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The Tax Administration and Miscellaneous Taxes Act
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This version is current as of June 22, 2016.
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C.C.S.M. c. T2

The Tax Administration and Miscellaneous Taxes Act

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

PART I

TAX ADMINISTRATION

NOTE:

Former Part I (sections 1 to 24) "Tax on Electricity and Certain Other Products" was amended and renumbered as Part I.1 (sections 96 to 110) by S.M. 2005, c. 40, Part 12.  See the Table of Concordance at the end of this Act.

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 bulk fuel as defined in The Fuel Tax Act. (« carburant en vrac »)

"carrier licence" means a carrier licence as defined in section 23 of The Fuel Tax Act. (« 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 required by a tax Act to collect and remit tax to a 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 fuel as defined in The Fuel Tax Act. (« carburant »)

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

"marked fuel" means marked fuel as defined in The 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, a trust and the Crown in right of Manitoba. (« 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;

(a.1) The Credit Unions and Caisses Populaires Profits Tax Act;

(a.2) The Emissions Tax on Coal and Petroleum Coke Act;

(b) The Fuel Tax Act;

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

(d) The Mining Tax Act;

(e) [repealed] S.M. 2010, c. 29, Sch. B, s. 39;

(f) The Retail Sales Tax Act;

(g) The Tobacco Tax Act;

(h) this Part;

(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 as a tax officer under section 4 or belonging to a class of persons designated as tax officers under that section;

and, except for the purposes of section 4, clauses 22(1)(b) to (d) and subsection 22(3), includes a peace officer. (« 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.

Interpretation of tax Acts

1(5)        For greater certainty, the tax Acts must be interpreted so as not to derogate from the exemption from taxation of property under subsection 87(1) or (2) of the Indian Act (Canada).

S.M. 2005, c. 40, s. 85; S.M. 2006, c. 24, s. 77; S.M. 2007, c. 6, s. 76; S.M. 2010, c. 29, s. 54 and Sch. B, s. 39; S.M. 2011, c. 41, Sch. A, s. 5; S.M. 2014, c. 35, s. 64.

Crown bound

2           This Act binds the Crown.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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.

Designation of tax officer as peace officer

4(2)        The director may designate a tax officer or a class of tax officers as peace officers for the purpose of the administration and enforcement of any or all of the tax Acts. Any tax officer so designated, or belonging to a class of tax officers so designated, in relation to a tax Act is deemed for the purpose of The Summary Convictions Act to be a peace officer in relation to that tax Act.

S.M. 2005, c. 40, s. 85; S.M. 2011, c. 41, s. 48.

Provisions not applicable to tax officers, etc.

4.1         No provision of a tax Act

(a) that restricts or prohibits the possession, use or operation of any thing; or

(b) under which the possession, use or operation of any thing by a person is an offence;

applies to

(c) a tax officer who purchases, obtains or is in possession of the thing in connection with the administration or enforcement of a tax Act;

(d) a peace officer who purchases, obtains or is in possession of the thing in connection with the performance of his or her duties;

(e) a member of the technical or scientific staff of a department of the Government of Canada or Manitoba who is in possession of the thing for the purposes of, and in connection with, his or her employment; or

(f) a person acting as an agent for a person described in clause (c), (d) or (e).

S.M. 2011, c. 41, s. 49; S.M. 2013, c. 55, s. 51.

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.

S.M. 2005, c. 40, s. 85.

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 country or by another provincial, territorial, municipal or state government 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.

S.M. 2005, c. 40, s. 85; S.M. 2013, c. 55, s. 52.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

Earlier due date

9(1)        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 statutory or government holiday, that deadline is deemed to occur on the last preceding day that does not fall on a weekend or a statutory or government holiday.

Exception

9(2)        Despite subsection (1), if the due date for filing a periodic return of information or remitting the tax to be remitted with such a return falls on a weekend or a statutory or government holiday, the due date is extended to the next day that does not fall on a weekend or a statutory or government holiday.

S.M. 2005, c. 40, s. 85; S.M. 2007, c. 6, s. 77; S.M. 2011, c. 41, s. 50.

DIVISION 2

COMPLIANCE

TAX AUTHORIZATIONS

Director may issue tax authorization

10(1)       A tax authorization may be issued by the director subject to any terms or conditions that are not inconsistent with the tax Act under which the tax authorization is required and the regulations under that Act.

Application for tax authorization

10(1.1)     A person requiring a tax authorization must apply to the director for it in a form approved by the director, and must pay any applicable fee.

Order to apply for tax authorization

10(1.1.1)   The director may issue an order requiring a person who requires a tax authorization to apply for that authorization within 30 days after receiving the order.

Director may assign RST number without application

10(1.1.2)   If a person who has been ordered to apply for an RST number under The Retail Sales Tax Act fails to apply for it as ordered, the director may assign an RST number to the person without an application.

Reasons not to issue tax authorization

10(1.2)     The director may refuse to issue a tax authorization to a person who

(a) has been convicted of an offence under a tax Act or under an Act of Canada or of another province or territory of Canada that imposes a tax or levies a duty;

(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 reason not to issue tax authorization to corporation, partnership or trust

10(1.3)     The director may refuse to issue a tax authorization to a corporation, partnership or trust if

(a) in the case of a corporation, a director or officer of the corporation, or a person who controls the corporation or belongs to a related group that controls the corporation;

(b) in the case of a partnership, a member or officer of the partnership, or a person who controls the partnership or belongs to a related group that controls the partnership; or

(c) in the case of a trust, a trustee or officer of the trust, or a person who controls the trust or belongs to a related group that controls the trust;

has been convicted of an offence under a tax Act or under an Act of Canada or of another province or territory of Canada that imposes a tax or levies a duty or was, at the time of the commission of such an offence by a corporation that was later convicted of the offence, a director or officer of that corporation.

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 any mark or stamp capable of being applied to the packaging of a tobacco product to represent it as being marked or stamped for the tax purposes of Manitoba, if the director is not satisfied that the applicant for the permit will

(i) take reasonable steps to ensure the security of the marks or stamps in the applicant's possession and the applicant's equipment for producing marks or stamps,

(ii) ensure that the marks or stamps produced by the applicant will identify them as having been produced by the applicant,

(iii) keep adequate records of the quantity of marks or stamps produced by the applicant, and

(iv) cooperate with an inspection, examination or audit;

(d) a tax authorization under The 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 71 of The Public Health Act, at the time it was seized under that Act, if a justice has made an order under subsection 74(6) of that Act forfeiting the intoxicating substance or paraphernalia; and

(e) a tax authorization to a person if the director has reason to believe that it would be in the public interest to do so.

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 this section. But a carrier licence may be cancelled only if it was issued by the director.

Stop order

10(3.1)     The director may, by written order, require a person to stop or refrain from doing any activity for which a tax authorization is required if the person is doing the activity without the required tax authorization.

Opportunity to make submission

10(4)       Before refusing to issue a tax authorization or issuing an order under subsection (3) or (3.1), the director must notify the affected person in writing

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

(b) that the person may, within 14 days after the notice is served on the person, make a written submission setting out the reasons that decision or order should not be made or issued.

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 order becomes effective

10(6)       Subject to subsection (7), an order under subsection (3), (3.1) or (5) 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).

S.M. 2005, c. 40, s. 85; S.M. 2007, c. 6, s. 78 and 103; S.M. 2009, c. 26, s. 63; S.M. 2010, c. 29, Sch. B, s. 39; S.M. 2011, c. 41, s. 51; S.M. 2012, c. 1, s. 74; S.M. 2015, c. 40, s. 43.

Tax authorization not transferable

10.1        A tax authorization is not transferable.

S.M. 2009, c. 26, s. 64.

Tax authorization does not satisfy other requirement

10.2        The requirement for a tax authorization is in addition to any other requirement in an Act or regulation for a licence, permit or other authorization.

S.M. 2009, c. 26, s. 64.

Return of tax authorization

11(1)       If an order under section 10 cancelling or suspending a tax authorization requires the tax authorization to be returned to the director, the holder of it must immediately return it to the director, along with any additional copies of it in the holder's possession.

Return of carrier decals

11(2)       When a carrier licence is cancelled by the director, the holder of it must immediately return to the director all unexpired carrier decals that were issued in connection with the licence.

S.M. 2005, c. 40, s. 85; S.M. 2010, c. 29, s. 55.

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 money or securities in lieu of a bond.

No interest on deposit

12(4)       No interest is payable by the government on money accepted by the director as security under this section.

Default

12(5)       To the extent of the amount in default under any obligation to pay or remit tax when it is due plus any interest or penalty payable on the amount in default, any money deposited with the government as security for that obligation becomes the property of the government when the default occurs.

S.M. 2005, c. 40, s. 85; S.M. 2015, c. 40, s. 44.

Collector is agent of government

12.1        For the purposes of collecting and remitting tax, a collector is an agent of the government.

S.M. 2009, c. 26, s. 65.

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.

S.M. 2005, c. 40, s. 85.

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 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 director may require the contractor to 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.

Maximum amount of security during infrastructure funding period

14(3.1)     The reference to "9.15%" in subsection (3) shall be read as "10.15%" during the infrastructure funding period as defined in The Retail Sales Tax Act.

Other form of security

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

Money on deposit as security

14(4.1)     Subsections 12(4) and (5) apply with necessary changes to money accepted by the director as security under this section.

Liability of principal

14(5)       If the extra-provincial contractor has not provided security under 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.

S.M. 2005, c. 40, s. 85; S.M. 2012, c. 1, s. 75; S.M. 2014, c. 35, s. 65; S.M. 2015, c. 40, s. 45.

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).

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

RECORDS

Taxpayer to maintain records

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

(a) this section and any applicable regulations; and

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

(c) [repealed] S.M. 2007, c. 6, s. 79.

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 Fuel Tax Act, at the request of the official or the director.

Holder of tax authorization to keep records

17(2.1)     The holder of a tax authorization must maintain records in accordance with

(a) this section and any applicable regulation;

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

(c) the terms and conditions of the tax authorization.

Records must be adequate

17(3)       The records that a person is required to maintain 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 person;

(b) the person's entitlement to any credit, commission, allowance or refund;

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

(d) the person'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 that records that are required to be maintained are inadequate for the proper administration and enforcement of a tax Act, the director may, by written order, require the person who is required to maintain them to do one or more of the following:

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

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

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

S.M. 2005, c. 40, s. 85; S.M. 2007, c. 6, s. 79; S.M. 2010, c. 29, Sch. B, s. 39.

How long records must be kept

18(1)       The records that a person is required to maintain under a tax Act must be preserved by the person 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), records may be destroyed 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 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 a person to keep records for a specified period to enable an inspection, examination or audit to be carried out or completed, the person 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)       If a person who is required to maintain records under a tax Act keeps them in electronic form, the person 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.

S.M. 2005, c. 40, s. 85; S.M. 2007, c. 6, s. 80.

Suppression software

18.1        No person shall possess, use, sell or offer to sell, update, upgrade or maintain software that is designed for, or is capable of,

(a) suppressing the creation of electronic records of sale transactions that a taxpayer is required to keep under this Act; or

(b) modifying, hiding, or deleting such records without keeping the original data and providing a ready means of access to them.

S.M. 2010, c. 29, s. 56.

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.

S.M. 2005, c. 40, s. 85.

Records to be made available for inspection, etc.

20          A person 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.

S.M. 2005, c. 40, s. 85; S.M. 2007, c. 6, s. 81.

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 or other person required to maintain records under a tax Act;

(b) a person who deals with or has dealt with a person referred to in clause (a); or

(c) a director, officer, agent or employee of a person referred to in clause (a) or (b).

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 person 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.

21(4)       [Repealed] S.M. 2008, c. 3, s. 74.

S.M. 2005, c. 40, s. 85; S.M. 2007, c. 6, s. 82; S.M. 2008, c. 3, s. 74.

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, or to do both.

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.

S.M. 2005, c. 40, s. 85; S.M. 2009, c. 26, s. 66.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

Right to take fuel samples

25(1)       When making an inspection under section 22 in relation to The 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 The 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 and take a sample of the fuel in the vehicle's fuel tank or in any container or receptacle on or attached to the vehicle or a trailer attached to the vehicle

(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.

Operator to cooperate

25(2.1)     When a tax officer signals or requests the operator to stop the vehicle under subsection (2), the operator must

(a) immediately bring the vehicle to a safe stop;

(b) immediately provide access to the fuel tank of the vehicle and, at the officer's request, to any container or receptacle on or attached to the vehicle or a trailer attached to the vehicle where the officer reasonably believes that marked fuel might be located; and

(c) permit the officer to examine the fuel in any such tank, container or receptacle and take samples of that fuel.

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.

Operator to provide proof of identity

25(4)       The operator of a vehicle stopped under subsection (2) or (3) must produce for inspection by the tax officer, upon request, his or her driver's licence or any other proof of identity acceptable to the officer.

S.M. 2005, c. 40, s. 85; S.M. 2006, c. 24, s. 78; S.M. 2010, c. 29, s. 57 and Sch. B, s. 39.

Faulty dye injector pump

25.1        If the director, based on an inspection by the director or a tax officer, reasonably believes that the use of a faulty dye injector pump on a truck or at a cardlock or bulk storage facility has resulted in the sale of unmarked fuel as marked fuel, the director may, by written order, prohibit the owner or operator of the truck or facility from using the pump for the sale or delivery of marked fuel until the person satisfies the director that it is not faulty.

S.M. 2010, c. 29, s. 58.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

Investigative warrant

27.1(1)     Subject to subsection (2), a judge may issue a warrant authorizing a tax officer, and any other persons named in the warrant, to use a device or investigative technique or procedure specified in the warrant that, if not authorized, would constitute an unreasonable search.

Conditions for issuing warrant

27.1(2)     Before issuing the warrant, the judge must be satisfied

(a) by information on oath that there are reasonable grounds to believe

(i) that an offence under a tax Act is being, has been or will be committed, and

(ii) that information concerning the offence may be obtained through the use of the device or investigative technique or procedure described by the applicant for the warrant;

(b) that the use of the device or investigative technique or procedure is not otherwise authorized; and

(c) that it is in the best interests of the administration of justice to issue the warrant.

Interpretation

27.1(3)     Without limiting the generality of the expression "device or investigative technique or procedure" in subsections (1) and (2), it includes a tracking device, a number recorder, video surveillance, audio surveillance and covert entry.

Terms and conditions

27.1(4)     When issuing the warrant, the judge may impose any terms and conditions that he or she considers advisable to ensure that the search authorized by the warrant is reasonable.

Notice after covert entry

27.1(5)     If the warrant authorizes a person to enter and search a place covertly, it must specify a period after the execution of the warrant within which notice of the entry and search must be given.

Extension of deadline for notice

27.1(6)     Upon application for an extension of the deadline for providing notice of a covert entry and search, a judge may grant the extension if he or she is satisfied, on the basis of an affidavit in support of the application, that it would be in the interests of justice to grant it.  But the deadline cannot be extended to more than three years after the date of the entry.

S.M. 2009, c. 26, s. 67.

Telewarrant

27.2        If a tax officer believes that it would be impracticable to appear personally before a justice to apply for a warrant under section 24 or 27 or before a judge to apply for a warrant under section 27.1, a warrant may be issued under that section on an information submitted by telephone or other means of telecommunication.  The procedure in section 487.1 of the Criminal Code (Canada) applies to the issuance of the warrant, with such changes to that section and to the form of warrant as are necessary.

S.M. 2009, c. 26, s. 67.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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 The Fuel Tax Act

(a) has imported bulk fuel into Manitoba or acquired bulk fuel otherwise than from a licensed dealer or collector under The 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 The 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.

S.M. 2005, c. 40, s. 85; S.M. 2010, c. 29, Sch. B, s. 39.

Operator to provide proof of identity

31.1        The operator of a vehicle stopped under section 30 or subsection 31(2) must produce for inspection by the tax officer, upon request, his or her driver's licence or any other proof of identity acceptable to the officer.

S.M. 2006, c. 24, s. 79.

Definitions

31.2(1)     The following definitions apply in this section.

"owner", in relation to a vehicle, means the person in whose name the vehicle is registered, as shown on the vehicle's registration card or insurance certificate, and includes the legal owner of the vehicle if

(a) the vehicle is registered in the name of a person who has the use of the vehicle under a lease or other agreement for a term of at least 30 days; and

(b) the name of the legal owner is shown on the vehicle's registration card or insurance certificate. (« propriétaire »)

"registration card" means a registration card as defined in The Drivers and Vehicles Act. (« carte d'immatriculation »)

"vehicle" includes a trailer seized under subsection (3). (« véhicule »)

"workday" means any day that does not fall on a weekend and is not a holiday. (« jour ouvrable »)

Operator to provide information

31.2(2)     If a tax officer finds unmarked tobacco in or on a vehicle or a trailer connected to a vehicle, the operator of the vehicle must produce for inspection by the officer, upon request,

(a) his or her driver's licence or any other proof of identity acceptable to the officer; and

(b) the vehicle's registration card or insurance certificate, or both.

Vehicle carrying unmarked tobacco may be seized and impounded

31.2(3)     A tax officer may seize and impound a vehicle if the officer finds more than five units of unmarked tobacco in or on the vehicle or a trailer connected to the vehicle.  If any of the tobacco is found in or on the trailer, the officer may seize both the trailer and the vehicle.

Delayed seizure and impoundment

31.2(4)     If the tax officer thinks that the immediate seizure of the vehicle would jeopardize the safety of, or cause undue hardship to, any person, the officer may order the operator of the vehicle to drive it to a specified location, where any tax officer may take custody of it.

Procedure on seizure

31.2(5)     When seizing the vehicle, the tax officer must

(a) complete a notice of seizure setting out

(i) the name and address of the operator of the vehicle,

(ii) the name and address of any owner who was not the operator, as shown on the vehicle's registration card or insurance certificate,

(iii) the year, make and vehicle identification number of the vehicle,

(iv) the date and time of the seizure, and

(v) a statement that the vehicle is being seized and impounded under this section, and is subject to impoundment for at least 30 days;

(b) immediately give a copy of the notice to the operator;

(c) unless the director has made other arrangements for the immediate custody of the vehicle, arrange for a garage keeper approved by the director to take custody of it; and

(d) within two workdays after the day the vehicle was seized, give a copy of the notice to the director.

Place of impoundment

31.2(6)     The seized vehicle must be stored at a place of impoundment in Manitoba that is

(a) specified by the director; or

(b) operated by the garage keeper who is given custody of the vehicle.

Period of impoundment

31.2(7)     The seized vehicle must be impounded for a period of

(a) 90 days, if

(i) the operator of the vehicle was the operator or an owner of a vehicle when it was previously seized under this section, or

(ii) an owner of the vehicle was

(A) the operator of a vehicle when it was previously seized under this section, or

(B) an owner of a vehicle while it was previously impounded under this section for at least 30 days; and

(b) 30 days, in any other case.

Personal property in vehicle

31.2(8)     Personal property present in the vehicle when the vehicle is seized may be retrieved by the person entitled to possess the property, unless it is

(a) attached to the vehicle or used in connection with its operation; or

(b) unmarked tobacco.

The request may be made to the tax officer at the time the vehicle is seized, or after that to the garage keeper who has custody of the vehicle during the period of impoundment. The garage keeper may charge a fee for retrieving the property or allowing it to be retrieved.

Notice of seizure and impoundment

31.2(9)     Within two workdays after receiving the notice of seizure from the tax officer, the director must

(a) prepare a notice of seizure and impoundment that sets out

(i) a description of the seized vehicle including, where applicable, the year and make of the vehicle and its vehicle identification number,

(ii) the name and address of the operator from whom the vehicle was seized,

(iii) the name and address of any owner who was not the operator, as shown on the vehicle's registration card or insurance certificate,

(iv) the name and address of the garage keeper who has custody of the vehicle, and the place of impoundment,

(v) the period of impoundment determined under subsection (7),

(vi) a description of the right to apply for the release of the vehicle and the application process, and

(vii) a description of the right to retrieve personal property from the vehicle; and

(b) serve a copy of the notice on

(i) the operator from whom the vehicle was seized,

(ii) any owner of the vehicle who was not the operator of it, and

(iii) the garage keeper who has custody of the vehicle.

Application for release to owner

31.2(10)    During the period of impoundment, an owner of the vehicle may apply to a justice for an order to release it. The application must be

(a) made in a form and manner acceptable to the Minister of Justice; and

(b) accompanied by a payment of $100 as an application fee.

Director to be served

31.2(11)    The applicant under subsection (10) must serve a copy of the application on the director.

Hearing by justice

31.2(12)    At the hearing of an application made under subsection (10), the justice must consider

(a) documentary evidence of ownership of the vehicle;

(b) a report of a tax officer respecting the seizure of the vehicle; and

(c) if the director determined that the period of impoundment is 90 days, a report of the director setting out the information on the basis of which that determination was made.

Order for release to owner

31.2(13)    The justice must order the release of the vehicle, subject to the payment of any lien under this section, if he or she is satisfied

(a) that the applicant is an owner of the vehicle who, immediately before the vehicle was seized,

(i) was not the operator of the vehicle and did not otherwise have care or control of the vehicle, and

(ii) did not know, and could not reasonably be expected to have known, that the vehicle was carrying unmarked tobacco; or

(b) in the case of an application during a 90-day period of impoundment, that the period of impoundment should be 30 days, in which case the order does not take effect until the end of the 30-day period.

Garage keeper's lien

31.2(14)    The garage keeper in whose custody the vehicle is impounded has a lien against the vehicle for the following amounts, and may enforce the lien in accordance with The Garage Keepers Act:

(a) the garage keeper's costs and charges, as prescribed under The Highway Traffic Act in relation to a seizure and impoundment under section 242.1 of that Act;

(b) expenditures for searches, registrations and other charges under The Personal Property Security Act that are reasonably incurred by the garage keeper to comply with The Garage Keepers Act.

Effect of lien

31.2(15)    Despite the expiry of the impoundment period and any order under subsection (13) for the release of the vehicle, the vehicle must remain impounded until the amount of the lien is paid or the vehicle is disposed of in accordance with The Garage Keepers Act or this section.

Disposal of impounded vehicle by garage keeper

31.2(16)    After the end of the period of impoundment, the garage keeper may, with the director's approval, dispose of the vehicle by sale or otherwise after delivering to the director

(a) the number plates from the vehicle;

(b) a statutory declaration of the garage keeper declaring that the amount of his or her lien on the vehicle exceeds his or her estimate of its value; and

(c) a certificate issued under The Personal Property Security Act showing that the vehicle is not identified as an item of collateral in the Personal Property Registry.

Transfer to garage keeper

31.2(17)    To facilitate a disposal approved under subsection (16), the director must

(a) complete a transfer of vehicle ownership, in a form approved by the minister, from the owner of the vehicle to the garage keeper; and

(b) deliver the completed form and the vehicle's number plates, to the registrar under The Drivers and Vehicles Act.

Cancellation of previous owner's registration

31.2(18)    Upon receiving the form and the number plates from the director, the registrar must cancel the vehicle's registration and forward any refund to the director.  The director must apply the refund to any costs and charges owing to the Minister of Finance in respect of the vehicle, and pay the balance, if any, to the vehicle's previous owner.

Owner's right against operator

31.2(19)    An owner of the vehicle may recover, from the person who was its operator when it was seized, the direct costs incurred by the owner in relation to the seizure and impoundment.

Minister's response to wrongful seizure

31.2(20)    If the minister is satisfied that the vehicle was wrongfully seized and impounded under this section, the minister may

(a) if the vehicle remains impounded, pay the amount required to discharge the garage keeper's lien and direct the vehicle to be released from impoundment; or

(b) if the vehicle is no longer impounded, despite The Financial Administration Act, indemnify an owner of the vehicle for any direct cost paid by the owner in relation to the seizure and impoundment.

S.M. 2009, c. 26, s. 68.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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,

(i.1) second, to pay a penalty equal to three times the tax that would be payable on a purchase of the bulk fuel by a purchaser,

(ii) third, 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 a penalty equal to three times the tax that would be payable on a purchase of the bulk fuel by a purchaser,

(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 The 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.

S.M. 2005, c. 40, s. 85; S.M. 2010, c. 29, Sch. B, s. 39; S.M. 2011, c. 41, s. 52.

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.

S.M. 2005, c. 40, s. 85.

Release of seized tobacco

36(1)       Up to five 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.

Exception — more than five units seized

36(1.1)     If more than five units of unmarked tobacco are seized from a person, none of the tobacco shall be released to the person.

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.

S.M. 2005, c. 40, s. 85; S.M. 2006, c. 24, s. 80; S.M. 2009, c. 26, s. 69.

Damage to seized or impounded property

36.1        If a person's property is damaged, destroyed or stolen when it is seized or while it is impounded under this Act, the person has no claim or right of action against the government except for any loss to the person arising out of the negligence of the government or its agents or employees.

S.M. 2009, c. 26, s. 70.

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.

S.M. 2005, c. 40, s. 85.

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 subsection 17(2) 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.

S.M. 2005, c. 40, s. 85; S.M. 2012, c. 1, s. 76.

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 impose a penalty not greater than 50% of the tax that was not paid or remitted when it was due.  

Fee for dishonoured cheque

39(3)       The director may charge a fee of $25 for a cheque or other negotiable instrument that is dishonoured.

Failure to comply with director's order

39(4)       If a person fails to comply with an order under

(a) subsection 10(3.1) (stop order);

(b) clause 15(1)(a) or (b) (information returns and reports);

(c) clause 15(1)(e) (trust accounts);

(d) subsection 21(1) (order to produce records, etc.); or

(e) section 25.1 (faulty dye injector pump);

the director may, by assessment under section 46, impose a penalty of not more than $200. for each day that the failure continues.

Penalty in addition to other fine or penalty

39(5)       Each fee or penalty under this section is in addition to any other fee, fine or penalty that may be imposed under this Act.

S.M. 2005, c. 40, s. 85; S.M. 2007, c. 6, s. 83; S.M. 2008, c. 3, s. 75; S.M. 2010, c. 29, s. 59; S.M. 2012, c. 1, s. 77.

Penalty — missing tobacco mark or stamp

39.1(1)     Every person who is issued or acquires a mark or stamp to be applied to a tobacco product or its packaging and cannot account for the mark or stamp as being in his or her possession is liable, upon assessment by the director, to a penalty unless

(a) the person satisfies the director that the mark or stamp was affixed to a tobacco product or its packaging as prescribed under The Tobacco Tax Act and that an amount has been remitted on account of tax under that Act on that product; or

(b) in the case of a mark or stamp that was cancelled, the person satisfies the director that it was returned or destroyed as instructed by the director.

Amount of penalty

39.1(2)     The amount of the penalty for any mark or stamp not accounted for is equal to the tax that would be imposed on the type and quantity of tobacco product to which, or to the packaging of which, the mark or stamp was designed to have been applied.

S.M. 2011, c. 41, s. 53; S.M. 2012, c. 1, s. 78.

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) a penalty or fee imposed under section 39; 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.

S.M. 2005, c. 40, s. 85; S.M. 2007, c. 6, s. 84.

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.

S.M. 2005, c. 40, s. 85.

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 39(2) (failure to pay or remit tax) or (4) (failure to comply with director's order) or subsection 39.1(1) (missing tobacco marks or stamps);

(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.

S.M. 2005, c. 40, s. 85; S.M. 2008, c. 3, s. 76; S.M. 2011, c. 41, s. 54.

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.

S.M. 2005, c. 40, s. 85.

Non-director functioning as corporate director

43.1(1)     If the director has reason to believe that a person performed some or all of the functions of a director of a corporation, the director may, by written notice, request the person and the corporation to provide the records and information required by the director to confirm or rebut that belief.

Decision of director

43.1(2)     Subject to subsection (3), the director may decide that a person performed some or all of the functions of a director of a corporation if

(a) the person or the corporation that has been requested to provide records or information to the director under subsection (1) fails or refuses to comply with the request within 30 days after being served with the request; or

(b) the records or information provided to the director under this section confirm that the person performed some or all of the functions of a director of the corporation.

Restrictions on director's decision

43.1(3)     A decision under clause (2)(b) that a person performed some or all of the functions of a director of the corporation must not be based solely on

(a) the person's participating in the corporation's management under the direction or control of a shareholder, one or more directors or a senior officer of the corporation;

(b) the person's being a lawyer, accountant or other professional whose primary participation in the management of the corporation was the provision of professional services to the corporation;

(c) the corporation's being bankrupt and the person being a trustee in bankruptcy who participates in the management of the corporation or exercises control over its property, rights and interests primarily for the purposes of the administration of the bankrupt's estate; or

(d) the person's being a receiver, receiver manager or secured creditor who participates in the management of the corporation or exercises control over any of its property, rights and interests primarily for the purposes of enforcing a debt obligation of the corporation.

Deemed director

43.1(4)     If the director decides under subsection (2) that a person performed some or all of the functions of a director of a corporation, the person is deemed to be a director of the corporation for the purposes of this Part for the period during which he or she performed those functions.

Notice of decision

43.1(5)     Immediately after making a decision under subsection (2), the director must serve a written notice of the decision on the corporation and the person to whom the decision relates.

S.M. 2006, c. 24, s. 81.

Liability of transferee after non-arm's length transfer

44(1)       If a person transfers money or other property directly or indirectly, by means of a trust or by any other means, to or for the benefit of another person

(a) with whom the transferor, 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), unless the transferor establishes that he or she was not a tax debtor at the time of the transfer and did not make the transfer in anticipation of becoming liable for another person's existing tax debt.

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 any tax debt of the transferor assessed after the time of the transfer in respect of a tax liability that arose before 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,

(i) from the date of the transfer to the date of payment, or

(ii) if the transferor's debt arose only upon an assessment under section 46 that was made after the date of the transfer, from the date of the assessment 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.

S.M. 2005, c. 40, s. 85; S.M. 2011, c. 41, s. 55.

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 »)

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, including any amount assessed on or after that date in respect of transactions that occurred before that date, 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.

Tax debt discovered after certificate is issued

45(8)       If after issuing a certificate to a seller under subsection (4) the director discovers, based on new information, a tax debt that was owing by the seller when the certificate was issued, the debt may be enforced against the seller but not against the purchaser who obtained a copy of the certificate.

S.M. 2005, c. 40, s. 85; S.M. 2006, c. 24, s. 82; S.M. 2007, c. 6, s. 85; S.M. 2011, c. 41, s. 56.

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 39(4) (failure to comply with director's order);

(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, an amount may be added to a taxpayer's tax debt without the amount being assessed under this section unless the provision under which it is charged or imposed only allows it to be charged or imposed by an assessment under this section.

Determination of taxable amount

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

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

(i) less than the fair market value of the property, service or insurance, 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, rental fee or premium 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.

S.M. 2005, c. 40, s. 85; S.M. 2007, c. 6, s. 86; S.M. 2008, c. 3, s. 77; S.M. 2012, c. 1, s. 79; S.M. 2014, c. 35, s. 66.

Correction of minor deficiency

46.1(1)     The director may at any time issue a revised notice of assessment or reassessment to correct an irregularity, omission or technical error that does not affect the amount assessed or reassessed.

No effect on right of appeal

46.1(2)     The revised notice of assessment or reassessment

(a) does not constitute a new assessment or reassessment; and

(b) does not entitle the taxpayer to any additional time to appeal the original assessment or reassessment unless the taxpayer establishes that, because of the deficiency, he or she did not receive the original notice of assessment or reassessment.

S.M. 2009, c. 26, s. 71.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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 files with the director, within two years after the day the amount was paid, a signed application that includes

(i) the reasons for the refund request,

(ii) evidence sufficient to satisfy the director that the person is entitled to the refund, and

(iii) if another person acting on behalf of the person entitled to the refund makes the application, a written authorization signed by the person entitled to the refund.

(c) [repealed] S.M. 2012, c. 1, s. 80.

Refund of overpayment by collector

53(2)       Subject to the provisions of a tax Act, a collector or deputy collector is entitled to a refund, without interest, of an amount remitted by him or her to the minister as or on account of 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 files with the director, within two years after the day the amount was remitted, a signed application that includes

(i) the reasons for the refund request,

(ii) evidence sufficient to satisfy the director that the collector or deputy collector is entitled to the refund, and

(iii) if another person acting on behalf of the collector or deputy collector makes the application, a written authorization signed by the collector or deputy collector.

(c) [repealed] S.M. 2012, c. 1, s. 80.

Limitation

53(3)       Subsections (1) and (2) do not apply to amounts paid or remitted as tax under The Retail Sales Tax Act.

When amount is paid, remitted or received

53(3.1)     For the purpose of clauses (1)(b) and (2)(b) and any other provision of a tax Act that specifies the time within which an application for a refund of an amount paid or remitted as or on account of tax must be made, an amount paid or remitted by negotiable instrument — other than an instrument that is not honoured — is deemed to have been paid, remitted or received on the day the instrument is received.

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.

Director may apply refund to taxes, interest and penalties owing

53(6)       If a person is entitled to a refund under this section or under any provision of a tax Act, the director may apply all or any part of the refundable amount to

(a) the payment of a tax debt owing by the person; or

(b) the payment of any tax, interest or penalties payable by the person under a tax law of Canada.

Notice of application of refund

53(7)       When applying an amount under subsection (6) to the payment of another amount owing by the person entitled to a refund, the director must give the person a written notice setting out

(a) the amount so applied;

(b) the debt to which it was applied; and

(c) the date on which it was so applied.

S.M. 2005, c. 40, s. 85; S.M. 2006, c. 24, s. 83; S.M. 2010, c. 29, s. 60; S.M. 2011, c. 41, s. 57; S.M. 2012, c. 1, s. 80; S.M. 2014, c. 35, s. 67.

BAD DEBTS

Definitions

53.1(1)     The following definitions apply in this section.

"applicable tax Act" means the tax Act under which an amount was remitted by a collector on account of tax in relation to a sale or lease by the collector. (« loi fiscale applicable »)

"bad debt" means an amount that

(a) is owing to a collector as proceeds of a sale or lease by the collector to a person with whom the collector would be considered, in relation to that sale or lease, to be dealing at arm's length for the purposes of the Income Tax Act (Canada); and

(b) the collector has written off, in accordance with generally accepted accounting principles, as a bad debt in his or her books of account. (« créance irrécouvrable »)

"buyer" includes a person whose risk is covered by an insurance policy. (« acheteur »)

"collector" includes a deputy collector. (« collecteur »)

"proceeds", in relation to a sale or lease by a collector, means the total of

(a) the consideration paid or payable by the buyer or lessee to the collector;

(b) the amount paid or remitted by the collector on account of tax under the applicable tax Act in respect of the sale or lease; and

(c) all levies, duties and taxes — other than taxes under the tax Acts — imposed by any level of government and paid or payable by the buyer to the collector in respect of the sale or lease.

It does not include interest or costs incurred to collect the proceeds. (« produit »)

"sale" includes the provision of insurance. (« vente »)

Deduction for tax remitted in respect of bad debt

53.1(2)     Subject to subsections (4) and (7), after an amount owing to a collector becomes a bad debt, the collector may deduct from the tax that he or she is otherwise required to remit under the applicable tax Act the amount determined by the following formula:

D = (T × B/P) − A

In this formula,

D

is the amount deductible by the collector;

T

is the amount remitted on account of tax under the applicable tax Act by the collector in respect of the sale or lease to which the bad debt relates;

B

is the amount of the bad debt;

P

is the total proceeds of the sale or lease to which the bad debt relates;

A

is the total of all amounts previously deducted or refunded under this section or under the applicable tax Act in respect of the bad debt.

Refund of tax remitted in respect of bad debt

53.1(3)     The minister may, on application by a collector entitled to deduct an amount under subsection (2), refund all or any part of the amount to the collector.

Time limit for deduction or application for refund

53.1(4)     A deduction under subsection (2) or an application for a refund under subsection (3) in respect of a bad debt cannot be made more than two years after the day the amount became a bad debt.

Recovery of bad debt

53.1(5)     If at any time all or part of a bad debt owing to a collector is recovered, the collector must report and remit to the minister on account of tax under the applicable tax Act, on or before the 20th day of the month after the month in which the recovery is made, the amount determined by the following formula:

R = A × B/C

In this formula,

R

is the amount to be remitted;

A

is the total of all amounts previously deducted or refunded under this section or the applicable tax Act in respect of the bad debt;

B

is the amount of the bad debt that was recovered at that time;

C

is the amount of the bad debt that was owing before the recovery.

Order of payment

53.1(6)     For the purpose of subsection (5), any amount recovered by a collector in relation to a bad debt — even if it is recovered as interest or as a late payment fee, a charge for debt collection or any other fee or charge — must be applied first as a payment on account of the bad debt.

Transitional

53.1(7)     If an amount owing to a collector became a bad debt before April 4, 2007, no amount is deductible under subsection (2) in respect of that debt unless it would have been deductible under the applicable tax Act before that date.

S.M. 2007, c. 6, s. 87; S.M. 2012, c. 1, s. 81.

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).

S.M. 2005, c. 40, s. 85.

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).

S.M. 2005, c. 40, s. 85.

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 include a copy 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.

Limitation on appeal of reassessment

56(3)       If a matter or period that is the subject of a reassessment is also the subject of an earlier assessment or reassessment for which the 90-day appeal period has expired, any appeal of the later reassessment must be limited to the difference between

(a) the amount assessed or reassessed in respect of that matter or period in the earlier notice of assessment or reassessment; and

(b) the amount subsequently reassessed in respect of that matter or period.

S.M. 2005, c. 40, s. 85; S.M. 2008, c. 3, s. 78; S.M. 2009, c. 26, s. 72.

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.

S.M. 2005, c. 40, s. 85.

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;

(b) a decision of the Tax Appeals Commission under section 57.

S.M. 2005, c. 40, s. 85; S.M. 2012, c. 1, s. 82.

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)       The appellant must serve a copy of the application on the other party to the appeal within 14 days after the application is filed with the court.

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.

S.M. 2005, c. 40, s. 85; S.M. 2014, c. 35, s. 68.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

Tax debt recoverable by civil action

62          A tax debt is recoverable by a civil action for debt in a court of competent jurisdiction.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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;

(b.1) the name of the tax Act under which the tax debt arose;

(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)       Once the certificate has been registered in the land titles office, the director may take sale proceedings on the lien as if the lien were a judgment registered under The Judgments Act.

Lien remains in effect

65(3.1)     The lien remains in effect until the director discharges it.

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.

S.M. 2005, c. 40, s. 85; S.M. 2006, c. 24, s. 84; S.M. 2012, c. 1, s. 83; S.M. 2013, c. 55, s. 53.

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.

S.M. 2005, c. 40, s. 85.

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)       Subject to subsection (4), 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.

Duration of warrant

67(4)       Despite section 2.1 of The Executions Act, a tax debt warrant continues in full force and effect, with respect to property seized within two years after it is issued, until all actions to be taken under it have been taken or until it is withdrawn by the director, whichever is earlier.

S.M. 2005, c. 40, s. 85; S.M. 2015, c. 40, s. 46.

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).

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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;

(d) fails to return a tax authorization as required by subsection 11(1);

(e) uses or attempts to use a tax authorization that has expired or been cancelled or suspended for any purpose for which it could be used if it were still valid; or

(f) not being the holder of a valid tax authorization, does anything to lead or attempt to lead another person to believe that he or she holds a valid tax authorization.

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) subsection 10(1.1.1) (apply for tax authorization) or (3.1) (stop order);

(b) section 15 (reporting and remittance requirements);

(c) subsection 17(4) (recordkeeping requirements);

(d) 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;

and, if the information to be provided or the reports or information returns to be filed disclose an amount of tax that has not been paid or remitted as required, to pay or remit that amount and any penalties and interest that the person failed to pay or remit.

Additional order to comply with agreement

75(5.1)     A justice who finds a person guilty of an offence under clause (2)(c) (failure to comply with agreement) 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;

and, if the person failed to pay or remit any tax as required by the agreement, to pay or remit that amount and any penalties and interest that the person failed to pay or remit.

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.

S.M. 2005, c. 40, s. 85; S.M. 2009, c. 26, s. 73; S.M. 2010, c. 29, s. 61; S.M. 2012, c. 1, s. 84; S.M. 2015, c. 40, s. 47.

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;

(c) conspires with any person to commit an offence under clause (a) or (b); or

(d) possesses, uses, sells or offers to sell software described in section 18.1.

Offence — refusal to pay or remit

76(3)       A person who refuses or wilfully neglects to pay or remit tax when it is 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.

S.M. 2005, c. 40, s. 85; S.M. 2007, c. 6, s. 88; S.M. 2010, c. 29, s. 62.

Offences — fuel

77(1)       A person is guilty of an offence who

(a) sells fuel exempt from tax under The 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 The 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 The Fuel Tax Act that applied to the purchase;

(d) tampers with marked fuel;

(e) marks fuel contrary to The Fuel Tax Act or the regulations under that Act;

(e.1) sells unmarked fuel as marked fuel;

(e.2) fails to comply with an order of the director made under section 25.1 (faulty dye injector pump); or

(f) [repealed] S.M. 2006, c. 24, s. 85;

(g) blends fuel with any petroleum product that is not subject to tax under The Fuel Tax Act on resale, and sells the resulting produce as fuel contrary to that Act.

(h) [repealed] S.M. 2010, c. 29, Sch. B, s. 39.

Offences — carrier licences

77(2)       A person is guilty of an offence who

(a) contrary to The 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 that Act;

(a.1) contrary to The Fuel Tax Act, fails, as the owner of a vehicle being operated under a carrier licence,

(i) to ensure that a copy of the licence is carried by the operator in the cab of the vehicle, or

(ii) to ensure that carrier decals are affixed to the cab of the vehicle in accordance with the regulations under that Act; or

(b) fails to return carrier decals when required to do so by subsection 11(2).

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).

S.M. 2005, c. 40, s. 85; S.M. 2006, c. 24, s. 85; S.M. 2007, c. 6, s. 89; S.M. 2007, c. 17, s. 7; S.M. 2008, c. 3, s. 79; S.M. 2010, c. 29, s. 63 and Sch. B, s. 39; S.M. 2011, c. 41, s. 58.

"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.

78(5)       [Repealed] S.M. 2009, c. 26, s. 74.

S.M. 2005, c. 40, s. 85; S.M. 2009, c. 26, s. 74.

Offences — bulk fuel

79(1)       A person is guilty of an offence who, contrary to The Fuel Tax Act,

(a) imports bulk fuel into Manitoba or acquires bulk fuel otherwise than from a licensed dealer or collector under that 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 that 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., and

(ii) for a second or subsequent offence, a fine of at least $1,000. and not more than $50,000.;

(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.

79(3)       [Repealed] S.M. 2011, c. 41, s. 59.

S.M. 2005, c. 40, s. 85; S.M. 2010, c. 29, Sch. B, s. 39; S.M. 2011, c. 41, s. 59.

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 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;

(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; or

(d) acquires a mark or stamp described in clause (b) from a person who does not hold a tax authorization to produce or manufacture it.

Offences — possession, purchase or sale of tobacco

80(2)       A person is guilty of an offence who

(a) is in possession of more than four units of unmarked tobacco contrary to section 3.1 or 3.3 of The Tobacco Tax Act;

(a.1) is in possession of fewer than five units of unmarked tobacco contrary to section 3.1 or 3.3 of The Tobacco Tax Act;

(b) [repealed] S.M. 2006, c. 24, s. 87;

(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 unmarked tobacco contrary to subsection 3.2(1) of The Tobacco Tax Act;

(d.1) sells cigarettes individually or in packages of fewer than 20 cigarettes contrary to subsection 3.2(2) of The Tobacco Tax Act;

(e) [repealed] S.M. 2006, c. 24, s. 87;

(f) is in possession of tobacco contrary to section 3.7 or subsection 4(1) or (2) of The Tobacco Tax Act;

(g) sells tobacco contrary to subsection 4(1), (2), (4) or (5) of The Tobacco Tax Act; or

(h) purchases or offers to purchase tobacco contrary to subsection 4(4.1) of The Tobacco Tax Act.

Interpretation

80(2.1)     In clauses (2)(d), (d.1) and (g), "sells" includes offers for sale, exposes for sale and distributes, whether or not the distribution is made for consideration.

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 individual who is guilty of an offence under clause (2)(a.1) or (d.1),

(i) for a first offence, a fine of at least $1,000 and not more than $10,000,

(ii) for a second offence, a fine of at least $10,000 and not more than $50,000, and

(iii) for a third or subsequent offence, a fine of at least $50,000 and not more than $100,000;

(a.1) in the case of an individual who is guilty of any other offence under this section,

(i) for a first offence, a fine of at least $1,000 and not more than $10,000, imprisonment for up to six months, or both,

(ii) for a second offence, a fine of at least $10,000 and not more than $50,000, imprisonment for up to one year, or both, and

(iii) for a third or subsequent offence, a fine of at least $50,000 and not more than $100,000, imprisonment for up to two years, or both;

(b) in the case of a corporation,

(i) for a first offence, a fine of at least $2,000 and not more than $20,000,

(ii) for a second offence, a fine of at least $20,000 and not more than $100,000, and

(iii) for a third or subsequent offence, a fine of at least $100,000 and not more than $250,000.

Additional fine

80(5)       If a person is found guilty of an offence under this section, other than an offence under clause (2)(a.1) or (d.1), 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) in the case of a first offence, three times the tax that would be payable under The Tobacco Tax Act on a purchase of that quantity of tobacco by a purchaser;

(b) in the case of a second offence, four times the tax that would be payable under The Tobacco Tax Act on a purchase of that quantity of tobacco by a purchaser; or

(c) in the case of a third or subsequent offence, five times 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.

80(7)       [Repealed] S.M. 2006, c. 24, s. 87.

S.M. 2005, c. 40, s. 85; S.M. 2006, c. 24, s. 87; S.M. 2007, c. 6, s. 90; S.M. 2008, c. 3, s. 80; S.M. 2009, c. 26, s. 75; S.M. 2010, c. 29, s. 64; S.M. 2011, c. 41, s. 60; S.M. 2012, c. 1, s. 86; S.M. 2012, c. 19, s. 7.

Definitions

80.1(1)     In this section, "owner", "vehicle" and "workday" have the same meaning as in section 31.2.

Vehicle liable to forfeiture

80.1(2)     A vehicle that was seized under section 31.2 is liable to be forfeited to the government if

(a) a person is charged with an offence under subsection 80(2) in relation to possession of the unmarked tobacco the presence of which resulted in the vehicle being seized; and

(b) the person (referred to in this section as the "alleged offender") has at least two prior convictions under subsection 80(2) that arise from separate incidents and involve the possession, sale or offer for sale of unmarked tobacco.

Director to register financing statement

80.1(3)     If the director believes on reasonable grounds that a vehicle is liable to forfeiture under this section, the director must register a financing statement in the Personal Property Registry, in the form and manner prescribed under The Personal Property Security Act, stating that the vehicle is liable to forfeiture.

Notice of liability to forfeiture

80.1(4)     Within two workdays after registering the financing statement, the director must prepare a notice of the vehicle's liability to forfeiture and of the registration of the financing statement, and must serve a copy of the notice on

(a) the alleged offender;

(b) each owner of the vehicle who is not the alleged offender; and

(c) each person who holds a security interest in the vehicle that was registered under The Personal Property Security Act before the director registered the financing statement.

Lack of notice does not affect forfeiture

80.1(5)     The vehicle's liability to forfeiture is not affected by a failure to serve the notice under subsection (4) on the alleged offender.

Restrictions affecting owner

80.1(6)     An owner of the vehicle must not dispose of it, or grant a security interest in it,

(a) after the vehicle is seized under section 31.2, if the owner is the alleged offender; or

(b) after being served with a copy of the notice of the liability to forfeiture, if the owner is not the alleged offender.

Additional restrictions

80.1(7)     After the financing statement is registered in respect of the vehicle, no person shall do anything, alone or in concert with any other person,

(a) to prevent the vehicle from being forfeited; or

(b) to reduce the value of the vehicle more than it would be reduced in the normal course of being operated.

Insurance proceeds

80.1(8)     If insurance proceeds are payable to any person in respect of damage to the vehicle that occurred after the financing statement was registered, the insurer must pay the proceeds as follows:

(a) to the repairer for repairing the damage to the vehicle; or

(b) to the Minister of Finance, if the vehicle is written off or the proceeds will not be used to pay a repairer for repairing the damage to the vehicle.

Insurance proceeds paid to Minister of Finance

80.1(9)     The Minister of Finance must hold the insurance proceeds paid under clause (8)(b) in trust while the vehicle remains liable to forfeiture, and

(a) if the vehicle is forfeited, must

(i) pay the proceeds, in order of priority, to secured creditors whose security interests were registered before the financing statement was registered under subsection (3), and

(ii) transfer the balance to the general account of the Consolidated Fund; and

(b) if the vehicle is no longer liable to forfeiture, must pay the proceeds

(i) to the vehicle's owner, or

(ii) into the Court of Queen's Bench, if there is a dispute as to who is entitled to them.

Owner may apply for release of vehicle

80.1(10)    An owner of the vehicle may apply to a justice for an order releasing the vehicle from its liability to forfeiture. The application must be

(a) made in a form and manner acceptable to the Minister of Justice; and

(b) accompanied by payment of $100 as an application fee.

Director to be served

80.1(11)    The applicant under subsection (10) must serve a copy of the application on the director.

Justice may consider any relevant evidence

80.1(12)    The justice hearing the application may consider any evidence or information that he or she considers relevant.

Order for release from liability to forfeiture

80.1(13)    The justice hearing the application may order the vehicle to be released from liability to forfeiture if he or she is satisfied that the applicant is an owner of the vehicle who, immediately before the vehicle was seized under section 31.2,

(a) was not the operator of the vehicle and did not otherwise have care or control of the vehicle; and

(b) did not know, and could not reasonably be expected to have known, that the vehicle was carrying unmarked tobacco.

Owner's right against alleged offender

80.1(14)    The owner making an application under subsection (10) may recover, from the alleged offender, the direct costs incurred by the owner in relation to the application.

Vehicle no longer liable to forfeiture

80.1(15)    The vehicle ceases to be liable to forfeiture, and the director must register a discharge of the financing statement registered under subsection (3) in respect of the vehicle, if

(a) a justice has ordered the vehicle to be released from liability to forfeiture;

(b) the charge referred to in clause (2)(a) is stayed; or

(c) the alleged offender is acquitted of the charge referred to in clause (2)(a) and

(i) the Crown does not appeal the acquittal within the applicable appeal period,

(ii) the Crown abandons its appeal of the acquittal, or

(iii) the final court of appeal upholds the acquittal or dismisses the Crown's application for leave to appeal.

Timing of forfeiture

80.1(16)    A vehicle that is liable to forfeiture is forfeited, subject to any security interest that was registered before the financing statement was registered under subsection (3), when the following conditions are satisfied:

(a) the charge referred to in clause (2)(a) has resulted in a conviction, and the conviction is final;

(b) at least two of the prior convictions referred to in clause (2)(b) are final.

Notice of forfeiture

80.1(17)    When the vehicle is forfeited, the director must serve a notice of the forfeiture on each of its owners.

Content of notice

80.1(18)    The notice of forfeiture must direct the owner to relinquish the vehicle at a place specified in the notice and to do so on or before the date specified in the notice, which must not be earlier than seven days after the notice is sent.

Owner must relinquish vehicle

80.1(19)    The owner must relinquish the vehicle as directed by the notice of forfeiture.

Seizure of vehicle

80.1(20)    If the owner fails to relinquish the vehicle as directed,

(a) a person authorized by the director may

(i) without notice or legal process, take possession of the vehicle from any person on behalf of the Crown, and

(ii) for this purpose, enter upon any land where the vehicle is located, and do any thing he or she considers necessary to take possession of it; and

(b) the cost of the seizure is a debt due to the government by the owner, and may be recovered as a tax debt under this Act.

Owner liable for value of vehicle

80.1(21)    If the owner fails to relinquish the vehicle as directed and it has not been seized under subsection (20), an amount equal to the average wholesale price of such a vehicle as at the date that the vehicle became liable to forfeiture, as determined by the director in a manner authorized by the minister, is a debt due to the government by the owner, and may be recovered as a tax debt under this Act.

Owner liable for reduction in value and appraisal cost

80.1(22)    If the value of the vehicle has been reduced as a result of anything done in contravention of subsection (7), an amount equal to the total of

(a) the reduction in value; and

(b) the director's cost of any appraisal report obtained under subsection (24);

is a debt due to the government by the owner, and may be recovered as a tax debt under this Act.

Exception

80.1(23)    Subsection (22) does not apply to a reduction in value that is attributable to damage in respect of which insurance proceeds are paid in accordance with subsection (8).

Determination of reduction in value

80.1(24)    For the purpose of subsection (22), the reduction in value of the vehicle as a result of anything done in contravention of subsection (7) is the amount by which

(a) the average wholesale price of such a vehicle at the time of the forfeiture, as determined by the director in a manner authorized by the minister;

exceeds

(b) the appraised value of the vehicle at the time of the forfeiture, as set out in a motor vehicle appraisal report in approved form and certified by

(i) a motor vehicle dealer with an RST number and a valid dealer permit issued under section 96 of The Drivers and Vehicles Act, or

(ii) an employee of an appraisal firm who is qualified to appraise motor vehicles.

S.M. 2009, c. 26, s. 76.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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)(d) (false or misleading statement);

(b) clause 75(1)(e) (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.

S.M. 2005, c. 40, s. 85; S.M. 2015, c. 40, s. 48.

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.

S.M. 2005, c. 40, s. 85.

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;

(c.1) respecting tax authorizations, including regulations

(i) respecting applications for tax authorizations,

(ii) establishing terms, conditions or restrictions applicable to tax authorizations or holders of tax authorizations, or

(iii) prescribing information to be included in tax authorizations,

any or all of which may be different for different types of tax authorizations;

(d) prescribing records to be maintained by taxpayers and holders of tax authorizations, and prescribing how they are to be maintained;

(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.

S.M. 2005, c. 40, s. 85; S.M. 2007, c. 6, s. 91; S.M. 2009, c. 26, s. 77.

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 »)

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

Interest

89          Interest may be charged under this Part in respect of a period before the effective date.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

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.

S.M. 2005, c. 40, s. 85.

DIVISION 9

ADMINISTRATION AND ENFORCEMENT OF BAND TAXES

Definitions

95.1(1)     The following definitions apply in this section.

"band" and "reserve" have the same meaning as in the Indian Act (Canada). (« bande » et « réserve »)

"band law" means a band council by-law that

(a) was made under the authority of the First Nations Goods and Services Tax Act (Canada); and

(b) imposes a tax on a purchase of goods or services on a reserve that, in the opinion of the minister, is the same as or substantially similar to a tax imposed under a tax Act. (« texte législatif de bande »)

"tax administration agreement" means an agreement between a band council and the government respecting the administration and enforcement of a band law and the collection of tax under that law. (« accord d'administration fiscale »)

Minister may enter into tax administration agreement

95.1(2)     The minister may enter into a tax administration agreement with a band council if the minister is satisfied that

(a) the agreement authorizes the director, as agent for the band, to collect the tax imposed by a band law; and

(b) the band law applies the provisions of Divisions 1 to 7 to the administration and enforcement of the band law, with such changes as are necessary or acceptable to the minister.

Agreement may provide for commission or fee

95.1(3)     A tax administration agreement may provide for a commission, fee or charge to be paid to the government for the tax administration and enforcement services it provides under the agreement.

Band tax to be paid into Consolidated Fund

95.1(4)     Despite The Financial Administration Act, amounts collected by the director as or on account of a tax imposed by a band law must be paid into the Consolidated Fund.

Payments to band

95.1(5)     The amounts payable to a band under a tax administration agreement may be paid out of the Consolidated Fund without any legislative authority other than this section.

Exemption to prevent double taxation

95.1(6)     While a tax administration agreement is in effect in relation to a band law, an amount that would, but for this subsection, be payable or deemed to have been collected as or on account of tax under a tax Act is deemed not to be payable and not to have been collected under that Act to the extent that it is payable or is deemed to have been collected, as the case may be, as or on account of the tax imposed by the band law.

Confidentiality of information

95.1(7)     Subject to subsection (8), section 6 applies, with necessary changes,

(a) to a person employed in the administration or enforcement of a band law under a tax administration agreement; and

(b) to any information obtained under a tax administration agreement or under the band law.

Disclosure of information with band council

95.1(8)     Information referred to in clause (7)(b) may be disclosed to the band council in accordance with the tax administration agreement entered into with the band council.

S.M. 2006, c. 24, s. 88.

PART I.1

TAX ON ELECTRICITY AND CERTAIN OTHER PRODUCTS

NOTE:

Former Part I (sections 1 to 24) was amended and renumbered as Part I.1 (sections 96 to 110) by S.M. 2005, c. 40, Part 12.  See the Table of Concordance at the end of this Act.

96 to 110   [Repealed]

S.M. 2005, c. 40, s. 86 to 90, 92 to 95, 97, 99 and 101; S.M. 2006, c. 24, s. 89 to 91; S.M. 2007, c. 6, s. 92 to 94.

PART II

SCHOOL TAX REDUCTION

[Repealed]

S.M. 2005, c. 40, s. 102.

PART III

LAND TRANSFER TAX

Definitions

111(1)      In this Part,

"collector" means

(a) a service provider authorized to collect fees under The Real Property Act, or

(b) if there is no service provider authorized to collect fees under The Real Property Act, the district registrar of a land titles district and the registrar of a registration district; (« percepteur »)

"common-law partner" of a person means another person who, not being married to the person, is cohabiting with him or her in a conjugal relationship and

(a) has so cohabited with the person for a continuous period of at least one year,

(b) is the parent of a child of the person, or

(c) with the other person, registered their common-law relationship under section 13.1 of The Vital Statistics Act,

and, for the purpose of clause (a), persons who have been cohabiting with each other in a conjugal relationship are deemed to continue to cohabit in that relationship throughout any period of separation unless it is a period of at least 90 days throughout which they were not cohabiting because of a breakdown of their conjugal relationship; (« conjoint de fait »)

"FMV" and "fair market value" mean fair market value, at the time a transfer is tendered for registration, of the land as a whole with respect to which the transfer is tendered for registration; (« JVM » et « juste valeur marchande »)

"former common-law partner" of a person means another person who was a common-law partner of the person after this definition came into force and is no longer a common-law partner of the person; (« ex-conjoint de fait »)

"fractional interest in land" means a legal interest, an equitable interest or a beneficial interest in land that is a part, share, portion or fraction of a whole legal, equitable or beneficial interest in the land; (« intérêt fractionné dans un bien-fonds »)

"land as a whole" means, in relation to a transfer, the entire piece or parcel of land to which the transfer relates, including all buildings or improvements situated on the piece or parcel of land and does not include a fractional interest in land; (« bien-fonds global »)

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

"non-commercial property" means property that

(a) is owned by a person, alone or together with his or her spouse or common-law partner and is used by them primarily as their family residence or for their recreational purposes, or

(b) is owned by a person, alone or together with his or her former spouse or common-law partner, and was used by them, while they were spouses or common-law partners of each other, primarily as their family residence or for their recreational purposes; (« bien non commercial »)

"regulations" means regulations made under this Part; (« règlements »)

"tax" means the tax imposed under this Part; (« taxe »)

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

"transfer" includes a direction in a Real Property Application, deed, grant from the Crown or other instrument, whereby any land is granted, assigned, conveyed, or otherwise transferred but does not include a transmission, request, mortgage or caveat. (« transfert »)

Farm Lands Ownership definitions

111(2)      In this Part, "family farm corporation", "farm land", "farmer" and "farming", have the same meaning as in the Farm Lands Ownership Act.

Real Property Act definitions

111(3)      Subject to subsections (1) and (2), the definitions in The Real Property Act apply to the interpretation of this Part.

S.M. 2005, c. 40, s. 103; S.M. 2011, c. 41, s. 61; S.M. 2013, c. 11, s. 79; S.M. 2013, c. 55, s. 54.

Imposition of tax

112(1)      Subject to subsections (2) and (3) and sections 112.1 to 114, every person who tenders for registration a transfer shall, at the time of tendering the transfer, pay to the collector a tax calculated to the nearest dollar in accordance with the following formula:

FORMULA

Tax =

0.005 × (FMV − $30,000.) +

0.005 × (FMV − $90,000.) +

0.005 × (FMV − $150,000.) +

0.005 × (FMV − $200,000.)

Calculation of nil value

112(2)      For purposes of subsection (1), where a calculation results in a negative value, the calculation is deemed to result in a nil value.

Transfer of fractional interests

112(3)      Where a fractional interest in land is transferred, the transferee shall pay tax under this Part in an amount that bears the same proportion to the tax payable upon a transfer of the land as a whole, calculated in accordance with the formula in subsection (1), as the fractional interest in the land bears to a whole interest in the land.

Transfer registered in more than one office

112(4)      Where a single transfer is registered in more than one land titles office or more than one registry office or in a land titles office and a registry office, the tax is payable once only in respect of the transfer, and is payable upon the first registration thereof.

Refund on rejection

112(5)      Where documents tendered for registration are rejected or withdrawn, the collector shall refund the tax paid under subsection (1).

S.M. 2005, c. 40, s. 104; S.M. 2013, c. 55, s. 55.

Refund on rescission

112.1(1)    If a court of competent jurisdiction issues an order rescinding an agreement under which a transfer has been registered and requiring the transfer of the land back to the transferor

(a) the tax paid in respect of the initial transfer is refundable by the minister; and

(b) no tax is payable in respect of the transfer of the land back to the transferor.

Refund on Registrar-General's order

112.1(2)    If the Registrar-General issues an order under section 169.2 of The Real Property Act that cancels a transfer, the tax paid in respect of the transfer is refundable by the minister.

Conditions of agreement not met

112.1(3)    If the parties to an agreement under which a transfer has been registered declare in writing that the land must be transferred back to the transferor because the conditions of the agreement cannot be met, the minister may

(a) refund the tax paid in respect of the initial transfer; and

(b) waive the tax payable in respect of the transfer of the land back to the transferor.

S.M. 2013, c. 55, s. 56.

Refund of land transfer tax if RST also paid

112.2       A purchaser of land who pays a tax under The Retail Sales Tax Act on a building or improvement situated on the land is entitled to a refund of the amount, if any, by which

(a) the tax paid under this Part on the transfer of the land to the purchaser;

exceeds

(b) the tax that would have been payable under this Part on the transfer if, for the purpose of the formula in subsection 112(1), FMV were the amount by which the fair market value of the land as a whole exceeds the fair value of the building or improvement on which tax under The Retail Sales Tax Act was paid.

S.M. 2013, c. 55, s. 56.

Application for refund or waiver

112.3(1)    To claim a refund or a waiver under this Part, a person must file an application with the minister in a form approved by the minister.

Notice

112.3(2)    The minister must notify the applicant by mail of the minister's decision respecting the application and must include, if applicable, a notice of assessment.

Appeal

112.3(3)    An applicant who disagrees with the decision of the minister may, within 30 days of the date the decision is made or such further period as the court may allow, appeal the decision to the Court of Queen's Bench.

S.M. 2013, c. 55, s. 56.

Farm land exemption

113(1)      No tax is payable under this Part on a transfer of farm land where

(a) the farm land will continue to be used for farming; and

(b) the transferee is

(i) a farmer,

(ii) a spouse or common-law partner of a farmer,

(iii) a farmer and his or her spouse or common-law partner,

(iv) a family farm corporation, or

(v) a congregation within the meaning of section 143 of the Income Tax Act (Canada).

Other exemptions

113(2)      No tax is payable under this Part in respect of a transfer where

(a) the transferor is the Director under the Veterans' Land Act (Canada), and the transferee is a veteran or the spouse or common-law partner of a veteran;

(a.1) the transferor is a registered charity as defined in subsection 248(1) of the Income Tax Act (Canada) and the transferee is a non-profit corporation that, at the time that the transfer is submitted for registration, is controlled by the transferor;

(b) the transferee is a registered charity as defined in subsection 248(1) of the Income Tax Act (Canada); or

(c) in the distribution of the property of a corporation upon dissolution or winding up, the transferee is a corporation which immediately prior to the dissolution or winding up of another corporation held all of the issued shares of that other corporation.

Transfer for benefit of Indian band

113(3)      No tax is payable under this Part in respect of a transfer of land where

(a) the transferee acquires the land, for the use and benefit of a band (as defined in the Indian Act (Canada)), pursuant to or as contemplated by an agreement made between the band and the Government of Canada in settlement of a treaty land entitlement of the band; and

(b) an agreement made between the Government of Manitoba and the Government of Canada to enable the Government of Canada to fulfill its treaty obligations to the band provides that no tax shall be payable under this Part in respect of an acquisition described in clause (a).

Affidavit

113(4)      A transferee who claims an exemption under this section shall verify the claim by filing with the collector an affidavit in a form satisfactory to the collector.

S.M. 2005, c. 40, s. 105; S.M. 2010, c. 29, s. 65; S.M. 2012, c. 1, s. 87.

Other exemptions

114(1)      No tax is payable under this Part in respect of the registration of

(a) a transfer where the transferor and the transferee are the same person and the sole purpose of the transfer is

(i) to give effect to a change of name, or

(ii) to change the form of tenure from tenancy in common to joint tenancy or to fractional interests or from joint tenancy to tenancy in common or to fractional interests;

(b) a petroleum or gas lease under the old system or an assignment thereof;

(b.1) an instrument that creates, but does not assign or transfer, a statutory easement under section 111.1 or 111.2 of The Real Property Act;

(c) a transfer for the purpose of facilitating a scheme of subdivision where the transfer is from the registered owners to a trustee, or from a trustee back to the registered owners, and the owners' proportion of beneficial ownership in the land is unchanged after each transfer;

(d) a transfer made to correct an error in a previous transfer where the collector is satisfied that the full tax payable under section 112 was paid on the previous transfer; or

(e) a transfer of non-commercial property by a person or the executor or administrator of a person's estate to the person's spouse or common-law partner or former spouse or common-law partner.

Evidence of eligibility for exemption

114(2)      A transferee who claims an exemption under clause (1)(e) shall verify the claim by filing with the collector a statutory declaration in a form satisfactory to the collector.

S.M. 2005, c. 40, s. 106; S.M. 2013, c. 55, s. 57.

Affidavit of value

115(1)      There shall be filed with each transfer tendered for registration an affidavit setting out the fair market value of the land as a whole with respect to which the transfer is tendered for registration.

By whom affidavit made

115(2)      The affidavit of value required under subsection (1) may be made by the transferor, the transferee, a person acting for either of them under a power of attorney, an agent accredited in writing by the transferor or the transferee, a solicitor for either the transferor or the transferee, or some other person approved by the minister.

Certificate of value

115(3)      If a district registrar is not satisfied that the fair market value set out in an affidavit under this section is correct, the district registrar may require the person tendering the transfer to produce an appraisal or any other evidence.

S.M. 2005, c. 40, s. 107; S.M. 2011, c. 35, s. 49; S.M. 2013, c. 11, s. 79.

Protest of payment of tax

116(1)      Where the right of the collector to require payment of tax is disputed by a person tendering a transfer for registration, the person shall pay the tax as provided in this Part, and shall file, without fee, with the collector at the time of payment, a notice of protest.

Protest referred to minister

116(2)      Where a person tendering a transfer for registration files a protest under subsection (1), the collector shall forthwith send the notice to the minister.

Contents

116(3)      The notice of protest shall contain the reasons for the protest and shall state all relevant facts, including an estimate of the fair market value of the land as a whole with respect to which the transfer is tendered for registration where the person protesting considers that estimate to be relevant to the objection.

Minister's determination

116(4)      On receipt of the notice of protest and all relevant information, the minister shall determine the amount of tax owing.

Notice

116(5)      The minister shall notify by mail the person who made the protest of the minister's decision and shall include, if applicable, a notice of assessment.

Appeal

116(6)      Where the person who paid the tax disagrees with the decision of the minister under subsection (4), that person may, within 30 days of the date the decision is made or such further period as the court may allow, appeal the decision to the Court of Queen's Bench.

S.M. 2005, c. 40, s. 107.

Assessment

117(1)      The minister may, on information available to him or her,

(a) determine the fair market value of the land as a whole with respect to which a transfer is tendered for registration and the correct amount of tax payable;

(b) determine whether tax is payable in respect of a transaction and, if so, the correct amount of tax payable; and

(c) if he or she is satisfied that section 119.1 (general anti-avoidance rule) applies to a transaction or series of transactions, determine the correct amount of tax payable in respect of the transaction or series of transactions in accordance with that section.

Notice to transferee

117(2)      Where the minister determines that the correct amount of tax has not been paid, the minister shall make an assessment and mail a notice of assessment to the transferee.

Contents of notice

117(3)      The notice of assessment shall contain the determination made by the minister under subsection (1), the total amount of tax payable, the amount of tax paid, the balance owing or overpaid and the date of the notice of assessment.

Payment

117(4)      The transferee shall pay to the minister the amount of tax owing as set out in the notice of assessment within 30 days after the date shown on the notice of assessment whether or not an objection to the assessment is made.

Limitation

117(5)      Except as provided in this Part, the minister shall issue the notice of assessment within two years after the later of

(a) the date that the transfer was registered in the land titles office, or

(b) the tax became payable.

Formal errors

117(6)      An assessment, subject to being varied or vacated on objection or by reassessment, is valid and binding, notwithstanding any error, defect, omission or error in procedure.

Interest on tax owing

117(7)      The tax owing under a notice of assessment bears interest, beginning the 30th day after the assessment date shown on the notice, as prescribed under The Financial Administration Act.  The interest is payable to the minister for the use of the Crown.

S.M. 2005, c. 40, s. 107; S.M. 2013, c. 55, s. 58.

Notice of objection

118(1)      A person who objects to an assessment made under section 117 shall mail a notice of objection to the minister within 90 days after the date shown on the notice of assessment.

Contents

118(2)      The notice of objection shall contain the reasons for the objection and shall state all relevant facts, including an estimate of the fair market value of the land as a whole with respect to which the transfer is tendered for registration where the person objecting considers that estimate to be relevant to the objection.

Minister's determination

118(3)      On receipt of the notice of objection and all relevant information, the minister shall determine the amount of tax owing.

Notice

118(4)      The minister shall notify by mail the person who made the objection of the minister's decision and shall include, if applicable, a notice of assessment.

Extension of time

118(5)      The time within which a notice of objection is to be mailed may be extended by the minister if application for extension is made in respect of a notice of objection under subsection (1) before the expiry of the time allowed under subsection (1) for mailing of the notice of objection, and the application contains the reason for the extension and specifies the period of time applied for.

Appeal

118(6)      Where the person who paid the tax disagrees with the decision of the minister under subsection (3), that person may, within 30 days of the date the decision is made or such further period as the court may allow, appeal the decision to the Court of Queen's Bench.

S.M. 2005, c. 40, s. 107; S.M. 2007, c. 6, s. 95.

Failure to pay tax

119(1)      A person who fails to pay the tax imposed by this Part commits an offence.

False affidavits, etc

119(2)      A person commits an offence who

(a) has made a false or deceptive statement in an affidavit required to be made under this Part;

(b) in order to evade payment of tax, has destroyed, altered, mutilated, secreted or otherwise disposed of a record of a transferor or transferee;

(c) has, in a record of a transferor or transferee, made a false or deceptive entry or omitted or assented to or acquiesced in the omission to enter a material particular; or

(d) [repealed] S.M. 1990-91, c. 12, s. 17;

(e) has wilfully, in any manner, evaded or attempted to evade compliance with this Act or the regulations or remittance or payment of taxes required by this Act or the regulations.

Persons acquiescing

119(3)      A person who participates in, assents to or acquiesces in any of the acts referred to in subsection (2) commits an offence.

Corporate officers

119(4)      Where a corporation commits an offence under this section, every director, officer, employee or agent of the corporation who authorized, permitted or acquiesced in the offence commits an offence.

Fine on corporation

119(5)      A corporation convicted of an offence under subsection (1), (2) or (3) is liable to a fine equal to

(a) the amount of tax not paid or remitted, with interest, plus

(b) an amount not less than $5,000. and not more than $50,000.

Fine on individual

119(6)      An individual convicted of an offence under subsection (1), (2), (3) or (4) is liable to

(a) a fine equal to

(i) the amount of tax not paid or remitted, with interest, plus

(ii) an amount not less than $1,000. and not more than $25,000.;

(b) imprisonment for not more than two years; or

(c) both fine and imprisonment.

Minister's certificate

119(7)      In a prosecution under this section, the certificate signed by the minister or the authorized person stating the amount of tax and interest is evidence of the amount of tax and interest referred to in subsection (5) or (6).

No action

119(8)      No action taken under this section shall suspend or affect any remedy for the recovery of any tax or amount payable under this Act.

S.M. 2005, c. 40, s. 108.

Definitions

119.1(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 this Part or an abuse having regard to the provisions of this Part read as a whole. (« opération d'évitement »)

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

General anti-avoidance rule

119.1(2)    The minister may, by assessment under section 117, 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

119.1(3)    Within 180 days after an assessment in respect of a transaction or series of transactions is mailed to a person, any other person involved in the same transaction or series may, by written notice to the minister, request the minister to adjust, under subsection (2), tax consequences to the person of that transaction or series.

Minister's response

119.1(4)    On receipt of the request, the minister must consider the request and determine the tax consequences under subsection (2) to the person who made the request.

Determining tax consequences

119.1(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 minister may do one or more of the following:

(a) determine or redetermine the fair market value of land as a whole;

(b) allow or disallow an exemption in relation to a transfer;

(c) recharacterize the nature of a transaction or series of transactions;

(d) ignore the tax effects that would otherwise result under this Part.

S.M. 2013, c. 55, s. 59.

Advance ruling

119.2(1)    The minister may, upon written application, make an advance ruling regarding the application of section 119.1 in respect of a proposed transaction or series of transactions.

Fees re advance ruling

119.2(2)    A person who applies for an advance ruling regarding the application of section 119.1 must pay the following fees to the Minister of Finance:

(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.

S.M. 2013, c. 55, s. 59.

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.

S.M. 2005, c. 40, s. 109.

Property of collector deemed to be held in trust

120.1(1)    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 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

120.1(2)    Money held in trust under subsection (1), 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.

S.M. 2013, c. 11, s. 79.

Fraud

121         Notwithstanding any other provision of this Part, the minister may, where there has been fraud or misrepresentation, assess tax payable and prosecute for an offence at any time within two years of becoming aware of the fraud or misrepresentation.

S.M. 2005, c. 40, s. 110.

PART IV

ENVIRONMENTAL PROTECTION TAX

Definitions

122         In this Part,

"beer" means beer as defined in The Liquor and Gaming Control Act; (« bière »)

"collector" means a person appointed as a collector under subsection 124(1), but does not include a deputy collector; (« collecteur »)

"dealer" means any person who in the province sells liquor or offers or keeps liquor for sale by retail; (« marchand »)

"deposit" means an amount of money that is paid to a dealer by a purchaser as security for the return of the container in which the liquor is sold and that is refundable to the purchaser upon surrender of the container to the dealer or an authorized agent; (« dépôt »)

"deputy collector" means a person duly appointed by a collector under subsection 124(2), or deemed to have been appointed by a collector under subsection 124(3); (« collecteur adjoint »)

"liquor" means liquor as defined in The Liquor and Gaming Control Act; (« boisson alcoolisée »)

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

"tax" means the tax imposed under section 123. (« taxe »)

S.M. 2005, c. 40, s. 111; S.M. 2013, c. 51, Sch. B, s. 203.

Environmental protection tax

123(1)      Every purchaser of liquor in its original bottle, original can or other original container shall, where no deposit is payable at the time of purchase in respect of such container, pay to Her Majesty in right of Manitoba for the public use of the government a tax, in recognition of the cost of protecting the environment against damage or deterioration caused by the disposal of bottles, cans and other containers in which liquor is sold,

(a) with respect to

(i) liquor sold in cans, at the rate of 10¢ for each can, and

(ii) with respect to liquor, other than beer, sold in containers, other than cans, with a content capacity of less than 750 millilitres, at the rate of 5¢ for each container;

(b) with respect to

(i) beer sold in containers, other than cans, and

(ii) liquor, other than beer, sold in containers, other than cans, with a content capacity of 750 millilitres or more,

at the rate of 10¢ for each container.

Exception

123(2)      Subsection (1) does not apply to a person who acquires liquor in its original closed bottle, original closed can or other original closed container for resale in that container whether that container is open or closed at the time of resale.

S.M. 2005, c. 40, s. 112.

Collectors

124(1)      The minister may appoint any person to be a collector of the tax payable under this Part and may enter into agreements with collectors with respect to the collection of the tax.

Deputy collectors

124(2)      A collector may, with the approval of the minister, appoint deputy collectors and shall forthwith notify the minister in writing of the name and address of any person so appointed.

Dealers deemed to be deputy collectors

124(3)      Except where the dealer is a collector appointed under subsection (1), every dealer to whom liquor is sold or delivered by a collector is deemed to have been appointed a deputy collector by the collector who makes the sale or delivery, and shall carry out and perform the duties imposed on a deputy collector under this Part.

Duty of collectors

124(4)      Every collector shall collect the tax, or cause it to be collected, from each purchaser who purchases liquor in respect of which the tax is payable from the collector or from a dealer who is a deputy collector appointed or deemed to have been appointed by the collector.

Duty of deputy collectors

124(5)      Every dealer who is also a deputy collector, from whom liquor is purchased in respect of which the tax is payable, shall collect the tax from the purchaser thereof.

Remission of proceeds

124(6)      A deputy collector who collects the tax from a purchaser as provided in subsection (5) shall, in the manner and at the times agreed by the collector and the deputy collector, remit to that collector the moneys collected as proceeds of the tax.

Remission of tax by collectors

124(7)      Every collector shall remit to the minister all moneys received by the collector under this section from purchasers or through deputy collectors as proceeds of the tax, and the remittance shall be accompanied by a return of information required by the minister.

Agents of Crown

124(8)      Every collector and every deputy collector is an agent of Her Majesty for the purposes of the collection of the tax and the remission of the moneys collected as proceeds of the tax.

Revenue officers

124(9)      Every collector and every deputy collector is, for the purposes of collecting and remitting the tax but not otherwise, a revenue officer within the meaning of The Financial Administration Act, and is subject to the duties and liabilities of a revenue officer under that Act.

S.M. 2005, c. 40, s. 112.

Regulations

125         The Lieutenant Governor in Council may make regulations respecting any matter considered necessary or advisable by the Lieutenant Governor in Council to carry out effectively the intent and purpose of this Part.

S.M. 2005, c. 40, s. 112.

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.

S.M. 2005, c. 40, s. 112.

TABLE OF CONCORDANCE

Provisions repealed or renumbered by S.M. 2005, c. 40, Part 12.  An asterisk (*) indicates that the provision was also amended.

Former Section New Section
1

R.S.M. 1987 Supp., c. 32, Pt. III, s. 1; S.M. 1988-89, c. 11, s. 23; S.M. 1988-89, c. 19, s. 54; S.M. 1993, c. 46, s. 83; S.M. 1998, c. 30, s. 64; S.M. 2000, c. 39, s. 94.

96 *
2-3

R.S.M. 1987 Supp., c. 32, Pt. III, s. 2 and 3; S.M. 1994, c. 23, s. 36 and 37; S.M. 2000, c. 39, s. 95; S.M. 2002, c. 19, s. 63.

97-99 *
3.1(1)-(2) 100(1)-(2)
3.1(3) 100(3) *
3.1(4)-(5) repealed
3.1(7)-(8)

S.M. 1994, c. 23, s. 38; S.M. 2004, c. 43, s. 103.

100(4)-(6) *
4

S.M. 2003, c. 4, s. 103.

101 *
5 102
5.1

S.M. 1992, c. 52, s. 71; S.M. 2003, c. 4, s. 104.

repealed
6(1)-(2) 103(1)-(2) *
6(4)-(6) repealed
6(7) 103(3)-(4) *
6(8)-(13)

S.M. 1995, c. 30, s. 27; S.M. 2000, c. 39, s. 96; S.M. 2002, c. 19, s. 64; S.M. 2003, c. 4, s. 105; S.M. 2004, c. 43, s. 104.

repealed
7(1)-(2) 104(1)-(2)
7(3)-(5) repealed
8

S.M. 2004, c. 43, s. 105.

repealed
9 105
9.1

S.M. 1995, c. 30, s. 28.

106 *
10

S.M. 2003, c. 4, s. 106.

repealed
11 107 *

12 to 22.1

R.S.M. 1987 Corr.; R.S.M. 1987 Supp., c. 28, s. 11; S.M. 1992, c. 52, s. 72; S.M. 1993, c. 46, s. 84; S.M. 1998, c. 30, s. 65 to 68; S.M. 2002, c. 19, s. 65 and 66; S.M. 2003, c. 4, s. 107 and 108; S.M. 2004, c. 43, s. 106 and 107.

repealed
23 108 *
23.1-23.2

S.M. 1998, c. 30, s. 69; S.M. 2004, c. 43, s. 108.

repealed
24

S.M. 1992, c. 52, s. 73; S.M. 1995, c. 30, s. 29; S.M. 2003, c. 4, s. 109; S.M. 2004, c. 43, s. 109.

109-110 *
Part II (sections 25-32)

S.M. 2003, c. 4, s. 110 and 111; S.M. 2004, c. 43, s. 110.

repealed
33

R.S.M. 1987 Supp., c. 32, Pt. III, s. 4; S.M. 1989-90, c. 15, s. 68; S.M. 1993, c. 48, s. 98; S.M. 1996, c. 64, s. 15; S.M. 2002, c. 19, s. 67; S.M. 2004, c. 42, s. 81.

111
34

R.S.M. 1987 Supp., c. 32, Pt. III, s. 4; S.M. 1989-90, c. 15, s. 69; S.M. 2004, c. 43, s. 111.

112 *
35

R.S.M. 1987 Supp., c. 32, Pt. III, s. 4; S.M. 1988-89, c. 19, s. 55 and 56; S.M. 1995, c. 30, s. 30 and 31; S.M. 2002, c. 19, s. 68.

113
36

R.S.M. 1987 Supp., c. 32, Pt. III, s. 4; S.M. 2002, c. 19, s. 69.

114 *
37-40

R.S.M. 1987 Supp., c. 32, Pt. III, s. 4; S.M. 1989-90, c. 15, s. 70 to 73; S.M. 2002, c. 19, s. 70.

115-118
41

S.M. 1988-89, c. 19, s. 57.

repealed
42

R.S.M. 1987 Supp., c. 32, Pt. III, s. 4; S.M. 1990-91, c. 12, s. 17.

119
43

R.S.M. 1987 Supp., c. 32, Pt. III, s. 4.

120 *
44

R.S.M. 1987 Supp., c. 32, Pt. III, s. 4.

121
45

S.M. 1989-90, c. 15, s. 74.

122 *
46-48

S.M. 1989-90, c. 15, s. 74; S.M. 1991-92, c. 31, s. 33; S.M. 2003, c. 4, s. 112; S.M. 2004, c. 43, s. 112.

123-125
126