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The Statute Law Amendment Taxation Act, 1987

R.S.M. 1987 Supp., c. 32

The Statute Law Amendment Taxation Act, 1987

PART I

AMENDMENTS TO THE HEALTH AND POST SECONDARY EDUCATION TAX LEVY ACT

Subsec. 3(1) am.

1

Subsection 3(1) of the Health and Post Secondary Education Tax Levy Act, chapter H24 of the Re-enacted Statutes of Manitoba, 1987, is amended by adding immediately after "1982" the phrase "and before April 1, 1987".

Subsec. 3(2) am.

2

Subsection 3(2) of the Act is amended by adding immediately after "1983" the phrase "and before January 1, 1987".

Subsec. 3(3) am.

3

Subsection 3(3) of the Act is amended by adding immediately after "1983" the phrase "and before January 1, 1987".

Subsec. 3(3.1) to 3(3.3) added.

4

Section 3 of the Act is amended by adding immediately after subsection (3) the following subsection:

Imposition of tax after March 31, 1987.

3(3.1)

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 after March 31, 1987, a tax equal to 2.25% of the remuneration paid in that month

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

(b) to or on behalf of each of his 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.

Exemption after December 31, 1986.

3(3.2)

Where the total amount of remuneration paid by an employer to his employees is less than $100,000. in any calendar year ending after December 31, 1986, no tax is payable by the employer under subsection 3(3.1) for that calendar year.

Notch provision after December 31, 1986.

3(3.3)

Where the total amount of remuneration paid by an employer to his employees, in any calendar year ending after December 31, 1986 is not less than $100,000. and not greater than $150,000., the tax payable by the employer under subsection 3(3.1), before adding any interest or penalties that may be applicable, shall be 6.75% of the remuneration paid in excess of $100,000. but not exceeding $150,000.

Subsec. 5(2) am.

5

Subsection 5(2) of the Act is amended by adding immediately after "1983" the phrase "and before January 1, 1987".

Subsec. 5(2.1) added.

6

Section 5 of the Act is amended by adding immediately after subsection (2) the following subsection:

Annual declaration of salaries paid after December 31, 1986.

5(2.1)

Notwithstanding subsection (1), every employer that has a permanent establishment in Manitoba, with total annual remuneration paid to employees of less than $100,000. in any calendar year ending after December 31, 1986, shall, without notice or demand, file with the minister, on or before the last day of the second month immediately following the end of the calendar year, a declaration of the total remuneration paid for that calendar year.

PART II

AMENDMENTS TO RETAIL SALES TAX ACT

Definitions added.

1

Subsection 1(1) of the Retail Sales Tax Act, being chapter R130 of the Re-enacted Statutes of Manitoba, 1987, is amended by adding in alphabetical order, the following definitions:

"all-terrain vehicle" means an off-road vehicle that

(i) operates or travels on three or more low-pressure tires,

(ii) has a seat designed to be straddled by the operator of the vehicle, and

(iii) has handlebars for steering the vehicle; ("véhicule tous-terrains")

"computer program" includes

(i) a plan for the solution of a problem through the use of a computer, including the sequence of automatic data-processing equipment instructions necessary to solve a problem;

(ii) instructions to enable or cause a computer to control or perform a function, or to produce a desired result, either directly or through the working of other equipment;

(iii) system programs, application programs and any other computer programs or subdivisions thereof, including assemblers, compilers, routines, generators and utility programs;

(iv) a computer program prepared to the special order of a purchaser;

(v) pre-written computer programs including any modifications of such programs; and

(vi) the design, development, writing, translation or fabrication of a computer program, whether or not provided on storage media. ("programme machine")

Definition "snowmobile" amended.

2

The definition "snowmobile" in subsection 1(1) of the Act is amended by striking out "a motorcycle that has 3 wheels" and substituting therefor "an all-terrain vehicle".

Definitions added.

3

Subsection 1(1) of the Act is amended by adding the following definitions after the definition "storage":

"storage media" includes punched cards, tapes, disks, diskettes, drums, chips, boards or any other objects or devices on which computer programs may be recorded and by which they may be stored or delivered. ("support d'information")

"take out food" means a ready to consume meal that is sold for consumption off the premises on which it is prepared or sold including

(i) a sandwich,

(ii) a plate of salad,

(iii) an arrangement of prepared foods,

(iv) any prepared food that is sold in a heated state, and

(v) any prepared appetizer, soup, salad, dessert or non-alcoholic beverage that is sold with any of the foods described in subclauses (i) to (iv). ("mets à emporter")

Definition "tangible personal property".

4

The definition "tangible personal property" in subsection 1(1) of the Act is repealed and the following substituted therefor:

"tangible personal property" means

(i) personal property that can be seen, weighed, measured, felt, or touched, or that is in any other way perceptible to the senses and without restricting the generality of the foregoing, includes machinery, equipment and apparatus that are installed in, or attached to, buildings or land and that are used in the manufacturing, producing, processing, storing, handling, packaging, displaying, transporting, transmission or distribution of tangible personal property, or in providing a service; and

(ii) computer programs, including any document or manual designed to facilitate the use of a computer program or part thereof. ("biens personnels corporels")

Subsec. 2(1) am.

5

Subsection 2(1) of the Act is amended by striking out "6%" and substituting therefor "7%".

Cl. 2(10)(b) am.

6

Clause 2(10)(b) of the Act is amended by striking out "eighty cents, or fraction of eighty cents," and substituting therefor "700 or fraction of 700".

Subsec. 2(15) rep. and sub.

7

Subsection 2(15) of the Act is repealed and the following subsection is substituted therefor:

Tax on lease of tangible personal property.

2(15)

For the purpose of this section, where tangible personal property is the subject of a lease arrangement, whether or not the lease arrangement is entered into prior to May 4, 1987, the tax is payable at the rate of 7% on the rental that becomes due and payable on or after May 4, 1987.

Cl. 3(1)(a) rep. and sub.

8

Clause 3(1)(a) is repealed and the following clause is substituted therefor:

(a) Food and drink for human consumption off the premises where sold, but not including

(i) take out foods when the total price upon a sale exceeds $6., and

(ii) liquor as that word is defined in The Liquor Control Act.

Cl. 4(1)(r)am.

9

Clause 4(1)(r) of the Act is amended by adding, immediately after "regulations", the words "but not including documents or manuals designed to facilitate the use of a computer program or part thereof.

Cl. 4(1)(pp) rep.

10

Clause 4(1)(pp) of the Act is repealed.

Cl. 4(1)(uu) added.

11

Subsection 4(1) of the Act is amended by adding, immediately after clause (tt), the following clause:

(uu) Baby bottles including component parts, nipples, soothers and teethers, and cups, glasses, dishes and spoons that are specially designed and used to feed babies or to train babies to eat.

Subsec. 3(3) rep. and sub.

12

Subsection 3(3) of the Act is repealed and the following subsection is substituted therefor:

Exemption.

3(3)

Notwithstanding section 2, no tax is payable under this Act in respect of any tangible personal property that is taxed under Part 1 of The Revenue Act, 1964, or that would be taxed under that statute but for an exemption provided therein.

Subsec. 3(11) am.

13

Subsection 3(11) of the Act is amended by striking out "6%" and substituting therefor "7%".

Subsec. 3(12) am.

14

Subsection 3(12) of the Act is amended by striking out "6%" and substituting therefor "7%".

Subsec. 3(13) am.

15

Subsection 3(13) of the Act is amended by striking out "6%" and substituting therefor "7%".

Subsec. 3(19) rep.

16

Subsection 3(19) of the Act is repealed.

Cl. 4(1)(d)am.

17

Clause 4(1)(d) of the Act is amended by adding, immediately after the word "remodeling,", "altering, adjusting, modifying, updating,".

Subsec. 4(1.1) added.

18

Section 4 of the Act is amended by adding immediately after subsection (1), the following subsection:

Timeshare.

4(1.1)

For the purpose of clause 4(1)(a), accommodation is deemed to be lodging let for a continuous period of one month or more if it is provided pursuant to a written agreement, commonly called a timeshare agreement, that

(a) has a term of two or more consecutive years;

(b) fixes the location and time of occupancy;

(c) fixes the total price and the terms and conditions for the payment of the total price for the accommodation; and

(d) provides for an aggregate number of days of occupancy of 30 days or more.

Subsec. 15(1) am.

19

Subsection 15(1) of the Act is amended (a) by striking out "6%" in clause (a) and substituting therefor "7%"; and

(b) by striking out "6%" in clause (b) and substituting therefor "7%".

PART III

AMENDMENTS TO THE REVENUE ACT

Definition "purchase price".

1

The definition "purchase price" in section 1 of The Revenue Act, chapter R150 of the Re-enacted Statutes of Manitoba, 1987, is repealed and the following definition is substituted therefor:

"purchase price" means the value in Canadian money of the consideration, whether money, goods, things done, rental, services, or any other consideration whatsoever, accepted by any person as the price or on account of the price of a taxable product, and includes

(i) the cost of transportation whether borne by the purchaser or the seller and any other costs whatsoever in connection with the taxable product; and

(ii) any tax, levy, or duty, imposed by the Government of Canada in respect of the taxable product or the purchase, sale, or importation thereof, and paid or collected by the seller;

but does not include any tax or levy imposed by a municipal corporation in respect of the taxable product; and, where the minister has fixed under subsection 3(10) an amount on which the tax is payable, means the amount so fixed;. ("prix d'achat")

Subsec. 3(1) am.

2

Subsection 3(1) of the Act is amended by striking out "six per centum" and substituting therefor "7%".

Subsec. 3(1.1) added.

3

The Act is amended by adding the following subsection immediately after subsection 3(1):

Adjustment.

3(1.1)

In determining the tax payable on those taxable products described under clauses (a) and (b) of the definition "Taxable product" in section 1 for a billing period which includes days before, on and after the day on which the rate of tax payable under subsection (1) is changed:

(a) the purchase price of the taxable product shall be prorated on the basis of estimated consumption for the days before, on and after the date of the tax rate change for that portion of the bill that is based on consumption;

(b) the purchase price of the taxable product billed on a basis other than consumption shall be prorated on the basis of the number of days in the billing period before the date of the tax rate change and the number of days on and after that date for that portion of the bill that is on a basis other than consumption; and

(c) where a dealer does not have the capability of calculating the tax as required under clauses (a) and (b), the purchase price of the taxable product shall be calculated on such basis as the minister may approve on application.

Part III added.

4

The Act is amended by adding immediately after section 32, the following Part.

PART III

LAND TRANSFER TAX

Definitions.

33(1)

In this Part,

"collector" means the district registrar of a land titles district and the registrar of a registration district; ("percepteur")

"minister" means the Attorney-General; ("minister")

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

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

"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.

33(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.

33(3)

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

Imposition of tax.

34(1)

Subject to sections 35 and 36, 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 = .005 (FMV - $30,000.) + .005 (FMV - $90, 000.) + .005 (FMV-$150,000.)

In this formula, "FMV" means the fair market value of the interest being transferred at the time the transfer is tendered for registration but any calculation which results in a negative value shall be deemed to be a nil value.

Where transfer registered in more than one office.

34(2)

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.

34(3)

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

Farm land exemption

35(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 of a farmer,

(iii) a farmer and his or her spouse,

(iv) a family farm corporation, or

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

Affidavit.

35(2)

A transferee who claims an exemption under subsection (1) shall verify the claim by filing with the collector an affidavit in a form satisfactory to the collector.

Other exemptions.

36

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;

(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 34 was paid on the previous transfer; or

(e) a transfer of a family asset within the meaning of The Marital Property Act between spouses or former spouses including a transfer from an executor or administrator upon the death of a spouse.

Affidavit of value.

37(1)

There shall be filed with each transfer tendered for registration an affidavit setting out the fair market value of the land being transferred.

By whom affidavit made.

37(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.

Protest of payment of tax.

38(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.

38(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.

38(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 where the person protest considers that estimate to be relevant to the objection.

Minister's determination.

38(4)

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

Notice.

38(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.

38(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.

Assessment.

39(1)

The minister may, on information available to him or her, determine fair market value and the correct amount of tax payable.

Notice to transferee.

39(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.

39(3)

The notice of assessment shall contain the determination of the fair market value made by the minister, 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.

39(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.

39(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.

39(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 to government.

39(7)

Interest on the amount of tax owing is payable and shall be calculated, commencing 30 days after the date shown on the notice of assessment, at the rate prescribed under the Financial Administration Act.

Notice of objection.

40(1)

A person who objects to an assessment made under section 39 shall mail a notice of objection to the minister within 90 days after the date shown on the notice of assessment.

Contents.

40(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 where the person objecting considers that estimate to be relevant to the objection.

Minister's determination.

40(3)

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

Notice.

40(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.

40(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.

40(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.

Land held by corporation.

41(1)

Where a corporation other than a family farm corporation holds an interest in land and the corporation or a controlling interest in the corporation is sold to a purchaser, tax calculated in accordance with this Part shall be paid by the purchaser on the fair market value of the corporation's interest in the land.

Affidavit.

41(2)

The purchaser responsible for paying the tax under subsection (1) shall file with the minister an affidavit in a form satisfactory to the minister as to the fair market value of the interest in the land and the corporation's interest in the land, and shall remit the tax to the minister.

Corporation.

41(3)

Where the purchaser under subsection (1) is a corporation, the affidavit required by subsection (2) shall be made by an officer or director of that corporation.

Application.

41(4)

Sections 39 and 40 apply with such modifications as the circumstances require to the tax payable under this section.

Failure to pay tax.

42(1)

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

False affidavits, etc.

42(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) has failed to comply with section 41;

(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.

42(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.

42(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.

42(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.

42(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.

42(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.

42(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.

Enforcement

43

The provisions of Part I respecting the enforcement of that Part apply with such modifications as the circumstances require to this Part.

Fraud.

44

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.