) fails to comply with a term or condition of a tax authorization;

(c) fails to comply with an agreement between the person and the government respecting a tax authorization or the collection and remittance of tax; or

(d) fails to return a tax authorization to the minister or the director when required by or under a tax Act to do so.

Offences — failure to comply with director's order

75(3)       A person who fails to comply with an order made by the director under any of the following provisions is guilty of an offence:

(a) section 15 (reporting and remittance requirements);

(b) subsection 17(4) (recordkeeping requirements);

(c) subsection 21(1) (requirement to produce records).

Penalty

75(4)       A person who is guilty of an offence under this section is liable, on summary conviction, to the following penalty:

(a) in the case of an individual,

(i) for a first offence, a fine of at least $300. and not more than $5,000., imprisonment for up to three months, or both, and

(ii) for a second or subsequent offence, a fine of at least $500. and not more than $10,000., imprisonment for up to six months, or both;

(b) in the case of a corporation,

(i) for a first offence, a fine of at least $300. and not more than $10,000., and

(ii) for a second or subsequent offence, a fine of at least $1,000. and not more than $20,000.

Additional order to file returns

75(5)       A justice who finds a person guilty of an offence under clause (1)(c) (failure to file report or return) must, in addition to imposing a penalty under subsection (4), order the person

(a) to provide the information that he or she failed to provide; or

(b) to file the reports or information returns that he or she failed to file.

Additional order to comply with director's order

75(6)       A justice who finds a person guilty of an offence under subsection (3) (failure to comply with director's order) must, in addition to imposing a penalty under subsection (4), order the person to comply with the director's order.

Offences — inspections and investigations

76(1)       A person is guilty of an offence who

(a) fails or refuses to produce, provide or make available for inspection, examination, audit or testing by a tax officer any thing required to be produced, provided or made available for that purpose;

(b) interferes with, impedes or obstructs a tax officer in the performance of his or her functions or duties under this Act; or

(c) in relation to an inspection under this Act,

(i) fails or refuses to provide access to premises, property or records to a tax officer as required,

(ii) fails or refuses to provide reasonable assistance, when requested to provide it, to the tax officer performing the inspection,

(iii) provides false or misleading information to a tax officer, or omits to state a material fact so as to mislead a tax officer,

(iv) refuses to answer a question asked by a tax officer,

(v) fails or refuses to provide access to a vehicle, tank or receptacle to allow a tax officer to inspect fuel or take a fuel sample, or

(vi) fails or refuses to stop a vehicle when requested to do so by a tax officer under section 25, 30 or 31.

Offences — evasion

76(2)       A person is guilty of an offence who

(a) wilfully evades or attempts to evade the payment or remittance of tax;

(b) destroys, alters or conceals records, property or information in order to

(i) evade the payment or remittance of tax, or obtain the benefit of a credit or refund to which the person is not entitled,

(ii) avoid detection of a contravention of a tax Act, or

(iii) hinder an investigation of a suspected contravention of a tax Act; or

(c) conspires with any person to commit an offence under clause (a) or (b).

Offence — refusal to pay or remit

76(3)       A person who refuses or wilfully neglects to pay or remit tax when it due is guilty of an offence.

Penalty

76(4)       A person who is guilty of an offence under this section is liable, on summary conviction, to the following penalty:

(a) in the case of an individual,

(i) for a first offence, a fine of at least $500. and not more than $5,000., imprisonment for up to three months, or both, and

(ii) for a second or subsequent offence, a fine of at least $1,000. and not more than $10,000., imprisonment for up to 12 months, or both;

(b) in the case of a corporation,

(i) for a first offence, a fine of at least $500. and not more than $10,000., and

(ii) for a second or subsequent offence, a fine of at least $2,000. and not more than $20,000.

Additional penalty for tax evasion

76(5)       A justice who finds a person guilty of an offence under subsection (2) (evasion) must impose, in addition to any penalty imposed under subsection (4), a fine equal to

(a) for a first offence, the tax sought to be evaded or the refund or credit sought to be obtained; and

(b) for a second offence or subsequent offence, twice the tax sought to be evaded or the refund or credit sought to be obtained.

Onus re payment or remittance of tax

76(6)       In the prosecution of an offence under subsection (3) (failure to pay or remit tax), the onus of proving that the tax was paid or remitted is on the accused.

Additional order to pay or remit tax

76(7)       A justice who finds a person guilty of an offence under subsection (3) (refusal to pay or remit tax) must, in addition to imposing a penalty under subsection (4), order the person to pay or remit the tax, any penalties and interest that the person failed to pay or remit.

Offences — fuel

77(1)       A person is guilty of an offence who

(a) sells fuel exempt from tax under a fuel tax Act knowing it is being purchased for a use for which it cannot be purchased exempt from tax under that Act;

(b) sells fuel at a rate of tax under a fuel tax Act knowing that is being purchased for a use to which a higher rate of tax applies;

(c) uses fuel, or allows it to be used, for a purpose that is not eligible for the exemption or rate of tax under a fuel tax Act that applied to the purchase;

(d) tampers with marked fuel;

(e) colours or marks fuel contrary to the provisions of a fuel tax Act or the regulations under a fuel tax Act;

(f) being a dealer under a fuel tax Act,

(i) places marked fuel, or allows marked fuel to be placed, or

(ii) has marked fuel in a pump or other device for delivering fuel,

directly into the fuel tank or fuel system of a motor vehicle or other machine; or

(g) blends gasoline with denatured alcohol, or with any alcohol or petroleum product that is not subject to tax under The Gasoline Tax Act on resale, and sells the resulting product as gasoline contrary to the provisions of that Act.

Offences — carrier licences

77(2)       A person is guilty of an offence who

(a) contrary to a fuel tax Act, fails, as the operator of a vehicle being operated under a carrier licence,

(i) to carry a copy of the licence in the cab of the vehicle,

(ii) to produce a copy of the licence on the request of a tax officer, or

(iii) to ensure that carrier decals are affixed to the vehicle in accordance with the regulations under the applicable fuel tax Act; or

(b) fails to remove carrier decals as and when required to do so by a fuel tax Act.

Penalty

77(3)       A person who is guilty of an offence under this section is liable, on summary conviction, to the following penalty:

(a) in the case of an offence under clause (1)(c) (wrongful use of fuel) or subsection (2) (carrier licence), the penalty prescribed by subsection 75(4);

(b) in the case of an offence under subsection (1) other than clause (c), the penalty prescribed by subsection 76(4).

"Motor vehicle" defined

78(1)       In this section, "motor vehicle", in relation to an offence under clause 77(1)(c) (wrongful use of fuel), includes any motorized machine or apparatus, whether or not it is a vehicle, used to commit the offence.

Impoundment of vehicle

78(2)       A justice who finds a person guilty of a second or subsequent offence under clause 77(1)(c) may, in addition to imposing a penalty under subsection 77(3), impound the relevant motor vehicle for a period of not more than six months.

Release of vehicle

78(3)       The motor vehicle must not be released until

(a) the fine imposed under subsection 77(3) and the costs incurred to impound and store the vehicle have been paid; and

(b) the period of impoundment has expired.

Sale of vehicle

78(4)       If the fine and costs referred to in clause (3)(a) are not paid within six months after the motor vehicle was impounded, the director may sell the vehicle in accordance with the regulations.  The proceeds of the sale are to be paid or applied as follows:

(a) first, to pay the unpaid fine and costs;

(b) second, to pay the costs of sale.

The balance, if any, is payable to the person who was the owner of the motor vehicle immediately before it was sold, or to a person with a prior claim to the motor vehicle at that time.

Liability for negligence

78(5)       If the motor vehicle is damaged, destroyed or stolen while it is impounded, the owner has no claim or right of action against the government except for any loss arising out of the negligence of the government or of its agents or employees.

Offences — bulk fuel

79(1)       A person is guilty of an offence who, contrary to a fuel tax Act,

(a) imports bulk fuel into Manitoba or acquires bulk fuel otherwise than from a licensed dealer or collector under a fuel tax Act, and does not report it and pay tax as required; or

(b) is in possession of bulk fuel that has been imported into Manitoba or acquired otherwise than from a licensed dealer or collector under a fuel tax Act, and for which the tax has not been paid as required.

Penalty

79(2)       A person who is guilty of an offence under this section is liable, on summary conviction, to the following penalty:

(a) in the case of an individual,

(i) for a first offence, a fine of at least $500. and not more than $25,000., imprisonment for up to three months, or both, and

(ii) for a second or subsequent offence, a fine of at least $1,000. and not more than $50,000., imprisonment for up to 12 months, or both;

(b) in the case of a corporation,

(i) for a first offence, a fine of at least $500. and not more than $50,000., and

(ii) for a second or subsequent offence, a fine of at least $2,000. and not more than $100,000.

Additional penalty

79(3)       A justice who finds a person guilty of an offence under this section in respect of a quantity of bulk fuel must impose, in addition to a penalty under subsection (2), a fine equal to three times the tax that would be payable on a purchase of the bulk fuel by a purchaser, unless that additional amount has already been paid under section 34 following a seizure of the bulk fuel.

Offences — marking or stamping tobacco packaging

80(1)       A person is guilty of an offence who

(a) applies to the packaging of cigarettes or fine cut tobacco, otherwise than in accordance with the regulations under The Tobacco Tax Act, a mark or stamp to represent the packaging as being marked or stamped for the tax purposes of Manitoba;

(b) without lawful excuse, has in his or her possession

(i) a mark or stamp capable of being applied to the packaging of cigarettes or fine cut tobacco to represent the packaging as being marked or stamped for the tax purposes of Manitoba,

(ii) an instrument or machine that is designed, adjusted or modified to apply to the packaging of cigarettes or fine cut tobacco a mark or stamp to represent the packaging as being marked or stamped for the tax purposes of Manitoba, or

(iii) an instrument or machine that is designed, adjusted or modified to produce a mark or stamp capable of being applied to a package of cigarettes or fine cut tobacco to represent the packaging as being marked or stamped for the tax purposes of Manitoba; or

(c) fails to comply with a requirement prescribed by regulation under The Tobacco Tax Act respecting the marking or stamping of cigarettes or fine cut tobacco for the tax purposes of Manitoba.

Offences — possession or sale of tobacco

80(2)       A person is guilty of an offence who

(a) is in possession of unmarked tobacco contrary to section 3.1 or 3.3 of The Tobacco Tax Act;

(b) is in possession of marked tobacco for the purpose of sale contrary to section 3.4 of The Tobacco Tax Act;

(c) is in possession of tobacco, other than cigarettes or fine cut tobacco, contrary to section 3.6 of The Tobacco Tax Act;

(d) sells or offers to sell unmarked tobacco contrary to section 3.2 of The Tobacco Tax Act; or

(e) sells or offers to sell marked tobacco contrary to section 3.4 of The Tobacco Tax Act.

Offence — accounting for tax on tobacco

80(3)       A dealer under The Tobacco Tax Act who fails to report, account for or remit tax in respect of tobacco contrary to subsection 9(2) of that Act is guilty of an offence.

Penalty

80(4)       A person who is guilty of an offence under this section is liable, on summary conviction, to the following penalty:

(a) in the case of an offence under subsection (1) (marking or stamping tobacco packaging), the penalty prescribed by subsection 75(4);

(b) in the case of an offence under subsection (2) (possession or sale of tobacco) or (3) (accounting for tax on tobacco), the penalty prescribed by subsection 76(4).

Additional fine

80(5)       If a person is found guilty of an offence under this section in respect of a quantity of tobacco, the justice must impose, in addition to the penalty imposed under subsection (4) and regardless of whether the person purchased the tobacco, a fine equal to

(a) three times the tax that would be payable under The Tobacco Tax Act on a purchase of that quantity of tobacco by a purchaser; or

(b) if the person has also been convicted of an offence under the Excise Act, 2001 (Canada) in respect of the same tobacco, the greater of

(i) the difference between the amount determined in clause (a) and the fine imposed under the Excise Act, 2001 (Canada) in respect of the offence, and

(ii) the tax that would be payable under The Tobacco Tax Act on a purchase of that quantity of tobacco by a purchaser.

Reduction of additional fine

80(6)       The additional fine under subsection (5) must be reduced by any amount paid under section 36 following a seizure of the tobacco.

Presumption re possession for purpose of sale

80(7)       In the prosecution of an offence under subsection (2) respecting the possession of tobacco for sale, proof of possession of more than 20 units of tobacco is proof of possession of that tobacco for the purpose of sale unless the contrary is shown.

Separate offence for each transaction

81          When an action or transaction that constitutes an offence is repeated, each such action or transaction is a separate offence.

Offence — corporation liable for offence by officer or employee

82(1)       If an individual commits an offence under this Act while acting within the scope of his or her authority as an officer, employee or agent of a corporation, the corporation is also guilty of an offence, whether or not the individual has been prosecuted or convicted, and is liable, on summary conviction, to the penalty to which a corporation committing the offence committed by the individual would be liable.

Offence — director or officer liable for offence by corporation

82(2)       If a corporation commits an offence under this Act, a director or officer of the corporation who authorized, permitted or acquiesced in the commission of the offence is also guilty of an offence, whether or not the corporation has been prosecuted or convicted, and is liable, on summary conviction, to the penalty to which an individual committing the offence committed by the corporation would be liable.

Six-year limitation period for prosecution

83(1)       Subject to subsection (2), a prosecution for an offence under this Part may only be commenced within six years after the commission of the alleged offence.

Extended limitation period for certain offences

83(2)       A prosecution of an alleged offence under any of the following provisions may be instituted beyond the six-year period, but only if it is instituted within two years after evidence sufficient to justify the prosecution came to the attention of the director:

(a) clause 75(1)(c) (false or misleading statement);

(b) clause 75(1)(d) (material omission);

(c) subclause 76(1)(c)(iii) (providing false or misleading information to tax officer);

(d) subsection 76(2) (evasion).

For this purpose, a certificate of the director as to when evidence came to his or her attention is proof of that fact unless the contrary is shown.  Proof of the director's signature is not required.

Affidavit as to compliance by director

84(1)       An affidavit by the director as to the facts necessary to establish that he or she has complied with a provision of a tax Act is admissible in any proceeding as proof of those facts unless the contrary is shown.

Certificate of analyst

84(2)       A certificate appearing to be signed by a person appointed by the director as a fuel analyst — or a copy or extract of such a certificate certified by the analyst to be a true copy or extract — stating that he or she has analyzed a fuel sample, and giving the results, is admissible in evidence in any proceeding as proof of the facts stated unless the contrary is shown.  Proof of the analyst's appointment or signature is not required.

DIVISION 7

REGULATIONS

Regulations

85(1)       The Lieutenant Governor in Council may make regulations

(a) prescribing the changes necessary for section 232 of the Income Tax Act (Canada) to apply as provided for in subsection 1(3);

(b) respecting the disclosure of non-financial information by persons employed in the administration of a tax Act;

(c) respecting the service of documents under a tax Act;

(d) prescribing records to be kept by taxpayers and how they are to be kept;

(e) respecting the disposition of any of the following:

(i) perishable or dangerous things seized by a tax officer,

(ii) tobacco seized by a tax officer,

(iii) a motor vehicle impounded under section 78;

(f) prescribing fees or charges that may be charged to taxpayers, and the circumstances in which they may be charged;

(g) prescribing information to be included in

(i) a certificate used to register a lien under section 65 against real property, or

(ii) a financing statement used to register a lien under section 66 against personal property;

(h) respecting any other matter that the Lieutenant Governor in Council considers necessary or advisable for the administration or enforcement of a tax Act.

Effective date

85(2)       A regulation under subsection (1) may be made retroactive to the extent the Lieutenant Governor in Council considers it necessary in order to implement or give effect to

(a) a tax or administrative measure included in a budget presented to the Legislative Assembly; or

(b) an amendment to this Act.

DIVISION 8

TRANSITIONAL PROVISIONS

Definitions

86          The following definitions apply in this Division.

"effective date" means the day on which this Part, as enacted by The Budget Implementation and Tax Statutes Amendment Act, 2005, comes into force. (« date d'entrée en vigueur »)

"former Act" means a tax Act as it read immediately before the effective date. (« ancienne loi »)

General application to prior periods and events

87          Except as otherwise provided in this Division or the regulations, this Part applies to

(a) an inspection, examination or audit of any taxpayer or of any period or matter, including an inspection, examination or audit that began under a former Act;

(b) the assessment or reassessment of an amount in respect of any period or matter, including one that occurred before the effective date; and

(c) the recovery of any tax debt, including a tax debt that arose before the effective date.

Penalty for late payment or remittance

88          A penalty may be imposed under section 39 in respect of a failure to pay or remit tax when it was due even if the failure occurred before the effective date.

Interest

89          Interest may be charged under this Part in respect of a period before the effective date.

Matters under appeal

90(1)       If on the effective date a matter is under appeal under a former Act, the former Act continues to apply to the appeal and to any further appeal allowed by the former Act.

Appeal period not expired

90(2)       A notice of assessment, reassessment, estimate or revised estimate that was served on a taxpayer under a former Act and is not under appeal on the effective date may be appealed under Division 4 as if it were a notice of assessment or reassessment issued under this Part and served on the taxpayer at the time that the notice under the former Act was served on the taxpayer.

Appeal of minister's decision or order under former Act

90(3)       The provisions of a former Act respecting the appeal of a decision or order of the minister under that Act continue to apply to any decision or order of the minister made under that Act before the effective date.

Priority of lien registered under former Act

91(1)       If a lien arising under a former Act was registered

(a) in a land titles office before the effective date; or

(b) in the Personal Property Registry before March 9, 2005;

the provisions of the former Act respecting the priority of that lien continue to apply.

Priority of lien registered against personal property after March 8, 2005

91(2)       Despite the provisions of the former Acts, section 66 applies in determining the priority of a lien that was registered under a former Act in the Personal Property Registry after March 8, 2005.

Realization, postponement, amendment or discharge of prior lien

91(3)       Sections 65 and 66 apply to the realization, postponement, amendment or discharge of a lien that arose under a former Act and was registered before the effective date.

Lien may be registered under this Part

91(4)       A lien may be registered under section 65 or 66 in respect of a tax debt all or any part of which arose or is attributable to a period or matter occurring before the effective date.

Continuation of debt recovery action

92          Subject to section 91, if any debt recovery action of a kind referred to in section 61 was commenced or taken under a former Act before the effective date, the former Act continues to apply to that debt recovery action.

Offences and penalties

93          The provisions of a former Act respecting offences and penalties for offences continue to apply in respect of acts or omissions that occurred before the effective date.  Division 6 (Offences and Penalties) of this Part applies only to acts or omissions occurring on or after the effective date.

Tax officers

94          Every person who is duly authorized by the minister to carry out an inspection, examination or audit under a former Act is deemed to have been designated by the director as a tax officer on the effective date.

Regulations

95(1)       The Lieutenant Governor in Council may make regulations clarifying, extending or limiting the application, after the effective date, of a provision of this Part or of a former Act to any period or matter occurring before the effective date.

Effective date of regulation

95(2)       A regulation under subsection (1) may be made retroactive to a date not earlier than the effective date.

86          Section 1 is renumbered as section 96 and is amended

(a) by replacing the definition "domestic purchaser" with the following:

"domestic purchaser" means a purchaser of a taxable product who uses the product solely to heat or serve a dwelling unit in which he or she resides; (« consommateur »)

(b) by repealing the definitions "farm buildings" and "farm stock";

(c) by replacing the definition "person" with the following:

"person" includes a partnership; (« personne »)

(d) in the part of the definition "purchase price" after clause (b), by striking out everything after "municipal corporation";

(e) by adding the following definition:

"purchase" means to

(a) purchase, acquire, command, receive or produce taxable product in Manitoba, or

(b) bring, or cause it to be brought, taxable product into Manitoba,

for use or consumption in Manitoba by oneself, by a principal for whom one is acting as agent, or by any other person at the expense of oneself or one's principal; (« acheter »)

(f) by replacing the definition "purchaser" with the following:

"purchaser" means a person who purchases taxable product; (« acheteur »)

(g) in the definition "tax", by striking out "section 3" and substituting "this Part".

87          Sections 2 and 3 are renumbered and replaced with the following:

Tax imposed

97(1)       Except as otherwise provided in this section and section 99, every purchaser of a taxable product must pay to the minister a tax equal to 7% of the purchase price of the product.

Tax to nearest cent

97(2)       The tax must be computed to the nearest cent, with a fraction of 1/2 cent or more counted as one cent.

When tax payable

97(3)       If the purchaser acquires the taxable product from a dealer, the tax is payable to the dealer at the time the purchase price of the product is due and payable.

Transportation charge payable to other dealer

97(4)       Despite subsection (3), if a taxable product is purchased from one dealer and delivered by another dealer who charges the purchaser for transportation of the taxable product, the tax payable in respect of the transportation charge is payable to that other dealer at the time that the charge is due and payable.

Taxable product acquired otherwise than from a dealer

97(5)       A purchaser who is required to pay tax on a taxable product purchased otherwise than from a dealer must report the purchase and pay the tax in accordance with the regulations.

Consumption of taxable product on which tax not paid

98          A person who consumes in Manitoba a taxable product that was

(a) acquired by the person for resale; or

(b) produced by the person in the normal course of business;

is deemed for the purpose of this Part to have purchased the taxable product in Manitoba.

Exemptions for domestic and farm uses of electricity and gas

99(1)       Electricity and natural or manufactured gas may be purchased exempt from tax when purchased

(a) for use only in heating a dwelling unit in which the purchaser resides;

(b) for use only in heating a farm building, unless the building is not used exclusively for grain, forage or horticultural crops or edible mushrooms grown on the land on which the building is situated, or for keeping farm stock raised on that land; or

(c) for use only in operating a grain dryer, unless the dryer is not used exclusively for drying grain, forage or horticultural crops grown on the land on which the dryer is situated.

Exemption for domestic use of coal and derivatives

99(2)       Coal and derivatives of coal may be purchased exempt from tax when purchased for use only in heating a dwelling unit in which the purchaser resides.

Partial exemption for combined use

99(3)       When electricity or natural or manufactured gas is purchased for

(a) a use described in subsection (1); and

(b) any other use by the purchaser;

the tax otherwise payable in respect of the purchase is reduced by 80%.

88(1)       Subsections 3.1(1) and (2) are renumbered as subsections 100(1) and (2).

88(2)       Subsection 3.1(3) is renumbered and replaced with the following:

Special rate for electricity used in mining and manufacturing

100(3)      With the approval of the minister, the tax otherwise payable on electricity purchased by a qualifying manufacturer from a dealer and used by the qualifying manufacturer in the operation of manufacturing machinery or equipment may be reduced by 80%.

88(3)       Subsections 3.1(4) and (5) are repealed.

88(4)       Subsections 3.1(7) and (8) are renumbered and replaced with the following:

Approval and notice of special rate

100(4)      The minister, upon receipt of an application for the rate reduction and being satisfied that the applicant is a qualifying manufacturer, may approve the rate reduction under subsection (3).  The minister must notify the manufacturer and the dealer that the rate reduction has been approved.

Application of rate reduction

100(5)      Once approved, the rate reduction applies to each billing period beginning after the application for the rate reduction was received by the minister and continues until the applicant ceases to be a qualifying manufacturer.

Notice of change

100(6)      When a person to whom the rate reduction applies ceases to be a qualifying manufacturer, the person must immediately notify the minister and the dealer of that fact.

89          Section 4 is renumbered and replaced with the following:

Dealer to be licensed

101(1)      No person shall act as a dealer except under the authority of a licence issued under this section.

Director may issue licence

101(2)      The director may issue a licence, with or without terms and conditions, authorizing a person to act as a dealer.

Licence not transferable

101(3)      The licence is not transferable.

90          Section 5 is renumbered as section 102.

91          Section 5.1 is repealed.

92(1)       Subsection 6(1) is renumbered as subsection 103(1) and is amended by striking out "section 3" and substituting "this Part".

92(2)       Subsection 6(2) is renumbered and replaced with the following:

Tax on sale to non-purchaser

103(2)      Subject to the regulations, a dealer who sells a taxable product to a person who claims not to be a purchaser and is not a licensed dealer must require the person to pay the tax imposed by section 97.  The person is entitled to a refund of the tax upon satisfying the director that he or she is not a purchaser in relation to that sale.

92(3)       Subsections 6(4) to (6) are repealed.

92(4)       Subsection 6(7) is renumbered and replaced with the following:

Dealer to file returns and remit tax

103(3)      Every dealer must

(a) collect the tax payable under section 97 at the time that it is payable; and

(b) in accordance with the regulations

(i) file returns with the director, and

(ii) remit to the minister the tax that the dealer collected and any amount that the dealer was required to collect as tax but did not collect.

Recovery of amount remitted but not collected

103(4)      A dealer who remits an amount in respect of tax payable by a purchaser that the dealer did not collect from the purchaser is entitled to recover that amount in a court of competent jurisdiction as a debt owing by the purchaser to the dealer.

92(5)       Subsections 6(8) to (13) are repealed.

93(1)       Subsections 7(1) and (2) are renumbered as subsections 104(1) and (2), respectively.

93(2)       Subsections 7(3) to (5) are repealed.

94          Section 9 is renumbered as section 105.

95          Section 9.1 is renumbered as section 106 and is amended

(a) in subsection (1), by striking out "section 3" and substituting "this Part"; and

(b) in the part of subsection (2) before the formula, by striking out "section 6" and substituting "this Part".

96          Section 10 is repealed.

97          Section 11 is renumbered as section 107 and is amended in clause (a) of the English version by adding "or her" after "by him" wherever it occurs.

98          Sections 12 to 22.1 are repealed.

99          Section 23 is renumbered as section 108 and is amended

(a) in clause (2)(b), by striking out "authorized under section 5 and subsection 6(2)" and substituting "under this Part or Part I of amounts paid as tax under this Part"; and

(b) in clause (2)(c), by striking out "section 11" and substituting "section 107".

100         Sections 23.1 and 23.2 are repealed.

101         Section 24 is renumbered and replaced with the following:

Regulations

109(1)      The Lieutenant Governor in Council may make regulations

(a) respecting the collection and remittance of tax under this Part;

(b) excluding certain classes of coal or derivatives of coal from the meaning of "taxable product";

(c) respecting the calculation of tax where the purchase price of a taxable product is charged by monthly or other periodic billings;

(d) respecting the application for, and terms or conditions of, licences under section 101;

(e) exempting dealers from the obligation to collect tax on sales to certain purchasers, and providing for other means of collecting the tax;

(f) respecting refunds and applications for refunds;

(g) establishing allowances that may be claimed under section 107 for losses of taxable product;

(h) respecting any other matter the Lieutenant Governor in Council considers necessary or advisable for the effective administration of this Part.

Effective date

109(2)      A regulation under this section may be made retroactive to the extent the Lieutenant Governor in Council considers it necessary in order to implement or give effect to

(a) a tax or administrative measure included in a budget presented to the Legislative Assembly; or

(b) an amendment to this Act.

Application of Part I

110         Part I (Tax Administration) applies to the administration and enforcement of this Part.

102         Part II is repealed.

103         Section 33 is renumbered as section 111.

104(1)      Subsection 34(1) is renumbered as subsection 112(1) and is amended in the part before the formula by striking out "subsections (1.1) and (1.2) and sections 35 and 36" and substituting "subsections (2) and (3) and sections 113 and 114".

104(2)      Subsections 34(1.1), (1.2), (2) and (3) are renumbered as subsections 112(2) to (5).

105         Subsections 35(1), (1.1), (1.2) and (2) are renumbered as subsections 113(1) to (4).

106         Section 36 is renumbered as section 114 and is amended in clause (1)(d) by striking out "section 34" and substituting "section 112".

107         Sections 37 to 40 are renumbered as sections 115 to 118.

108         Section 42 is renumbered as section 119.

109         Section 43 is renumbered and replaced with the following:

Application of Part I

120         The provisions of Part I (Tax Administration) apply with necessary modifications to the collection of tax, penalties and interest payable under this Part.

110         Section 44 is renumbered as section 121.

111         Section 45 is renumbered as section 122 and is amended

(a) in the definition "collector", by striking out "subsection 47(1)" and substituting "subsection 124(1)";

(b) in the definition "deputy collector",

(i) by striking out "subsection 47(2)" and substituting "subsection 124(2)", and

(ii) by striking out "subsection 47(3)" and substituting "subsection 124(3)"; and

(c) in the definition "tax", by striking out "section 46" and substituting "section 123".

112         Sections 46 to 48 are renumbered as sections 123 to 125 and the following is added after those sections:

PART V

C.C.S.M. REFERENCE

C.C.S.M. reference

126         This Act shall no longer be referred to as chapter R150 of the Continuing Consolidation of the Statutes of Manitoba but may be referred to as chapter T2 of the Continuing Consolidation of the Statutes of Manitoba.

PART 13

THE TOBACCO TAX ACT

C.C.S.M. c. T80 amended

113         The Tobacco Tax Act is amended by this Part.

114         Subsection 1(1) is amended

(a) in the definition "licence", by striking out "minister" and substituting "director";

(b) in the definitions "marked for the tax purposes of Manitoba" and "stamped for the tax purposes of Manitoba", by striking out "28(o)" and substituting "28(1)(o)";

(c) by repealing the definition "peace officer"; and

(d) in the definition "permit", by striking out "under section 3.5" and substituting "under this Act".

115         The following is added after section 1:

Administration and enforcement

1.1         Part I of The Tax Administration and Miscellaneous Taxes Act applies to the administration and enforcement of this Act.

116         In the following provisions,"clause 28(o)" is struck out and "clause 28(1)(o)" is substituted:

(a) clause 3.1(3)(d);

(b) section 3.2.

117         The centred heading before section 3.1 is amended by striking out "CIGARETTES AND FINE CUT" and substituting "POSSESSION OR SALE OF".

118         Section 3.5 and the centred headings before and after that section are repealed.

119         The centred heading after section 3.6 is replaced with "LICENCES AND PERMITS".

120         Subsections 4(1), (2), (4), (5) and (6) are amended by striking out "minister" and substituting "director".

121         The following is added after section 4:

Permit for possession of cigarettes or fine cut tobacco

4.1         The director may issue a permit for a person to possess cigarettes or fine cut tobacco the packaging of which is not marked or stamped for the tax purposes of Manitoba.  In doing so, the director may impose any conditions or restrictions the director considers appropriate, including a condition that the holder

(a) pay the anticipated amount of tax or account for it;

(b) provide security for the tax that may be payable or the holder may be required to account for; or

(c) comply with the regulations with respect to the stamping of the packaging of cigarettes or fine cut tobacco for the tax purposes of Manitoba.

Permit required for producing tear tape

4.2(1)      No person shall produce Manitoba tear tape, as defined in the regulations, except under the authority of a permit issued by the director.

Possession of tear tape prohibited

4.2(2)      No person shall possess Manitoba tear tape without lawful excuse.

122(1)      Subsection 5(1) is replaced with the following:

Director may issue licence or permit

5(1)        The director may issue any licence or permit required or authorized by this Act.  It must contain such information as the regulations require, and may be issued subject to any conditions or restrictions not inconsistent with this Act and the regulations that the director considers appropriate.

122(2)      Subsection 5(2) is amended by adding "or permit" after "licence" in the section heading and in the subsection.

122(3)      Subsection 5(3) is amended by

(a) in the section heading, by adding "or permit" after "licence"; and

(b) in the subsection, by adding "or permit under this Act" after "A licence".

122(4)      Subsection 5(4) is replaced with the following:

Licence or permit not transferable

5(4)        A licence or permit is not transferable, and no person may act under it or rely upon it other than

(a) the person to whom it was issued; or

(b) any other person in his or her capacity as an employee or agent of the person to whom it was issued.

123         The following provisions are repealed:

(a) sections 6 to 8;

(b) subsections 9(5) to (9.2) and (13) to (17);

(c) subsection 10(4);

(d) subsections 11(2) and (3);

(e) subsections 12(3) to (5);

(f) subsections 13(8) and (9);

(g) sections 14 to 17;

(h) subsection 18(1) and the centred heading immediately before that section;

(i) section 20 and the centred heading immediately before that section;

(j) sections 21 to 26.2;

(k) subsection 27(2);

(l) sections 27.1 and 27.2.

124(1)      Subsection 28(1) is amended

(a) in subclause (b.2)(iii), by striking out "28";

(b) in clause (c), by adding "or permits" after "licences";

(c) in clause (e) of the English version, by adding "the" before "fee";

(d) by replacing clause (g) with the following:

(g) prescribing terms, conditions or restrictions for licences and permits;

(e) in clause (l), by striking out "records,";

(f) by repealing clauses (l.1) and (l.2);

(g) in clause (o), by striking out "and" at the end of subclause (i), replacing the semi-colon at the end of subclause (ii) with ", and" and adding the following after subclause (ii):

(ii.1) defining the expression "Manitoba tear tape",

(h) by repealing clauses (q.2), (r) and (s); and

(i) by adding the following after clause (v):

(w) establishing a system for the sale of tobacco to purchasers in circumstances where they are not required by law to pay tax, which may include limits, or enable the director to set limits, that may be different for different dealers, on the quantity of tobacco that may be sold to or purchased by a retail dealer for resale to purchasers in those circumstances.

124(2)      The following is added after subsection 28(2):

Effective date

28(3)       A regulation under subsection (1), other than a regulation under clause (1)(v), may be made retroactive to the extent the Lieutenant Governor in Council considers it necessary in order to implement or give effect to

(a) a tax or administrative measure included in a budget presented to the Legislative Assembly; or

(b) an amendment to this Act.

PART 14

MISCELLANEOUS AMENDMENTS

Consequential amendment, C.C.S.M. c. B5

125         Clause 10(1)(d) of The Balanced Budget, Debt Repayment and Taxpayer Accountability Act is replaced with the following:

(d) Part I.1 of The Tax Administration and Miscellaneous Taxes Act.

C.C.S.M. c. C107 amended

126         In the following provisions of The Civil Remedies Against Organized Crime Act , "registration certificate" is struck out and "RST number" is substituted:

(a) clauses 3(2)(a) and (b) and 4(1)(b);

(b) subsection 4(3), in the subsection and in the section heading;

(c) clauses 5(2)(d) and (e).

Consequential amendments, C.C.S.M. c. E110

127(1)      The Employment Standards Code is amended by this section.

127(2)      Section 101 is amended in the part before clause (a) by adding ", 102.1 (priority of certain tax liens)" before "and 106".

127(3)      The following is added after section 102:

Priority of lien for tax collected and not remitted

102.1       A lien and charge under subsection 94(2) and section 100 does not take priority over a lien for taxes to which priority is given by subsection 66(3) of The Tax Administration and Miscellaneous Taxes Act.

Consequential amendments, C.C.S.M. c. F20

128(1)      The Family Maintenance Act is amended by this section.

128(2)      Subsection 59.4(5) is amended in the part before clause (a) by striking out "and subject to subsection (6) (priority of prior purchase money security interests)" and substituting "but subject to subsections (6) and (7)".

128(3)      The following is added after subsection 59.4(6):

Priority of lien for tax collected and not remitted

59.4(7)     A lien and charge under subsection (2) does not take priority over a lien for taxes to which priority is given by subsection 66(3) of The Tax Administration and Miscellaneous Taxes Act.

Consequential amendment, C.C.S.M. c. S230

129         Subsection 23.3(3) of The Summary Convictions Act is amended by striking out "or" at the end of clause (b), adding "or" at the end of clause (c) and adding the following after clause (c):

(d) a lien for taxes to which priority is given by subsection 66(3) of The Tax Administration and Miscellaneous Taxes Act.

Consequential amendment, C.C.S.M. c. W200

130         Subsection 104(3) of The Workers Compensation Act is amended by striking out "and" at the end of clause (a), adding "and" at the end of clause (b) and adding the following after clause (b):

(c) a lien for taxes to which priority is given by subsection 66(3) of The Tax Administration and Miscellaneous Taxes Act.

Unproclaimed provisions in S.M. 1992, c. 52 repealed

131         Subsections 81(1) and (2) of The Statute Law Amendment (Taxation) Act, 1992, S.M. 1992, c. 52, are repealed.

Unproclaimed provisions in S.M. 2000, c. 39 repealed

132         Subsections 5(2), 89(4) and 91(1) of The Statute Law Amendment (Taxation) Act, 2000, S.M. 2000, c. 39, are repealed.

Unproclaimed provisions in S.M. 2002, c. 38 repealed

133         Sections 4 to 6 of The Public Health Amendment Act, S.M. 2002, c. 38, are repealed.

Unproclaimed provisions in S.M. 2003, c. 5 amended or repealed

134(1)      This section amends The Biofuels and Gasoline Tax Amendment Act, S.M. 2003, c. 5 (referred to in this section as the "amending Act"), which is not yet in force.

134(2)      Subsection 10(4) is amended by striking out "Sections 16 to 18 of The Gasoline Tax Act also apply" and substituting "Part I, Division 5 (Tax Debt Recovery) of The Tax Administration and Miscellaneous Taxes Act applies".

134(3)      In the following provisions of the amending Act, "minister" is struck out and "director" is substituted:

(a) subsection 20(14), in clause 4(5)(a) of The Gasoline Tax Act as enacted by that subsection; and

(b) subsection 20(18), in clause 5(4)(a) and subclause 5(4.1)(a)(i) The Gasoline Tax Act as enacted by that subsection.

134(4)      Subsections 20(20) and (22) are repealed.

Conditional amendment

135         When clause 20(2)(d) of The Biofuels and Gasoline Tax Amendment Act, S.M. 2003, c. 5, comes into force, clause 77(1)(g) of The Tax Administration and Miscellaneous Taxes Act, as enacted by this Act, is amended by striking out "denatured alcohol" and substituting "denatured ethanol".

PART 15

COMING INTO FORCE

Coming into force

136(1)      Except as otherwise provided in this section, this Act comes into force on the day it receives royal assent.

Part 1: Corporation Capital Tax Act

136(2)      Part 1 comes into force on July 1, 2005.

Part 2: Gasoline Tax Act

136(3)      Part 2 comes into force on July 1, 2005.

Part 3: Health and Post Secondary Education Tax Levy Act

136(4)      Sections 17 to 19 and 22 to 24 come into force on July 1, 2005.

Part 4: Income Tax Act

136(5)      Section 26 is deemed to have come into force on January 1, 2004.

136(6)      Subsection 29(2) applies to the 2004 and subsequent taxation years and comes into force on the day this Act receives royal assent or when section 24 of A second Act to implement certain provisions of the budget tabled in Parliament on March 23, 2004, Bill C-33, 38th Parliament, 1st Session, as passed by the House of Commons, comes into force, whichever is later.

136(7)      Section 30 is deemed to have come into force on January 1, 2005.

136(8)      Subsections 33(2) to (4) and sections 35 and 36 are deemed to have come into force on March 9, 2005.

136(9)      Section 37 and subsection 39(2) are deemed to have come into force on April 20, 2004.

136(10)     Section 38 comes into force on January 1, 2006.

Part 6: Mining Tax Act

136(11)     Part 6 comes into force on July 1, 2005.

Part 7: Motive Fuel Tax Act

136(12)     Sections 54, 55 and 57 to 59 come into force on July 1, 2005.

Part 8: Municipal Act

136(13)     Section 60 and subsection 61(1) come into force on January 1, 2006.

136(14)     Subsection 61(2) comes into force on the day that Bill 18 of the Third Session of the 38th Legislature, entitled "Le Collège de Saint-Boniface Incorporation Amendment Act", comes into force.

Part 9: Property Tax and Insulation Assistance Act

136(15)     Part 9 is deemed to have come into force on January 1, 2005.

Part 10: Provincial-Municipal Tax Sharing Act

136(16)     Part 10 is deemed to have come into force on April 1, 2005.

Part 11: Retail Sales Tax Act

136(17)     Sections 71 and 72, subsection 73(2) and sections 75 to 82 come into force on July 1, 2005.

136(18)     Subsections 73(1) and (3) and section 74 are deemed to have come into force on March 8, 2005.

Part 12: Revenue Act

136(19)     Subject to subsection (20), Part 12 comes into force on July 1, 2005.

136(20)     Clause 10(2)(d) of The Tax Administration and Miscellaneous Taxes Act, as enacted by section 85 of this Act, comes into force on the day that The Public Health Amendment Act, S.M. 2002, c. 38, comes into force.

Part 13: Tobacco Tax Act

136(21)     Sections 114, 115, 117 to 123, clauses 124(1)(e) and (h) and subsection 124(2) come into force on July 1, 2005.

Part 14: Miscellaneous amendments

136(22)     Sections 125 and 127 to 135 come into force on July 1, 2005.