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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. R150
The Revenue Act
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
TAX ON ELECTRICITY
AND CERTAIN OTHER PRODUCTS
In this Part
"dealer" means any person who in the province sells a taxable product or offers or keeps a taxable product for sale, and includes a person who in the capacity of a broker, or commission agent takes orders for or arranges for the delivery of a taxable product: ("marchand")
"director" means the Deputy Minister of Finance or any Assistant Deputy Minister of Finance or the Director of the Mining and Use Taxes Branch of the Department of Finance; ("directeur")
"domestic purchaser" means a purchaser who uses a taxable product in respect of which he is the purchaser solely to heat or serve a dwelling unit in which he resides; ("consommateur")
"farm buildings" means buildings situated on a parcel of land improved and used exclusively for the purpose of growing grain or forage crops, raising or keeping farm stock, growing horticultural crops including edible mushrooms, and the owner, tenant, lessee or occupant of the land derives income from the sale or disposal of the grain or forage, farm stock, horticultural crops or edible mushrooms raised, kept or grown on the land, and include farm residences on the land; ("bâtiments agricoles")
"farm stock" means
(a) cattle,
(b) sheep,
(c) goats,
(d) swine,
(e) poultry,
(f) fur-bearing animals kept in captivity for the production of fur,
(g) bees, or
(h) horses, other than horses boarded for another person or kept or raised for showing, riding, racing or amusement; ("animaux de ferme")
"minister" means the Minister of Finance: ("ministre")
"person" includes a partnership, Her Majesty in right of Manitoba and all government boards and agencies and Crown corporations established and administered by or on behalf of Her Majesty in right of Manitoba; ("personne")
"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 without limiting the generality of the foregoing includes
(a) where the taxable product is purchased, manufactured, or otherwise acquired outside the province and is subsequently brought into or received in the province to be used or consumed in the province, the cost to the purchaser of transportation and any other costs whatsoever in connection with the taxable product; and
(b) 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;
whether or not the costs, tax, levy, or duty mentioned in clauses (a) and (b) are shown separately on any invoice or in the books of the seller or of the purchaser; 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(13) an amount on which the tax is payable, means the amount so fixed; ("prix d'achat")
"purchaser" means any person who
(a) purchases, acquires, commands, receives, or produces, a taxable product in the province; or
(b) brings into the province, or causes to be brought into the province, or receives delivery in the province of, a taxable product acquired or produced by him outside the province,
for his own consumption or use within the province, or for consumption or use within the province by others at his expense, or on behalf of, or as the agent for, a principal who desires to purchase, acquire, or receive, the taxable product, for consumption or use by him within the province at his expense, but does not include a person who acquires the taxable product for resale or who produces the taxable product for sale except in so far as the taxable product is consumed or used by him or by others at his expense; and "purchase" has a corresponding meaning; ("acheteur")
"regulations" means regulations made under this Part; ("règlements")
"tax" means the tax imposed under section 3; ("taxe")
"taxable product" means
(a) electricity;
(b) natural gas and manufactured gas that is used as a fuel and that is delivered to the purchaser by means of a gas pipe distribution system; and
(c) coal and derivatives thereof, except as excluded under the regulations. ("produit taxable")
The tax under section 3 shall be computed to the nearest cent, and every fraction of less than 1/2 cent shall not be counted and every fraction of 1/2 cent or more shall be counted as one cent.
Subject to subsections (2), (3), (5), (6), (7), (8) and (9) every purchaser shall pay to Her Majesty in right of Manitoba, a tax which shall be computed at the rate of 6% of the purchase price of the taxable product purchased by him.
Electricity used for heating dwellings exempt
Notwithstanding subsection (1), where electricity purchased by a domestic purchaser is used by him solely to heat a dwelling unit in which he resides, the domestic purchaser is exempt from the payment of the tax imposed under subsection (1) in respect of the purchase price of the electricity.
Electricity used for heating farm buildings exempt
Notwithstanding subsection (1) but subject to subsection (4), where electricity purchased by a person is used solely to heat farm buildings, or is used to produce heat for grain dryers on farm land, the purchaser is exempt from the payment of the tax imposed under subsection (1) on the purchase price of the electricity.
Certain heating of farm buildings not exempt
Where a purchaser uses electricity or natural gas or manufactured gas to heat a building or to produce heat for a grain dryer that is exempt under subsection (3) or (6) by reason of the building, being a farm building or the grain dryer being situated on farm land, and the electricity, or natural or manufactured gas is used for other purposes and not solely for heating the farm building or producing heat for the grain dryer, the exemption, subject to subsections (5) and (7), does not apply.
Gas used for heating dwellings exempt.
Notwithstanding subsection (1), where natural or manufactured gas purchased by a domestic purchaser is used by him solely to heat a dwelling unit in which he resides, the domestic purchaser is exempt from the payment of the tax imposed under subsection (1) in respect of the purchase price of the gas.
Gas used for heating farm buildings exempt.
Notwithstanding subsection (1) but subject to subsection (4), where natural or manufactured gas is purchased solely to heat farm buildings or to produce heat for grain dryers situated on farm land, the purchaser is exempt from the tax imposed under subsection (1) on the purchase price of the natural or manufactured gas.
Joint use of taxable and non-taxable electricity.
Notwithstanding subsections (1), (2) and (3), where a purchaser purchases electricity partly for the exempt use under subsection (2) or (3) and partly for other purposes, the purchaser is exempt from the payment of tax imposed under subsection (1) with respect to 80% of the total purchase price of electricity purchased by him.
Joint use of taxable and non*taxable gas.
Notwithstanding subsections (1), (5) and (6), where a purchaser purchases natural or manufactured gas partly for the exempt use under subsection (4) or (5) and partly for other purposes the purchaser is exempt from the payment of tax imposed under subsection (1) with respect to 80% of the total purchase price of the natural or manufactured gas purchased by him.
Domestic purchasers of coal, etc., exempt.
Notwithstanding subsection (1), every domestic purchaser of coal and the derivatives thereof is exempt from the payment of the tax imposed under subsection (1) in respect of the coal and derivatives thereof purchased by him.
Where the purchaser acquires the taxable product from a dealer, he shall pay any tax payable in respect thereof to the dealer at the time the purchase price of the taxable product is due and payable.
Where taxable product acquired otherwise than from a dealer.
Where the purchaser acquires the taxable product in respect of which he is required to pay a tax otherwise than from a dealer, and has not paid the tax, he shall forthwith send to the minister a report thereon in such form and containing such information as may be prescribed in the regulations; and he shall at the same time pay the tax payable in respect thereof to the minister.
Consumption of taxable product on which tax not paid.
Every person who consumes within the province taxable products acquired by him for resale, or who consumes within the province taxable products produced by him within or without the province in the normal course of his business, shall for the purpose of this Part be conclusively deemed to have purchased the taxable products within the province.
Minister may determine the purchase price.
Where
(a) a taxable product was acquired other than from a dealer; or
(b) a taxable product was acquired from a person who is not dealing with the purchaser at arm's length in the meaning that that expression has in the Income Tax Act (Canada) as amended from time to time; or
(c) a person consumes within the province a taxable product produced by him within or without the province in the normal course of his business;
and the minister determines that the tax paid in respect of the taxable product is not the proper amount of tax, or that no tax has been paid in respect of the taxable product because,
(d) the amount taken as the purchase price was not a fair valuation of the consideration that passed as the price of the taxable product; or
(e) the actual purchase price cannot be determined; or
(f) no price was paid;
the minister may fix an amount which, when so fixed by him, shall be conclusively deemed to be the purchase price of the taxable product on which any tax payable in respect thereof shall be calculated and payable, and shall notify the purchaser of the amount so fixed.
No dealer shall sell a taxable product, or offer or keep a taxable product for sale, or carry on the business of, or act as, a dealer, broker, or commission agent in a taxable product, unless he is the holder of a valid subsisting licence for that purpose issued to him by the minister.
Authority to minister to issue licence.
The minister may issue licences as required under subsection (1); and he may issue the licences subject to such terms and conditions, not inconsistent with this Part and the regulations, as he may prescribe: and every licence shall be in such form, and shall contain such information, as may be required in the regulations.
A licence issued under subsection (2) is not transferable.
Refund of tax on certain taxable products.
Where, in the opinion of the minister, a taxable product is to be used, or is used, by the buyer thereof directly in producing other taxable products for sale to purchasers, the minister may refund to the purchaser thereof the tax paid by the purchaser in respect thereof upon the written application of the purchaser made in accordance with the regulations.
Where, in the opinion of the minister, gasoline, as defined in The Gasoline Tax Act, is to be used, or is used, by the purchaser thereof directly in producing a taxable product for sale to a purchaser, the minister may refund to the purchaser of the gasoline any tax paid under The Gasoline Tax Act by the purchaser in respect of that gasoline upon the written application of the purchaser made in accordance with the regulations.
Where, in the opinion of the minister, motive fuel, as defined in The Motive Fuel Tax Act. is to be used, or is used, by the purchaser thereof directly in producing a taxable product for sale to a purchaser, the minister may refund to the purchaser of the motive fuel any tax paid by the purchaser thereof in respect of the motive fuel under The Motive Fuel Tax Act and not refunded under that Act, upon the written application of the purchaser made in accordance with the regulations.
Each dealer shall, at the time the tax is payable under section 3, collect the tax from each purchaser who purchases a taxable product from him and shall, in the manner and at the times prescribed by the regulations, remit to the minister the tax so collected by him.
Payment of tax where purchase not by purchaser.
Subject to the regulations, where a dealer sells a taxable product to a person other than a dealer licensed under section 4 who alleges that he is not a purchaser within the meaning of this Part, the dealer shall nevertheless require the person to pay the tax but, if the minister is satisfied upon evidence submitted to him that that person was not a purchaser, he shall refund the amount of the tax paid in respect of the purchase to that person.
Tax deemed to be collected by dealer.
No deduction, allowance, or credit shall be made or given to any dealer in respect of tax payable under this Part by a purchaser and that the dealer failed to collect from the purchaser.
Payments applied first on tax.
Any payment made by a purchaser to a dealer shall be, and shall be conclusively deemed to have been, applied first to payment of the tax; and only after the tax has been paid shall any part of the payment be applied on the purchase price of the taxable product.
The minister may audit the books and records of any dealer, or may cause such an audit to be made.
Books to be available within province.
Each dealer shall make his books and records available within the province for the purposes of allowing an audit to be made under subsection (5), or shall make such other arrangements with the minister to make them available as may be satisfactory to the minister.
Each dealer shall make returns to the minister in such manner, in such form, containing such information, and at such times, as may be prescribed in the regulations.
Every dealer is an agent of Her Majesty for the purposes of the collection of the tax and the remission of the moneys collected as proceeds of the tax.
Every dealer is, for the purposes of collecting and remitting the tax but not otherwise, a revenue officer within the meaning of The Financial Administration Act, and is subject to the duties and liabilities of a revenue officer under that Act.
The minister may require any dealer, or any other person responsible for the collection of the tax or the receipt or remission of moneys that are the proceeds thereof, to enter into a bond to Her Majesty in right of Manitoba for the due performance of his duties in collecting and remitting the tax as provided in this Part and the regulations: and the bond shall be in such sum, with such sureties, and subject to such conditions, as the minister may require, but in no event shall be in an amount greater than an amount equal to six times the sum or the estimated sum of tax that would, in the opinion of the minister, normally be collected by the dealer or person each month under this Part.
In lieu of a bond required under subsection (3), a dealer may deposit cash or securities in a like amount with the minister under such conditions as the minister may prescribe.
A dealer required under subsection (3) to furnish a bond who fails to do so in the time prescribed by the minister, and fails to deposit cash or securities under subsection (4), is guilty of an offence and liable, on summary conviction, to a fine of not more than $50., or to imprisonment for a term not exceeding one week, or to both; and each day during which any such offence continues constitutes a separate offence.
The minister may pay to each dealer, as remuneration for collecting the tax ard remitting the proceeds thereof to the minister, such commission as may be fixed in the regulations; and, except where the commission in respect of a period or periods of time is forfeited as provided in the regulations, the dealer may deduct any commission to which he may be entitled under this Part and the regulations from the amount otherwise to be remitted by him to the minister under this Part.
Agreement respecting estimated tax remissions.
In order to facilitate the collection of the tax, and the remission of moneys that are the proceeds thereof, the minister may enter into an agreement with a dealer providing that the amount of moneys to be remitted by the dealer during any specified period as proceeds of the tax will be estimated as provided in the agreement, and payment of sums on account of that amount will be made as set out in the agreement.
Computation of proceeds of tax.
At the end of each period specified in the agreement, the minister shall determine the amount of moneys received, or that in the opinion of the minister should have been received as proceeds of the tax during that period by the dealer who is a party to the agreement, and that amount shall be deemed to have been received by him.
Where it appears to the minister that the amount remitted by a dealer in respect of any period specified in the agreement exceeds the amount deemed to have been received by that dealer during that period, the minister shall forthwith repay to the dealer the amount of the excess; or, at the option of the dealer, the minister may retain that amount and apply it in reduction of amounts that subsequently become due under this Part from that dealer.
Where it appears to the minister that the amount remitted by a dealer in respect of any period specified in the agreement is less than the amount deemed to have been received by the dealer during that period, the minister shall notify the dealer of the amount of the deficiency, and the dealer shall within one week after receiving the notice, pay that amount to the minister.
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.
Where the minister makes an agreement or an arrangement respecting the reciprocal exchange of information under subsection (1), the minister shall publish in the Manitoba Gazette a notice setting out the terms of the agreement or arrangement.
Allowances to dealers for losses.
In computing the amount of moneys deemed to have been received as proceeds of the tax in any period by a dealer, the minister may
(a) require the dealer to account strictly for purchases and sales of taxable products made by him, and to justify and establish, to the satisfaction of the minister, any claim made by him for allowances of losses of taxable products caused by leakage, accident, theft, or any similar cause; or
(b) allow the dealer such allowances as may be fixed in the regulations for losses of the taxable products caused by leakage, accident, theft, or any similar cause.
The amount of any moneys payable by a dealer to the minister as provided in section 6 is a debt due to the government and is recoverable as such in a court of competent jurisdiction in the name of Her Majesty in right of Manitoba represented therein by the minister.
The amount of the tax that any purchaser becomes liable to pay is a debt due from the purchaser to the government and is 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, by agreement, or under this Part or the regulations, any debt due to the government under this Part is to be paid or remitted
(a) by a dealer to the minister; or
(b) by a purchaser to the government;
the debt bears interest
(c) at the rate of 9% per year; or
(d) at such other rate per year as the Lieutenant Governor in Council may prescribe by regulations 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 rates shall not be effective until at least seven days after the date on which the rate is prescribed.
For purposes of the enforcement procedures set out in subsections (9) to (13) and section 13, 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 Part;
(b) the person has received an assessment or estimate and
(i) has not appealed the assessment or estimate within the time period required by this Part, 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 Part has 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 Part.
The expression "debtor of the government" in subsection (4) includes the expression "person liable for the debt" and any similar expression contained in subsections (9) to (13) and section 13.
Where any of the enforcement procedures set out in subsections (9) to (13) and section 13 have been used to recover moneys in the circumstances described in clause (4)(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 of 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 subsections (9) to (13) and section 13 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 (4), 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 (8).
Where, upon hearing an application under subsection (7), 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.
The amount of the debt due from any person to the government under this section binds, and is a lien and charge, in favour of the government on, all the property in the province, real or personal, of the person liable therefor.
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 person liable for the debt and certifying the amount thereof; and he may register the certificate in the land titles office of any land titles district; and from the time of the registration the certificate binds and forms a lien and 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 under subsection (10) 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 minister may issue a warrant for the amount of the debt due from any person to the government under this section, together with the costs, expenses, and poundage of the sheriff, directed to a sheriff, 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.
Lien in bankruptcy proceedings.
In case of the insolvency of any person, or the liquidation of any company, from whom or from which a debt is due under this section, the amount of the debt is a lien and charge upon the estate and assets of that person or company, 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 any payment, to a dealer or purchaser indebted to Her Majesty in right of Manitoba in respect of tax collected or payable under this Part, the minister may, by registered letter or by letter served personally demand of that person that the moneys otherwise payable by him to the dealer or purchaser be paid, in whole or in part, to the minister on account of the liability of the dealer or purchaser under this Act.
Discharge of liability to debtor.
The receipt of the minister for moneys paid pursuant to a demand made under subsection (1) constitutes a good and sufficient discharge of the liability of the person to the dealer or purchaser to the extent of the amount stated in the receipt.
Liability to pay under demand.
Any person discharging any liability to a dealer or purchaser after receipt of a demand under subsection (1) is personally liable to Her Majesty in right of Manitoba to the extent of the lesser of
(a) the liability discharged as between him and the dealer or purchaser; or
(b) the liability of the dealer or purchaser for tax that has been collected on behalf of Her Majesty in right of Manitoba but not remitted, or that is due and payable under this Part, including interest.
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 dealer or purchaser, 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 the persons who are, or are about to become, indebted or liable to a dealer or purchaser, carry on business in partnership, the registered or other letter under subsection (1) maybe addressed to the partnership name and, a letter under subsection (1) shall be deemed to have been served personally on all 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.
Every dealer shall keep such records, in such form, and containing such information, as from time to time may be prescribed in the regulations; and without limiting the generality of the foregoing, shall keep records of all purchases and sales by him of taxable products whether for consumption or for resale.
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 person, or any premises where the officer or peace officer has reasonable and probable grounds to believe that business records are kept,
(a) for the purpose of ascertaining whether tax has been, or is being, paid, collected or remitted by any person, or the amount of tax payable by any person; or
(b) to inspect or examine the books, records, documents, engines, machinery and premises of any person, for the purpose of ascertaining the quantities of taxable products which
(i) were bought, used or sold by that person during any period in respect of which a return is required to be made under this Part or the regulations, or
(ii) are at that time being bought, used or sold by that person; or
(c) to ascertain whether the person possesses, or possessed, taxable products in respect of which tax is payable; or
(d) to make such inquiries and inspections of the premises as the officer or peace officer reasonably requires for the purposes of this Part; or to do two or more of the things mentioned in clauses (a) to (d); and the person shall, at that time, produce for inspection by the officer or peace officer such books, records, documents, containers and receptacles as the officer or peace officer may require, and any taxable products which the person possesses.
A justice who is satisfied by information upon oath that there are reasonable and probable grounds to believe that
(a) a violation of this Part 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 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 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 or produced in accordance with this section, the person by whom it has been seized, inspected or examined, 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 proved in the ordinary way.
Where any book, record, document 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 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 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 the purposes of
(a) existing or anticipated court proceedings arising out of an alleged violation of this Part or the regulations; or
(b) a continuing investigation into a suspected violation of this Part 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 thing, to the person from whom it was seized or by whom it was produced.
Where a dealer or purchaser fails to make a return or remittance as required under this Part or the regulations, or where in the opinion of the director, his return is not substantiated by his records, the director may make an estimate of the amount of the tax collected or deemed to have been collected by the dealer, or payable by the purchaser, for which he has not accounted, and, subject to sections 18 and 19, the amount so estimated shall thereupon be conclusively deemed to be the tax collected or payable by him, and for which he has not accounted.
Where the director has made an estimate under subsection (1), he shall, by notice in writing either mailed to or served on the dealer or purchaser, or his heirs, administrators, executors or assigns, or his custodian or trustee in bankruptcy, require the dealer or purchaser to remit to the minister, or otherwise account for, within 30 days after the date on which the notice is mailed or served, the amount payable to Her Majesty in right of Manitoba as estimated under subsection (1); and thereupon the dealer or purchaser shall, within that time, pay that amount to Her Majesty in right of Manitoba or otherwise account therefor to the satisfaction of the director.
An affidavit or statutory declaration by the person serving or mailing a notice pursuant to subsection (2) stating that he has served or mailed the notice is prima facie proof that the amount stated in the notice is due and owing; and the onus of proving otherwise rests on the dealer or purchaser.
Where, upon the inspection, examination or audit of books, records, or documents, made under authority of section 6 or 15, it appears to the satisfaction of the director that any tax collected or deemed to have been collected by a dealer has not been remitted in accordance with this Act and the regulations, or any tax payable by a purchaser has not been paid in accordance with this Act and the regulations, the director may make an assessment of the amount of the tax collected or deemed to have been collected by the dealer, or payable by the purchaser, and, subject to sections 18 and 19, the amount so assessed shall be conclusively deemed to be the amount of the tax collected by the dealer, or payable by the purchaser; and subsections 16(2) and (3) apply to the assessment, with such modifications as the circumstances require.
Where a person disputes the amount of an estimate made under section 16 or an assessment made under section 17, he may personally or by his agent, within 60 days after receipt of the notice of the estimate or 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 shall affirm, rescind, or amend the estimate or the assessment and forthwith notify the appellant of his decision.
Appeal to Court of Queen's Bench.
Where a person is dissatisfied with the decision of the minister, given under section 18, he may appeal therefrom by application to the Court of Queen's Bench and the onus shall be on the person to disprove the estimate or the assessment.
An application under subsection (1) shall be made within 60 days of the date on which the notice of the decision appealed from was given and the appellant shall within seven days of making an application under subsection (1) serve upon the minister a written notice of appeal signed by himself or his solicitor setting forth the grounds of the appeal.
Within 14 days after the notice of appeal is served upon the minister, the appellant shall set the matter down for trial or obtain an appointment for trial, and serve upon the minister, not less than 14 days before the date of the trial, notice thereof.
Upon an appeal under this section, the court shall hear evidence adduced by the appellant and the minister, and may affirm, set aside, or vary the decision appealed.
The costs of the appeal shall be in the discretion of the court, and the court may make an order respecting costs in favour of or against Her Majesty in right of Manitoba.
Estimate or assessment not affected by irregularity.
An estimate or assessment made by the director under section 16 or 17 shall not be varied or disallowed because of any irregularity, informality, omission, or technical error, on the part of any person in the observation of any directory provision of this Act or the regulations up to the date of the issuing of the notice of the estimate or the assessment.
Neither the giving of a notice of appeal by any person nor any delay in the hearing of an appeal shall in any way affect the due date, the interest, or penalties, or any liability for payment provided under this Act in respect of any tax due and payable or that has been collected on behalf of Her Majesty in right of Manitoba, that is the subject of the appeal, or in any way delay the collection of the same; but in the event of the estimate or assessment of the director being set aside or reduced on appeal, the minister shall refund any amount that has been paid or collected on behalf of Her Majesty in right of Manitoba as tax or interest in respect of the estimate or assessment or the amount thereof by which it is reduced.
Where a person has appealed a notice of estimate or an assessment issued under subsection 16(2) or 17 and the estimate or assessment is rescinded, set aside, varied or amended, which results in a refund of all or part of the amount paid, interest shall be paid on the amount refunded from the time of receipt to the time of the refund at the same rate as fixed by the Lieutenant Governor in Council under clause 12(3)(d).
Dealer's right to collect tax.
Where under this Part a dealer is deemed to have collected the tax payable by a purchaser in respect of a taxable product, and the dealer has not actually collected the tax, if the dealer has remitted to the minister an amount in respect of the sale equivalent to the amount of the tax, that amount is a debt due from the purchaser to the dealer and is recoverable as such in a court of competent jurisdiction.
A person who contravenes any provision of this Part or the regulations, or who fails to comply with any provision of this Part or the regulations, or with any order of the minister made under this Part or the regulations, is guilty of an offence and is liable, on summary conviction, where no other penalty is prescribed,
(a) for a first offence, to a fine of not less than $50.; and
(b) for a subsequent offence, to a fine of not less than $100. or to imprisonment for a term not exceeding three months, or to both.
In any prosecution for failure to pay the tax or to collect or remit the tax, the onus of proving that the tax was paid, collected, or remitted to the minister, as the case may be, is upon the accused.
Tax paid to Consolidated Fund.
All moneys received by the minister in any fiscal year 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.
To the special account mentioned in subsection (1), there shall be charged as paid
(a) all remuneration paid to dealers under this Part;
(b) all refunds authorized under section 5 and subsection 6(2); and
(c) all deductions for allowances to dealers as authorized in section 11;
and all expenditures of the character similar to those mentioned in clauses (a) to (c) that have the effect of reducing the proceeds of the tax.
For the purpose of carrying out the provisions of this Part according to their intent, the Lieutenant Governor in Council may make such regulations and orders as are ancillary thereto and are not inconsistent therewith; and every regulation and order 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 and orders,
(a) prescribing the forms, records, and returns, required by, or to be used for the purposes of, this Part or the regulations;
(b) prescribing the method of collection and remittance of the tax and any other conditions and requirements affecting such collection and remittance;
(c) determining the remuneration and conditions thereof to be paid to dealers under this Part for collecting and remitting the tax;
(d) prescribing the terms and conditions under which dealers are entitled to remuneration, and providing for the forfeiture of any such remuneration to which dealers would otherwise be entitled for failing to comply with any such terms and conditions;
(e) defining any expression used in this Part and not herein defined;
(f) excluding certain classes of coal or derivatives thereof from the meaning of "taxable product" ;
(g) providing for the calculation of tax where the purchase price of the taxable product is charged by monthly or other periodic billings;
(h) respecting the application for the issuing of, and the terms and conditions of licences issued under section 4 for dealers;
(i) authorizing the sale by dealers of taxable products to certain purchasers without the dealers collecting the tax, and providing for other means of collection;
(j) prescribing the form of applications for, and the manner of payment of, refunds;
(k) establishing a schedule of allowances that may be allowed to a dealer in respect of returns and records made and kept by him for such differences, if any, between the quantities of the taxable products that are from time to time received or produced by him, and that are sold by him, as are caused by leakage, accident, theft, and other similar causes incidental to his business as a dealer;
(l) prescribing the form of certificates of debts to the Crown that may be issued by the minister under section 12;
(m) requiring a dealer who is required to collect and remit the tax collected under this Act, and any other person required to remit tax directly to the Minister under this Act, to keep in addition to the records required under section 14, such other books, documents and records as may be required by the minister;
(n) respecting the retention or destruction, or both, of any of the books, records, documents or accounts required to be kept under the Act or the regulations.
A regulation made under this Part may be made retroactive.
SCHOOL TAX REDUCTION
In this Part
"minister" means the Minister of Finance; ("ministre")
"municipality" includes a local government district; ("municipalité")
"municipal taxes" includes all taxes assessed against lands and levied by or through a municipality; ("taxes municipales")
"parcel" means any amount of land that is entered as one entry on the real property tax roll of a municipality for the purposes of assessment and taxation, and that is a municipality as that expression is defined in Part IX of The Public Schools Act, but does not include any land entered on the real property tax roll that is
(a) railway property assessed under The Municipal Assessment Act; or
(b) pipe line property assessed under The Municipal Assessment Act; or
(c) power line, telephone line, or pipe line, or right-of-way therefor; ("parcelle")
"regulations" means the regulations made under this Part. ("règlements")
Subject as herein otherwise provided, where taxes levied against a parcel any year are paid, the municipality shall deduct from the amount of those taxes payable the lesser of
(a) 1/2 of that portion of the taxes levied in that year against that parcel for school purposes; or
(b) $50.;
and shall accept as payment in full of those taxes the amount thereof less the amount deductible under this subsection.
Co-operative housing corporations.
Where the taxpayer in respect of a parcel is a housing co-operative in which not less than 80% of the paid-up share capital is held by members of the co-operative who reside in dwelling units owned by the co-operative, the municipality may, in lieu of making the deduction for which provision is made in subsection (1), make a separate deduction calculated in the same manner as a deduction under subsection (1) in respect of each separate dwelling unit on the parcel occupied by a member of the housing co-operative on the basis of a proportionate division of the taxes levied against that parcel for school purposes equal to the proportionate value of the dwelling units on the parcel.
Upon application being made by a municipality within the time and in the manner prescribed in the regulations, the minister shall pay to the municipality the total of the amounts that have been deducted by the municipality from the amounts payable as taxes levied against parcels in accordance with this section.
Each municipality shall give to each person paying municipal taxes a receipt therefor in a form prescribed in the regulations, and shall keep such record of payments and copies of receipts as are required under the regulations.
The minister, or any person appointed by him for that purpose, may at any reasonable time audit the books of any municipality which applied for payment under section 26, and for that purpose each municipality shall make its books and records available on request.
Where any amount is paid to a municipality under this Part in excess of the amount which the minister is authorized to pay, the amount of that excess is a debt due from the municipality to the government and may be recovered in any court of competent jurisdiction.
Recovery of amounts improperly deducted.
Where any amount is deducted under section 26 from the taxes payable in respect of any parcel in excess of the amount that is authorized to be deducted, the amount of that excess is a debt due from the person liable to pay the taxes to the municipality and may be recovered by the municipality in the same manner as unpaid taxes.
Any person who knowingly applies for a deduction from taxes under this Part to which he is not entitled is guilty of an offence and is liable, on summary conviction, to a fine of not less than $50. or to imprisonment for a term not exceeding three months.
All payments made under this Part, and all costs of administering this Part, shall be paid out of the Consolidated Fund with moneys appropriated by an Act of the Legislature to be so paid and applied.
For the purpose of carrying out the provisions of this Part according to their intent, the Lieutenant Governor in Council may make such regulations and orders as are ancillary thereto and are not inconsistent therewith; and every regulation and order 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 and orders,
(a) respecting applications for payments under section 26, including the time within which such application shall be made;
(b) prescribing forms of receipts to be given by municipalities upon payment of municipal taxes;
(c) providing for cases and circumstances that may arise and for which no provision or no adequate provision is made in this Part;
(d) respecting information that may be required with respect to deductions of taxes payable by housing co-operatives and defining the expression "dwelling unit" for the purposes of subsection 26(2).