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This version was current from October 9, 2008 to June 15, 2011.

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C.C.S.M. c. H24

The Health and Post Secondary Education Tax Levy Act

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

Definitions

1           In this Act,

"business" means an undertaking or activity of any kind whatsoever whether or not it is carried on for gain or profit and, without limiting the generality of the foregoing, includes the carrying on of government or of government function; (« entreprise »)

"corporate partner" means a corporation that is a partner in a partnership; (« corporation membre »)

"director" means the Deputy Minister of Finance or any Assistant Deputy Minister of Finance; (« directeur »)

"employee" means any individual employed by an employer, including an officer of an employer, receiving remuneration in respect of the performance of the duties of the employment or the office; (« employé »)

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

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

(b) the government,

(c) the Government of Canada, and

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

"local government body" means

(a) a municipality,

(b) a board of trustees of a school division or school district,

(c) a local government district,

(d) a council of a community under The Northern Affairs Act, or

(e) any unincorporated board, commission or body created by a municipality for the purposes of carrying out any of the duties or functions of a municipality on behalf of the municipality; (« administration locale »)

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)

"permanent establishment" includes any fixed place of business and, without limiting the generality of the foregoing, includes a branch, a mine, an oil well, a gas well, a farm, timberland, a factory, a workshop, a warehouse, an office and an agency; (« établissement permanent »)

"remuneration" includes

(a) any payment, benefit or allowance the amount or value of which is required by subsection 5(1) or section 6 or 7 of the Income Tax Act (Canada) to be included, as income from an office or employment, in computing the income of a person, and

(b) the amount paid or value of anything contributed by an employer to a plan or trust for the benefit of one or more employees of the employer unless, upon the payment, provision or allocation of an amount or benefit under the plan or trust to or for the benefit of an employee, no amount would be required by subsection 5(1) or section 6 or 7 of the Income Tax Act (Canada) to be included, as income from an office or employment, in computing the income of the employee,

but does not include

(c) a pension, annuity or superannuation benefit paid to a former employee after his or her retirement, or

(d) the amount or value of a payment or benefit received by an employee from or under a plan or trust referred to in clause (b), if the amount or value of the employer's contributions to the plan or trust has been included as remuneration; (« rémunération »)

"return" means the employer tax return under this Act; (« déclaration »)

"subsidiary controlled corporation" means a corporation more than 50% of the issued shared capital of which, having full voting rights under all circumstances, is owned directly or indirectly by the corporation to which it is subsidiary; (« filiale »)

"tax" means the tax imposed under this Act; (« impôt »)

"year" means a calendar year. (« année »)

S.M. 1992, c. 52, s. 15; S.M. 1993, c. 46, s. 18; S.M. 2004, c. 43, s. 32; S.M. 2005, c. 40, s. 17; S.M. 2006, c. 34, s. 259; S.M. 2007, c. 6, s. 18; S.M. 2008, c. 42, s. 43.

1.1(1)      Repealed, S.M. 2005, c. 40, s. 18.

Meaning of "associated"

1.1(2)      For the purposes of this Act, a corporation is "associated" with another corporation at a particular time if the two corporations are associated with each other at the particular time within the meaning of section 256 of the Income Tax Act (Canada).

Meaning of "related"

1.1(3)      For the purposes of this Act, a person is "related" to another person at a particular time if the two persons are related to each other at the particular time within the meaning of section 251 of the Income Tax Act (Canada).

S.M. 1993, c. 46, s. 19; S.M. 2005, c. 40, s. 18.

Administration and enforcement

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

S.M. 2005, c. 40, s. 19.

Subsidiary's place of business

2(1)        For the purposes of this Act, the fact that a person has a subsidiary controlled corporation in a place or a subsidiary controlled corporation engaged in business in a place shall not of itself be deemed to mean that the person is operating a permanent establishment in that place.

Where a person has permanent establishments

2(2)        For the purposes of this Act, and without restricting the generality of the definition of "permanent establishment",

(a) a corporation has a permanent establishment in the place designated in its charter or by-laws as being its head office;

(b) where an employer carries on business through an employee, or through an agent who has general authority to contract for the employer, or who has a stock of merchandise owned by the employer from which he fills orders which he receives, the employee or agent shall be deemed to operate a permanent establishment of the employer for and on behalf of the employer;

(c) where a corporation, otherwise having a permanent establishment in Canada, owns or leases land or premises in a province, the land or premises is a permanent establishment;

(d) the use by an employer of substantial machinery or equipment in a particular place at any time in a month constitutes a permanent establishment of the employer in that place for that month;

(e) an insurance corporation has a permanent establishment in each jurisdiction in which the corporation is registered or licensed to do business;

(f) where a corporation which did not otherwise carry on business in Canada in a year, produced, grew, mined, created, manufactured, fabricated, improved, packed, preserved, processed or constructed, in whole or in part, anything in Canada, whether or not the corporation exported that thing without selling it prior to exportation, the corporation shall be deemed to maintain a permanent establishment at any place where the corporation did any of those things in the fiscal year; and

(g) where an employer has no fixed place of business, he has a permanent establishment in the principal place in which the employer conducted business and in each place from which the employer carried on or transacted any substantial portion of his business.

Associated corporations

2(3)        Where two or more corporations are associated with each other at any time in a year after 1992, the corporations shall be deemed to be a single employer in respect of all of the employees in the year of the corporations and shall calculate the tax payable and the exemption or notch reduction authorized under section 3 for the year as though they were a single employer, and the amount of the tax payable and exemption or notch reduction authorized shall be shared among them.

Corporate partnerships

2(4)        Where, after 1992, in a partnership that includes one or more corporations as partners

(a) a corporate partner, either alone or together with every other corporation with which it is associated, is at any time in a year entitled to share more than 50% of the profits or obligated to share more than 50% of the losses of the partnership, the combination of

(i) the partnership,

(ii) the corporate partner,

(iii) each corporation that is at any time in the year associated with the corporate partner, and

(iv) each other partnership in which the corporate partner, either alone or together with every other corporation with which it is associated, is at any time in the year entitled to share more than 50% of the profits or obligated to share more than 50% of the losses of such other partnership,

shall be deemed to be a single employer in respect of all of the employees in the year of the corporations and partnerships described in subclauses (i) through (iv) and the corporations and partnerships shall calculate the tax payable and the exemption or notch reduction authorized under section 3 for the year as though they were a single employer, and the amount of the tax payable and exemption or notch reduction authorized shall be shared among them; or

(b) one or more corporate partners is included in a group of related persons and that related group is at any time in a year entitled in the aggregate to share more than 50% of the profits or obligated in the aggregate to share more than 50% of the losses of the partnership, the combination of

(i) the partnership,

(ii) each corporate partner in the related group which, either alone or together with every other corporation in the related group with which it is associated, is at any time in the year entitled to share 25% or more of the profits or obligated to share 25% or more of the losses of the partnership,

(iii) each corporation that is at any time in the year associated with a corporate partner described in subclause (ii), and

(iv) each other partnership in which a corporate partner described in subclause (ii) is included in a group of related persons and that related group is at any time in the year entitled in the aggregate to share more than 50% of the profits or obligated in the aggregate to share more than 50% of the losses of such other partnership, and that corporate partner described in subclause (ii), either alone or together with every other corporation with which it is associated, is at any time in the year entitled to share 25% or more of the profits or obligated to share 25% or more of the losses of such other partnership,

shall be deemed to be a single employer in respect of all of the employees in the year of the corporations and partnerships described in subclauses (i) through (iv) and the corporations and partnerships shall calculate the tax payable and the exemption or notch reduction authorized under section 3 for the year as though they were a single employer, and the amount of the tax payable and exemption or notch reduction authorized shall be shared among them.

Two or more partnerships

2(4.1)      Where, after 1992, there are two or more partnerships in respect of which the same group of persons is in respect of each partnership at any time in a year entitled in the aggregate to share more than 50% of the profits or obligated in the aggregate to share more than 50% of the losses of the partnership, and that group of persons includes a corporation which, either alone or together with every other corporation with which it is associated and which is included in the same group of persons, is at any time in the year entitled to share 25% or more of the profits or obligated to share 25% or more of the losses of the partnership, the partnerships shall be deemed to be a single employer in respect of all of the employees in the year of the partnerships and shall calculate the tax payable and the exemption or notch reduction authorized under section 3 for the year as though they were a single employer, and the amount of the tax payable and exemption or notch reduction authorized shall be shared among them.

2(5)        Repealed, S.M. 1993, c. 46, s. 20.

2(5.1)      Repealed, S.M. 2002, c. 19, s. 9.

Director may allocate exemption or notch reduction

2(5.2)      If an employer fails to file a report as required by the minister under subsection 5(2.6) or files a report allocating the exemption or notch reduction in a manner that is not reasonable having regard to the remuneration paid, the director may allocate the exemption or notch reduction as the director considers reasonable having regard to the remuneration paid.

Allocation of profits or losses

2(5.3)      For the purposes of subsections (4) and (4.1), where two or more partners of a partnership agree to share in the profits or losses of the partnership or any other amount in respect of any activity of the partnership that is relevant to the computation of the share of the profits or losses of the partners, and the share of any such partner of the profits or losses or other amount is not reasonable in the circumstances having regard to the capital invested in or work performed for the partnership by the partners or such other factors as may be relevant, the director may, notwithstanding any agreement, deem that share to be the amount that is reasonable in the circumstances.

2(6)        Repealed, S.M. 2007, c. 6, s. 19.

2(7)        Repealed, S.M. 1993, c. 46, s. 20.

Relief for corporate partnerships

2(8)        Subsections (4) and (4.1) are not applicable in respect of a partnership in circumstances as may be prescribed by regulation.

S.M. 1991-92, c. 31, s. 11; S.M. 1992, c. 52, s. 16; S.M. 1993, c. 46, s. 20; S.M. 1998, c. 30, s. 21; S.M. 2002, c. 19, s. 9; S.M. 2005, c. 40, s. 20; S.M. 2007, c. 6, s. 19.

3(1) to (3.1)Repealed, S.M. 2004, c. 43, s. 33.

Imposition of tax after 1998

3(3.1.1)    Subject as hereinafter provided, every employer shall pay to the government at the time and in the manner provided in this Act and the regulations, for every month ending in a year after 1998, a tax equal to 2.15% of the remuneration paid in that month

(a) to or on behalf of each of the employer's employees who reports for work at a permanent establishment of the employer in Manitoba; and

(b) to or on behalf of each of the employer's employees who is not required to report for work at any permanent establishment of the employer but whose remuneration is paid from or through a permanent establishment of the employer in Manitoba.

3(3.2) to (3.9) Repealed, S.M. 2004, c. 43, s. 33.

Proration of tax exemption and notch provision

3(3.10)     Subject to subsection (3.10.1), where in a year a corporation that is an employer and was not previously associated with any other corporation (the "corporation not previously associated") in that year becomes associated with one or more corporations not associated with each other or becomes associated with a group of associated corporations,

(a) notwithstanding subsection 2(3) and subsection (3.12), no tax is payable by the corporation not previously associated in respect of remuneration paid to its employees in the portion of that year (the "pre-association period") preceding the date when the corporation became associated (the "date of association"), if the total remuneration paid in the pre-association period does not exceed the prorated amount of tax exemption determined in accordance with the following formula:

A = $1,250,000. × B/C

where

A

is the prorated amount of tax exemption;

B

is the total number of days in the pre-association period;

C

is the total number of days in that year;

(b) notwithstanding subsection (3.12), in the case of a group of corporations that were associated with each other for the entire pre-association period, the total amount of tax exemption to be shared under subsection 2(3) by the group in relation to the pre-association period shall be equal to the prorated amount of tax exemption determined under clause (a);

(c) notwithstanding subsection (3.12), the total amount of tax exemption to be shared under subsection 2(3) by all the corporations that are associated in the remainder of the year commencing on the date of association shall be the difference between $1,250,000. and the prorated amount of tax exemption determined under clause (a);

(d) notwithstanding subsection (3.14), where, in clause (a), the total remuneration paid by the corporation not previously associated to its employees in the pre-association period is more than the prorated amount of tax exemption and not more than twice that amount, the tax payable under subsection (3.1.1) by the corporation not previously associated for the pre-association period is 4.3% of the amount of remuneration paid in the pre-association period that is more than the prorated amount of tax exemption but not more than twice that amount;

(e) notwithstanding subsection (3.14), where, relative to clause (b), the total remuneration paid by the group of corporations that were associated with each other for the entire pre-association period to employees in the pre-association period is more than the prorated amount of tax exemption determined in clause (a) and not more than twice that amount, the tax payable under subsection (3.1.1) by the group of associated corporations for the pre-association period is 4.3% of the amount of remuneration paid in the pre-association period that is more than the prorated amount of tax exemption but not more than twice that amount; and

(f) notwithstanding subsection (3.14), where, relative to clause (c), the total remuneration paid by all the corporations that are associated in the remainder of the year commencing on the date of association to their employees is more than the difference between $1,250,000. and the prorated amount of tax exemption determined in clause (a) and not more than twice that difference, the tax payable under subsection (3.1.1) for the remainder of the year by all the corporations is 4.3% of the amount of remuneration paid in the remainder of the year that is more than the difference but not more than twice the difference.

Transitional

3(3.10.1)   When applying subsection (3.10) to a year before 2008, the references in that subsection to "$1,250,000." shall be read as "$1,000,000.".

Corporations associated at different times

3(3.11)     Subsection (3.10) does not apply in any year in which more than one corporation becomes associated as a part of a group of associated corporations, and they commence to be associated at different times in the year.

Exemption

3(3.12)     No tax is payable by an employer under subsection (3.1.1) for

(a) a year before 2008, if the total remuneration paid by the employer for the year is $1,000,000. or less; or

(b) a year after 2007, if the total remuneration paid by the employer for the year is $1,250,000. or less.

3(3.13)     Repealed, S.M. 2004, c. 43, s. 33.

Notch provision

3(3.14)     The tax payable by an employer under subsection (3.1.1) is 4.3% of the amount by which the total remuneration paid by the employer for the year exceeds

(a) $1,000,000., if the year is before 2008 and that total remuneration is not more than $2,000,000.; or

(b) $1,250,000., if the year is after 2007 and that total remuneration is not more than $2,500,000.

Proration for part-year employers

3(3.15)     Despite any other provision of this section, if an employer does not have a permanent establishment in Manitoba throughout a year after 2001, the following rules apply in determining the tax payable by the employer for the year or a part of the year (the "relevant period"):

(a) the amount of the exemption (the "prorated amount") available to the employer under subsection (3.10) or (3.12), as the case may be, for the relevant period is the amount that bears the same proportion to the exemption otherwise available under that subsection to the employer for the relevant period that

(i) the number of days in the relevant period that the employer has a permanent establishment in Manitoba,

bears to

(ii) the total number of days in the relevant period;

(b) if the remuneration paid by the employer in the relevant period exceeds the prorated amount but is not more than twice that amount, the tax payable on that remuneration is 4.3% of the excess; and

(c) if the remuneration paid by the employer in the relevant period is more than twice the prorated amount, the tax payable on that remuneration is 2.15% of that remuneration.

For this purpose, "remuneration" means remuneration described in subsection (3.1.1).

3(4)         Repealed, S.M. 2004, c. 43, s. 33.

R.S.M. 1987 Supp., c. 32, s. 1 to 4; S.M. 1988-89, c. 19, s. 8; S.M. 1989-90, c. 15, s. 9; S.M. 1993, c. 46, s. 21; S.M. 1996, c. 66, s. 4; S.M. 1997, c. 49, s. 11; S.M. 1998, c. 30, s. 22; S.M. 2001, c. 41, s. 5; S.M. 2004, c. 43, s. 33; S.M. 2005, c. 40, s. 21; S.M. 2007, c. 6, s. 20.

3.1         Repealed, S.M. 2004, c. 43, s. 34.

S.M. 1988-89, c. 19, s. 9; S.M. 2004, c. 43, s. 34.

Commercial truck exemption

3.2(1)      No tax is payable under subsection 3(3.1.1) in respect of remuneration paid by a common carrier to an employee for operating a commercial truck

(a) outside Manitoba; or

(b) in Manitoba on an interjurisdictional trip during which the employee operated the truck both inside and outside Manitoba.

"Interjurisdictional trip" defined

3.2(2)      In this section, "interjurisdictional trip" means a trip by an employee

(a) from a place in Manitoba directly to a place outside Manitoba; or

(b) from a place outside Manitoba directly to a place in Manitoba, or through Manitoba to another place outside Manitoba.

S.M. 1990-91, c. 13, s. 2; S.M. 1995, c. 30, s. 4; S.M. 1998, c. 30, s. 23; S.M. 2004, c. 43, s. 35.

3.3         Repealed.

S.M. 1990-91, c. 13, s. 2; S.M. 1991-92, c. 31, s. 12; S.M. 1996, c. 66, s. 5; S.M. 2002, c. 19, s. 10.

Ceasing to have permanent establishment in Manitoba

4           Where an employer ceases to have a permanent establishment in Manitoba at any time during a month, he shall, with respect to that month, pay the tax in the same manner as though the month ended on the date on which he ceased to have a permanent establishment in Manitoba.

Remittance of tax and returns

5(1)        Every employer that has a permanent establishment in Manitoba shall, in respect of the tax payable on the remuneration paid to employees for each month ending after June 30, 1982, without notice or demand, file with the minister, on or before the 15th day of the month next following the month in which the remuneration was paid, a return and pay to the minister the tax payable on the remuneration paid in that month.

5(2) and (2.1) Repealed, S.M. 1993, c. 46, s. 22.

5(2.2) to (2.4) Repealed, S.M. 2002, c. 19, s. 11.

Declaration of remuneration

5(2.4.1)    The minister may require an employer who is exempt under subsection 3(3.12) from tax for a year to file, before April 1 of the next year, a declaration as to the total remuneration paid by the employer for that year.

5(2.5)      Repealed, S.M. 2002, c. 19, s. 11.

Annual reporting for associated employers

5(2.6)      The minister may require an employer to whom subsection 2(3), (4) or (4.1) applies in a year to file with the minister, before April 1 of the next year,

(a) a report setting out the following information:

(i) the employer's name and the names of all other employers who, along with the employer, are deemed to be a single employer,

(ii) the portion of the exemption or notch reduction, if any, allocated to each of the employers, and

(iii) the following amounts, determined on an individual basis for each of the employers and on an aggregate basis for all of them:

(A) the total remuneration that was paid in the year and is subject to tax under section 3,

(B) the tax payable under section 3, and

(C) the tax paid under section 3;

(b) a copy of every information summary required to be filed by any of them for the year under the Income Tax Act (Canada) in respect of remuneration paid in the year; and

(c) a reconciliation of the remuneration on which tax is payable under this Act with the remuneration reported on the information summaries.

When filing this information, the employer must also pay any tax still owing for the year by the employer, including any interest and penalties owing because of a failure to pay tax when it was due under subsection (1).

Copy of employer summaries

5(3)        The minister may require an employer to file with the minister before April 1 of any year

(a) a copy of every information summary required to be filed by the employer under the Income Tax Act (Canada) in respect of remuneration paid in the preceding year;

(b) a summary of the remuneration described in subsection 2(6) that was paid in that preceding year; and

(c) a reconciliation of the remuneration on which tax is payable under this Act with the remuneration reported on the summaries referred to in clauses (a) and (b).

5(4) and (5) Repealed, S.M. 2002, c. 19, s. 11.

R.S.M. 1987 Supp., c. 32, s. 5 and 6; S.M. 1988-89, c. 19, s. 10; S.M. 1989-90, c. 15, s. 10; S.M. 1990-91, c. 13, s. 3; S.M. 1991-92, c. 31, s. 13; S.M. 1992, c. 52, s. 17; S.M. 1993, c. 46, s. 22; S.M. 1997, c. 49, s. 12; S.M. 2002, c. 19, s. 11; S.M. 2004, c. 43, s. 36; S.M. 2007, c. 6, s. 21.

6           Repealed.

S.M. 2007, c. 6, s. 22.

Annual reporting for non-associated employer

7(1)        The minister may require an employer to whom subsection 5(2.6) does not apply in a year to file with the minister, before April 1 of the next year,

(a) a report setting out the following information:

(i) the employer's name,

(ii) the amount of any notch reduction under section 3,

(iii) the total remuneration that was paid in the year and is subject to tax under section 3,

(iv) the tax payable under section 3, and

(v) the tax paid under section 3;

(b) a copy of every information summary required to be filed by the employer for the year under the Income Tax Act (Canada) in respect of remuneration paid in the year; and

(c) a reconciliation of the remuneration on which tax is payable under this Act with the remuneration reported on the information summaries.

When filing this information, the employer must also pay any tax still owing for the year by the employer, including any interest and penalties owing because of a failure to pay tax when it was due under subsection 5(1).

7(2)        Repealed, S.M. 2005, c. 40, s. 22.

S.M. 1993, c. 46, s. 23; S.M. 2002, c. 19, s. 12; S.M. 2004, c. 43, s. 37; S.M. 2005, c. 40, s. 22.

8 to 37     Repealed.

R.S.M. 1987 Supp., c. 28, s. 3; S.M. 1988-89, c. 13, s. 14; S.M. 1990-91, c. 12, s. 9; S.M. 1991-92, c. 31, s. 14; S.M. 1992, c. 52, s. 18 to 24; S.M. 1993, c. 46, s. 24 to 28; S.M. 1997, c. 49, s. 13; S.M. 1998, c. 30, s. 24; S.M. 2000, c. 39, s. 22 to 24; S.M. 2001, c. 41, s. 6; S.M. 2002, c. 19, s. 13 and 14; S.M. 2003, c. 4, s. 27 to 31; S.M. 2004, c. 43, s. 38 to 41; S.M. 2005, c. 40, s. 22; S.M. 2007, c. 6, s. 22.

Regulations

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

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

(b) repealed, S.M. 2007, c. 6, s. 22;

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

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

Effective date

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

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

(b) an amendment to this Act.

S.M. 1988-89, c. 19, s. 11; S.M. 1990-91, c. 13, s. 4; S.M. 1993, c. 46, s. 29; S.M. 1995, c. 30, s. 5; S.M. 2003, c. 4, s. 32; S.M. 2004, c. 43, s. 42; S.M. 2005, c. 40, s. 23; S.M. 2007, c. 6, s. 22.

39          Repealed.

S.M. 2005, c. 40, s. 24.

40          Repealed.

S.M. 2002, c. 19, s. 15; S.M. 2005, c. 40, s. 24.

 

 
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