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as enacted by SM 1987-88, c. 9 on July 17, 1987.
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R.S.M. 1987, 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:
In this Act,
"assessment" includes a reassessment; ("cotisation")
"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")
"debtor" means a person who owes the government tax under this Act; ("débiteur" )
"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, including the government and the Government of Canada, paying remuneration to an employee; ("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 local committee appointed under The Northern Affairs Act, a community council continued under The Northern Affairs Act, or an incorporated community incorporated 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")
"prescribed" means prescribed in the regulations; ("réglementaire")
"remuneration" includes any payment, benefit or allowance which, by reason of subsection 5(1) or section 6 or 7 of the Income Tax Act (Canada) are declared to be or are required to be included in income of a person for the purposes of that Act, and without limiting the generality of the foregoing includes
(a) salary and wages,
(b) bonuses,
(c) commissions or other similar amounts fixed by reference to the volume of sales made or the contracts negotiated, and
(d) other taxable allowances or benefits paid to an employee or officer,
but does not include any pension, annuity or superannuation benefit paid by an employer to a former employee after retirement of that employee; ("rémunération")
"return" means the prescribed employer tax return; ("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 including all penalties and interest that are or may be payable in respect thereof; ("impôt")
"tax payable" by an employer under this Act means the tax payable by the employer or fixed by assessment subject to variation on appeal in accordance with this Act; ("impôt exigible")
"year" means a numeric year. ("année")
Subsidiaries place of business.
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.
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.
Subject as hereinafter provided, every employer, shall, for every month ending after June 30, 1982, pay to the government at the time and in the manner provided in this Act and the regulations, a tax equal to 1.5% 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 if paid from or through a permanent establishment of the employer in Manitoba.
Where the total amount of remuneration paid, by an employer to his employees in accordance with subsection 3(1), is less than $50,000. in any calendar year ending after December 31, 1983, no tax is payable by the employer for that calendar year.
Where the total amount of remuneration paid, by an employer to his employees, in accordance with subsection 3(1), in any calendar year is not less than $50,000. but not greater than $75,000., the tax payable by the employer, before adding any interest or penalties that may be applicable, will be 4.5% of the respective remuneration in excess of $50,000. but not exceeding $75,000.
Delay of imposition of tax for local government bodies.
Notwithstanding subsection (1), where an employer is a local government body, the tax payable under subsection (1) is not required to be paid in respect of remuneration paid to employees of the employer before January 1, 1983.
Ceasing to have permanent establishment in Manitoba.
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.
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.
Annual declaration of salaries paid.
Notwithstanding subsection (1), every employer, that has a permanent establishment in Manitoba, with total annual remuneration paid to employees of less than $50,000. in any calendar year ending after December 31, 1983, 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 total remuneration paid for that calendar year.
Every employer, shall, before the last day of February immediately following the end of a year, file with the minister a copy of the employer's T4-T4A summary for that year as required to be filed under the Income Tax Act (Canada).
Delay for local government bodies.
Notwithstanding subsection (1), where an employer is a local government body, no return is required under subsection (1) in respect of remuneration paid to employees by the employer prior to January 1, 1983.
Late returns for first three months.
Notwithstanding subsection (1), the returns required to be made and the tax required to be paid under subsection (1) for remuneration paid by an employer in a month ending after June 30, 1982 and before October 1, 1982, are not required to be made or paid to the minister until October 15, 1982.
Each return shall be verified by a certificate certifying that the information entered and disclosed on the return is true and correct in every respect and the certificate shall be signed by the employer or some officer of the employer having personal knowledge of the affairs of the employer and, in the case of a corporation having its head office outside of Manitoba, by the manager or chief agent of the corporation in the province or by such other person or persons connected with the corporation as the minister requires.
Notwithstanding any other provision of this Act, the minister may, at any time, require an employer to file with the minister a return covering any period of time, and including such information, as the minister may specify, and the employer shall, within such reasonable time as the minister may specify, provide the return and remit to the minister therewith all tax payable in respect of the period specified which has not previously been paid.
Notwithstanding any other provision of this Act, the minister may defer the date on which an employer is required, or all employers are required, to file a return or pay the tax payable in respect of any period which the minister may specify.
Every trustee in bankruptcy, assignee, liquidator, receiver, administrator, or other person administering, managing, winding-up, controlling, or otherwise dealing with property or business of an employer
(a) shall make returns and pay tax that the employer is required to make or pay; and
(b) before distributing any assets under his control, shall obtain a certificate from the director certifying that no tax, interest or penalties chargeable against or payable by the employer under this Act are outstanding.
The amount of any tax payable under this Act by an employer, and any penalty assessed under this Act against an employer, and any interest payable under this Act by an employer, are debts due by the employer to the government and are recoverable as such in a court of competent jurisdiction in the name of Her Majesty in right of Manitoba represented therein by the minister.
From and after the date on which any debt due to the government under this Act is to be paid or remitted by an employer, the debt bears interest at a rate per year prescribed by regulations made by the Lieutenant Governor in Council under The Financial Administration Act, compounded annually, and the interest is payable to the minister for the use of the Crown, but where the Lieutenant Governor in Council prescribes a rate of interest, the rate shall not be effective for at least seven days after the date on which the rate is prescribed.
Where, under this Act, the minister refunds any amount that has been paid as tax by reason of an assessment or an amount of an assessment being reduced on appeal, he shall add to the amount of the refund interest at the same rate as the rate prescribed by regulation under The Financial Administration Act for the purposes of subsection (2) for the period from the day the amount being refunded was paid by the employer to the date on which the refund is made.
For purposes of the enforcement procedures set out in sections 11 to 15, a person shall be deemed to be a debtor of the government in one or more of the following circumstances:
(a) the person has declared a tax liability on a return filed under this Act;
(b) the person has received an assessment and
(i) has not appealed the assessment within the time period required by this Act, or
(ii) has appealed, and the appeal has been finally resolved in favour of the government;
(c) the person has declared, or agreed to, a tax liability in any form of writing, including the issuing of a cheque on which payment has not been honoured for any reason;
(d) an action by the government in a court of competent jurisdiction to recover moneys as a debt due by the person under this Act has been finally resolved in favour of the government; or
(e) the government has commenced an action in a court of competent jurisdiction to recover moneys allegedly owing by the person as a debt due to the government under this Act.
The expression "debtor of the government" in subsection (1) includes the expression "debtor liable for the payment of any debt due to the government under this Act" and any similar expression contained in sections 11 to 15.
Where any of the enforcement procedures set out in sections 11 to 15 have been used to recover moneys in the circumstances described in clause (l)(e), the moneys shall be paid into court and, upon final resolution of the court action, shall be paid
(a) to the government, to the extent required to satisfy the judgment in the court action and any costs thereof assessed against the debtor; or
(b) to the debtor, to the extent that the moneys are not required for purposes of clause (a).
Application by alleged debtor.
Where any of the enforcement procedures set out in sections 11 to 15 have been or are being used to recover a debt allegedly owing by a person who is not deemed to be a debtor of the government under subsection (1), the person may, within 30 days of the exercise of the enforcement procedure or within such further time as the court may allow, apply to a court of competent jurisdiction for an order under subsection (5).
Where, upon hearing an application under subsection (4), the court is satisfied that the applicant owes no debt to the government, or owes a smaller debt than the government has alleged, the court may
(a) where applicable, order immediate termination of the enforcement procedure; and
(b) order the government to make restitution to the applicant in an appropriate amount, including any moneys reasonably expended by the applicant in applying for the order.
Procedures to recover debt accumulative.
The powers conferred upon the minister by this Act for the recovery of any debt due to the government by action in a court of competent jurisdiction, or by issue and registration of a certificate in a land titles office, or by issue and direction of a warrant to a sheriff, or by any other means, may be exercised separately, concurrently and cumulatively, and the liability of a person for the payment of a debt under this Act is not affected in any way by the fact that a fine or penalty has been imposed on or paid by any person in respect of any contravention of this Act or the regulations.
The amount of any debt due from any person to the government under this Act binds, and is a lien charge in favour of the government on, all the property in the province of the debtor, other than real property, and the lien has priority over all other claims of any person against the debtor, except a person having a prior security or lien duly registered or filed in a registry or filing office under an Act of the Legislature or an Act of Parliament prior to the date that the lien in favour of the Crown arose.
Certificate of debts and registration.
The minister may issue a certificate, in a form prescribed in the regulations, showing the name and address of the debtor liable for payment of any debt due to the government under this Act and certifying the amount of the debt payable, and he may register the certificate in the Land Titles office of a land titles district, and from the time of the registration, the certificate binds and is a lien charge, in favour of the government, for the amount so certified, on all lands of the person liable situated in that land titles district.
A certificate issued under subsection (2) shall be registered on its mere production without an affidavit of execution, and the lien and charge thereby created may be realized in the same manner as if it were a mortgage on the land executed by the owner thereof the payment of the principal and interest of which was in default at the time of registration.
The liens and charges created under this section and their priority are not lost or impaired by the taking or failure to take proceedings to recover the debt due, or by the tender or acceptance of any partial payment of the debt, or by want of registration.
Lien on bankruptcy proceedings.
In case of the insolvency of any debtor, or the liquidation of any debtor, the amount of the debt is a lien and charge on the estate and assets of the person, subject to any statute of Canada and to the costs and charges of insolvency or liquidation proceedings.
Where the minister is informed or suspects that a person is or is about to become indebted, or liable to make a payment, to a debtor, the minister may, by registered letter or by letter served personally, demand of that person that the moneys otherwise payable to him by the debtor be paid, in whole or in part, to the minister on account of the liability of the debtor under this Act.
Discharge of liability to debtor.
The receipt of the minister for moneys paid by a person pursuant to a demand made under subsection (1) constitutes a good and sufficient discharge of the liability of the person to the debtor to the extent of the amount received by the minister.
Any person who, after receipt of a demand under subsection (1), discharges any liability to the debtor, is personally liable to Her Majesty in right of Manitoba to the extent of the lesser of
(a) the liability discharged as between the person and the debtor; and
(b) the liability of the debtor for the debt payable to the government under this Act.
A letter under subsection (1) shall be deemed to have been served personally on a person engaged in business if it has been left with an adult person employed at the place of business of the person.
Service of demand in business name.
Where a person who is, or is about to become, indebted or liable to a debtor carries on business under a name or style other than his own name, the registered or other letter under subsection (1) may be addressed to the person in the name or style under which he carries on business.
Service of demand on partnership.
Where persons who are, or are about to become, indebted or liable to a debtor carry on business in partnership, the registered or other letter under subsection (1) may be addressed to the partnership name and the letter under subsection (1) shall be deemed to have been served personally on all the partners if it has been served on one of the partners or left with an adult person employed at the place of business of the partnership.
Warrant against personal property.
The minister may issue a warrant for the amount of debt due to the government by a debtor under this Act, together with the costs, expenses and poundage of the sheriff, directed to the sheriff in any judicial district in which any goods or property of the debtor are situated, and the warrant has the same force and effect, and is subject to the same exemptions, as a writ of fieri facias issued out of the Court of Queen's Bench.
Subject to subsection (4), goods or property seized under a warrant issued in accordance with this section shall be kept for 10 days at the cost and charges of the debtor, and if the debtor does not pay the debt due, together with the costs and charges within those 10 days, the goods and property seized under the warrant may be sold by public auction.
Except in the case of perishable goods or property seized under a warrant issued in accordance with this section, notice of the sale setting forth the time and place thereof, together with a general description of the goods and property to be sold, shall be published in a newspaper having general circulation in the area in which the debtor carries on business.
In the case of perishable goods or property, the sheriff making the seizure under a warrant issued in accordance with this section shall give notice to the debtor of his intention to sell the goods or property, and it shall be sold as soon as reasonably practical and neither the sheriff nor the minister is liable for damages for any loss occurring which would not have occurred if there had been no seizure.
Any surplus resulting from the sale of goods or property under this section, after deduction of the amount owing by the debtor and all costs and charges, shall be paid to the debtor.
Demand for payment if debtor is leaving Manitoba.
The minister, if he suspects that a debtor is about to leave Manitoba, may, for that or any other reason, by notice sent to the debtor demand payment of all taxes, penalties, and costs, for which the debtor is indebted to the government and the debtor shall pay them within 10 days from the date of the mailing of the notice notwithstanding any other provision of this Act.
Seizure of goods upon non-payment
Where a debtor fails to pay all taxes, penalties and costs in response to a demand given under subsection (1), the goods and property of the debtor may be seized by the sheriff of the district within which the goods and property of the debtor are situated.
Certificate to authorize seizure.
A certificate of non-compliance with a demand made under subsection (1), signed by the minister, setting forth the particulars of the demand and placed in the hands of the sheriff, is sufficient authority to the sheriff to seize sufficient of the goods and property of the debtor to meet the demand.
The sale of the goods and property seized under this section, and the disposition of the money realized, shall be conducted in the manner prescribed in section 14.
Every employer who fails to file a return or a complete return for a month within the time fixed or allowed for the filing of the return is liable, regardless of whether he is prosecuted or convicted under any other provision of this Act to a penalty, to be assessed by the minister, not exceeding $100. for each day during with the failure continued, and any amount assessed under this subsection shall be conclusively deemed to be tax payable under this Act and in addition to any other tax payable under this Act, and may be collected as tax payable under this Act.
Every employer who fails to pay any balance of tax, payable under this Act in the amount and at the time required under this Act is liable, regardless of whether he is prosecuted or convicted under any provision of this Act, to a penalty of 5% of the amount of the balance of tax that is unpaid at the time required, and any penalty under this subsection shall be conclusively deemed to be tax payable under this Act and in addition to any other tax payable under this Act, and may be collected as tax payable under this Act.
Neither the minister nor the director is bound by a return or information supplied by or on behalf of any person and the minister or the director may, notwithstanding any return or information supplied, or where no return has been filed, make the assessments contemplated under this Act.
Requirement of additional information.
The minister or the director may, for any purpose relating to the administration or enforcement of this Act, by registered letter or by demand served on the person, require a person, within such reasonable time as is stipulated in the letter or demand
(a) to provide any information or additional information, or to file any return or supplementary return with the minister or with the director;
(b) to produce to the minister or to the director any book, record, writing or other document in the possession or control of the person; or
(c) to make certain books, records or documents of an employer, or information, available to the minister or the director or to a person designated by the minister or director.
Failure to supply information.
Every person who fails to comply with the requirement of the minister or director under subsection (1) is liable, regardless of whether he is prosecuted or convicted under any provision of this Act, to a penalty to be assessed by the minister not exceeding $200. for each day during which the failure continues, and any amount assessed under this section shall be conclusively deemed to be tax payable under this Act and in addition to any other tax payable under this Act and may be collected as tax payable under this Act.
The director, or any officer appointed by the minister under this Act and duly authorized for the purpose, or any peace officer may, at any reasonable time and without warrant, enter upon the business premises of any employer, or any premises where the director, officer or peace officer has reasonable and probable grounds to believe that business records of an employer are kept,
(a) for the purpose of ascertaining whether tax has been, or is being, paid by the employer, or the amount of tax payable by the employer; or
(b) to inspect, examine or audit the books, records, documents, assets and premises of the employer, for the purpose of ascertaining the amounts taxable of the employer or the tax payable by the employer; or
(c) to make such inquiries and inspections of the premises as the director, officer or peace officer reasonably requires for the purposes of this Act;
or to do two or more of the things mentioned in clauses (a) to (c); and the employer or the employees or agents of the employer shall, at that time, produce for inspection by the director, officer or peace officer such books, records, documents or assets as the director, officer or peace officer may require.
A justice who is satisfied by information upon oath that there are reasonable and probable grounds to believe that
(a) a violation of this Act or the regulations has occurred or is occurring; and
(b) there is to be found in any building, receptacle, vehicle, or place in the province a book, record, document, asset or other thing which affords evidence of the violation;
may at any time, and where necessary upon ex parte application, issue a warrant authorizing any officer of the Department of Finance, together with any peace officer on whom the officer calls for assistance and such other persons as may be named therein, to enter and search the building, receptacle, vehicle, or place for the book, record, document, asset or thing, and to seize and retain it for production in any court proceedings.
Where any book, record or document has been seized, inspected, examined, audited or produced in accordance with this section, the person by whom it has been seized, inspected, examined or audited, or to whom it has been produced, or any officer employed under the minister, may make or cause to be made one or more copies thereof; and a document purporting to be certified by a person authorized by the minister for the purpose to be a copy made pursuant to this subsection, is admissible in evidence and has the same probative force in any court or inquiry as the original book, record or document would have had if it had been proven in the ordinary way.
Where any book, record, document, asset or thing has been seized or produced under this section, the person by whom it was seized or to whom it was produced shall
(a) in the case of a book, record or document, within a reasonable time of a written request therefor by the person from whom it was seized or by whom it was produced, and where information from the book, record or document is reasonably required for the conduct of the person's business, send the book, record or document or a copy thereof to the person; and
(b) subject to subsection (5), return the original book, record or document, or the asset or thing, to the person from whom it was seized or by whom it was produced, within 180 days of the seizure or production.
Any person authorized by the minister for the purpose may apply to a judge of the Court of Queen's Bench for an extension of the 180 day period referred to in clause (4)(b), and upon hearing the application the judge may dismiss the application or may grant an extension for such time and subject to such conditions as the judge sees fit, if the extension is reasonable and necessary for purposes of
(a) existing or anticipated court proceedings arising out of an alleged violation of this Act or the regulations; or
(b) a continuing investigation into a suspected violation of this Act or the regulations.
The decision of the judge under subsection (5) is final and binding and there is no appeal therefrom.
Where the judge dismisses an application for an extension of time under subsection (5), the person who made the application shall, within 30 days of the decision, return the original book, record or document, or the asset or thing, to the person from whom it was seized or by whom it was produced.
Subject to subsection (2), no person employed by the government under the minister in the administration of this Act shall communicate or disclose to any person any information of a private or confidential nature acquired by him under this Act except insofar as may be necessary for the due administration and enforcement of this or any other Act of the Legislature imposing a tax or levy.
Reciprocal exchange of information.
The minister may permit information or a copy of any book, record, writing, return or other document submitted by, or obtained from, a person under or in respect of this Act, to be given or shown to any person employed by the government of any country, province or state if
(a) information, books, records, writings, returns and other documents obtained by or submitted to the government of that country, province or state, for the purposes of any law that imposes a tax are given or shown to persons employed by the government of Manitoba on a reciprocal basis; and
(b) the minister is satisfied that the information, book, record, writing, return or other document given to or made accessible to the government of that other country, province or state will not be used by the government of that other country, province or state, for any purpose other than the administration and enforcement of a law that provides for the imposition of a tax or levy.
Where the minister makes an agreement or arrangement respecting the reciprocal exchange of information under subsection (2), the minister shall publish in the Manitoba Gazette a notice setting out the terms of the agreement or arrangement.
Books and records to be available.
Each employer shall keep and maintain within Manitoba and make available within Manitoba for inspection, examination and audit under this Act books and records relating to the operation of the employer or make such other arrangements with the director as may be satisfactory to the director to make them available for inspection, examination and audit under this Act.
Order of director as to books and records.
If the books and records kept by an employer are, in the opinion of the director, inadequate for the purposes of this Act, he may, by written order, require the books and records to be kept by the employer, the nature thereof and the entries to be made therein, and the employer shall, within such reasonable time as the director may stipulate in the order, begin keeping the books and records as required.
Failure to comply with order of director.
Where the director makes an order under subsection (2), the employer to which the order is directed shall comply with the order, and, if he fails to comply with the order, he is guilty of an offence and liable, on summary conviction, to a fine of not less than $100. and not more than $1,000.
Where
(a) an employer fails to file a return required under this Act in respect of a particular month; or
(b) the return of an employer in respect of a particular month is not, in the opinion of the director, substantiated by books and records of the employer; or
(c) upon inspection or examination of a return or audit of books, records and documents, it appears to the satisfaction of the director that any tax payable by an employer under this Act in respect of a particular month has not been paid in accordance with this Act;
the director may make an assessment of the amount of tax payable by the employer in respect of that month, and subject to sections 22 and 23, the amount so assessed shall be conclusively deemed to be the amount of tax payable by the employer in respect of that month.
Assessment where records inadequate, etc.
Where
(a) the books and records kept by an employer are, in the opinion of the director, inadequate for the purposes of this Act; or
(b) after being requested by the director to produce his books and records, an employer fails or refuses to produce his books and records for examination for the purposes of this Act; or
(c) an employer alleges that his books or records have been lost or destroyed;
the director may make an assessment of the tax payable by the employer in respect of a particular month on the basis of his valuation of the amount taxable of the employer and, subject to sections 22 and 23, the amount so assessed shall be conclusively deemed to be the amount of tax payable by the employer in respect of that month.
Where the director has made an assessment under subsection (1) or (2), he shall, by notice in writing, either mailed to or served on the employer, require the employer to remit to the minister, or otherwise account for, within 30 days after the date on which the notice is mailed or served, the tax payable as assessed under subsection (1) or (2) and thereupon the employer shall, within that time, pay the tax assessed or otherwise account therefor to the satisfaction of the minister.
An affidavit of statutory declaration by the person serving or mailing a notice pursuant to subsection (3) stating that he has served or mailed the notice is prima facie proof that the amount stated in the notice is due and owing.
Where the director has, under this section, made an assessment of the amount of tax payable by an employer in respect of a month, he is not by reason thereof prevented or prohibited from making a further assessment or a reassessment of tax payable by the employer in respect of that month but, where an employer has, under section 22 or 23, appealed an assessment under this section in respect of a particular month, the director shall not make a further assessment or reassessment of the tax payable by the employer in respect of that month unless the further assessment or reassessment is based on information that was not in the return of the applicant or otherwise submitted to the director by the applicant before or at the time the appealed assessment was made.
Where an employer disputes the amount of an assessment made under section 21, he may directly, or by his agent, within 60 days after receiving the notice of the assessment, serve notice of appeal upon the minister.
The notice of appeal served under subsection (1) shall be in writing and shall set forth clearly the reasons for the appeal and any facts relative thereto.
Upon receipt of a notice served under subsection (1), the minister shall duly consider the matter appealed and may affirm, rescind, or amend the assessment and shall forthwith send by registered mail to the appellant or serve upon the appellant notice of his decision.
Where an employer is dissatisfied with the decision of the minister given under section 22, he may appeal therefrom to the Court of Queen's Bench and the onus shall be on the person to disprove the assessment as affirmed or amended by the decision of the minister.
An appeal under subsection (1) shall be made by filing in the Court of Queen's Bench, within 60 days after the date on which the notice of the decision appealed was sent by registered mail or served under subsection 22(3), or such further period as a judge of the court may on application allow, a statement of claim naming Her Majesty the Queen in right of Manitoba as the defendent and setting forth the grounds of the appeal.
Upon a statement of claim being filed under subsection (2), the action shall continue in the same manner as any other action in the Court of Queen's Bench unless the court otherwise orders, and any party to the action may apply to a judge of the Court of Queen's Bench for directions as to the conduct of or steps to be taken in the action and a judge of the Court of Queen's Bench may make such order as he thinks advisable respecting the conduct of the action and steps to be taken therein.
Upon an appeal under this section, the court may affirm, set aside or vary the decision appealed and may, in delivering judgment disposing of the appeal, order payment or repayment of the tax, interest and penalties, or costs, by the employer or the government.
Assessment not affected by irregularity.
An assessment made by the director under section 21 shall not be varied or disallowed because of any irregularity, informality, omission or technical error on the part of any person in observing any directory provision of this Act or the regulations up to the date of the issuing of the notice of the assessment.
Neither the launching of an appeal by an employer nor any delay in the hearing of an appeal shall in any way effect the due date, the interest, or penalties, or any liability for payment of the tax under this Act that is the subject of the appeal or any way delay the collection of the same, but in the event of the assessment of the director being set aside or reduced on appeal, the minister shall refund any amount that has been paid as tax in respect of the assessment or the amount thereof by which it is reduced.
Where, on an assessment under this Act, it is disclosed that the amount paid by an employer as tax for a particular month exceeds the amount that is required to be paid by the employer as tax for that month, the minister shall refund the amount of the excess to the employer, except that, if the employer owes any tax in respect of any other particular month, the amount of the excess or so much thereof as is required shall be retained by the minister and applied on the tax owing in respect of that other month and the employer shall be notified of the application thereof.
No refund shall be made under this section where the payment of the excess tax is not discovered within four years of the date on which the excess tax was paid.
Every employer who attempts to evade payment of all or part of the tax payable by him under this Act by understating the amount of remuneration paid by him is liable, regardless of whether he has been prosecuted or convicted under any provision of this Act, to a penalty to be assessed by the minister not exceeding 50% of the amount of the tax sought to be evaded.
Failure to produce records, etc.
Every person who
(a) refuses or wilfully neglects to produce, as required under this Act, books, records or documents to a person entitled under this Act to inspect, examine or audit them; or
(b) refuses or wilfully neglects to answer any question put to him by a person entitled under this Act to do so relating to any matter concerning which he is required under this Act to answer; or
(c) refuses or wilfully neglects to file any return or make any report required from him under this Act; or
(d) files or makes a false or misleading return or report or gives false or misleading answers or information in any return or report under this Act, or makes a false or misleading answer to any question put to him by a person entitled to do so relating to any matter concerning which he is required under this Act to answer; or
(e) destroys, alters, mutilates, secretes or disposes of any books, records or documents of an employer to evade tax payable under this Act; or
(f) makes, permits, assents to, or acquiesces in, the making of false or misleading entries or omissions in the books, records or documents of an employer to evade tax under this Act; or
(g) wilfully evades or attempts to evade complying with this Act or payment of tax under this Act;
is guilty of an offence and liable on summary conviction to a fine of not less than $100. or more than $200. plus an amount not less than double the amount of any tax payment of which was evaded or sought to be evaded.
Every person who obstructs the minister or the director or any other person authorized under this Act to make any inspection, examination or audit of any books, records, documents, assets or premises in making any such inspection, examination or audit in the administration of this Act, is guilty of an offence and liable on summary conviction to a fine of not less than $100. or more than $200.
Failure to obey Act an offence.
Any person who disobeys, or refuses, or wilfully neglects, omits or fails, to comply with any provision of this Act or the regulations or any request or requirement made or imposed under the authority of this Act is guilty of an offence.
Any person who is guilty of an offence under this Act in respect of which no penalty is expressly provided elsewhere herein is liable, on summary conviction, to a fine of not less than $50. and not more than $100.
Officers of corporations as parties to offences.
Where a corporation disobeys, or refuses, neglects, omits or fails to comply with any provision of this Act or the regulations or any request or requirement made or imposed under the authority of this Act, or makes any false or misleading statement or omission in any return or report required under this Act or the regulations, every director and every officer of the corporation who authorized, permitted or acquiesced in the disobedience, refusal, neglect, omission or failure or the making of the statement or omission in the return or report, is guilty of an offence and liable on summary conviction to a fine in any amount to which the corporation would be liable if it were found guilty, or to imprisonment for a term not exceeding six months or to both such fine and such imprisonment.
Acts of agent deemed acts of principal.
In construing and enforcing this Act, an employer shall be deemed to be a party to any Act, omission, neglect or failure of an officer, employee or agent of, or of any other person acting for, the employer and acting within the scope of his employment or instructions.
Notwithstanding any other Act of the Legislature, proceedings in respect of the prosecution in respect of an alleged offence under this Act relating to a false or misleading statement or answer may be instituted at any time after the offence was alleged to have been committed; and proceedings in respect of a prosecution of any other alleged offence under this Act or the regulations may be instituted at any time within six years after the time when the subject matter of the prosecution arose.
Where a person commits an offence under this Act and the offence continues more than one day, the person offending is, for each day during which the offence continues, guilty of a further offence and may be convicted therefor, and is liable to the same punishment as for the original offence for each day during which the offence continues, and where an information relating to an alleged offence under this Act sets out that the alleged offence continued on several days or for a period of days it shall be treated as and conclusively deemed to be separate informations alleging a separate offence for each of the several days or for each of the days in the period.
Where, under this Act, any notice or document is required to be served on, delivered to or sent to an employer, it is sufficiently served, delivered or sent
(a) if it is delivered to any office of the employer in Manitoba; or
(b) if it is sent by registered mail addressed to the employer at the address in Manitoba shown on the most recent return of the employer filed under this Act or as last known to the director; or
(c) where no address of the employer in Manitoba is known to the director, if it is sent by registered mail addressed to the post office nearest to the place where the employer has a permanent establishment in Manitoba.
Where, under this Act, any notice or document required to be served on, delivered to or sent to an employer, is sent to the employer by registered mail, the employer shall be deemed to have received the notice or document on the second day after the day on which it was mailed not including any day on which the post office if closed.
In any prosecution for failure to pay tax or any proceeding to collect tax, the onus of proving that the tax was paid or that no tax is payable as the case may be is upon the person alleging that the tax was paid or that no tax is payable.
In any prosecution or proceeding under this Act, an affidavit by the director as to facts necessary to establish that he has complied with a provision of this Act is admissible as prima facie proof of the facts set out therein.
Delegation of powers by director.
The director, with the approval of the minister, may authorize any person employed in the Department of Finance to perform and exercise such of the duties imposed and powers conferred by this Act upon the director as may, in the opinion of the director, be conveniently performed or exercised by that person and the performance or exercise of those duties or powers by the person so authorized shall be of the same force and effect as if they were performed or exercised by the director.
Tax payable to Consolidated Fund.
All moneys received by the minister as proceeds of the tax shall be paid into the Consolidated Fund and shall be credited to a special account in the books of the government as received, and any refunds made under this Act or the regulations shall be charged to the special account.
For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make regulations ancilliary thereto and not inconsistent therewith, and every regulation made under, and in accordance with the authority granted by, this section has the force of law; and, without restricting the generality of the foregoing, the Lieutenant Governor in Council may make regulations,
(a) prescribing forms for employer tax returns and any other forms required under this Act;
(b) respecting information required to be disclosed in a return or any other prescribed form;
(c) prescribing anything else that by this Act is to be prescribed or is to be determined or regulated by the regulations;
(d) respecting the retention or destruction, or both, of the books and records referred to in subsection 20(1).
Notwithstanding The Regulations Act, and notwithstanding that the regulation is not filed under The Regulations Act, a regulation made under subsection (1) has force and effect on, from and after the date it is made, or such other date as is specified in the regulations.
Notwithstanding The Regulations Act or any other law, a regulation made under subsection (1) may be made effective retroactively to a date not earlier than July 1, 1982.
Any expenses incurred in the administration of this Act, shall be charged upon and paid out of the Consolidated Fund.