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The Tobacco Tax Act
This is an unofficial archived version of The Tobacco Tax Act
as enacted by SM 1988-89, c. 1 on October 19, 1988.

R.S.M. 1987, c. T80

The Tobacco Tax Act

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

Definitions.

1

In this Act

"collector" means a person appointed, or deemed to be, a collector under section 9; but does not include a deputy collector; ("collecteur")

"dealer" means any person who in the province sells tobacco or offers or keeps tobacco for sale, either by wholesale or by retail and includes a person referred to in subsections 9(2) and (3); ("marchand")

"deputy collector" means a person duly appointed by a collector under subsection 9(11), or deemed to have been appointed by him under subsection 9(12) for the purposes therein stated; ("collecteur adjoint")

"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")

"licence" means a licence issued by the minister under this Act; ("permis")

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

"package" means package, box, tin, or other container, in which tobacco is contained or sold at retail; ("paquet")

"peace officer" means a peace officer as defined in the Criminal Code (Canada); ("agent de la paix")

"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")

"purchaser" means any person who

(a) purchases or receives delivery of tobacco within the province, or

(b) in the case of a person residing or ordinarily resident or carrying on business in the province, brings into the province tobacco acquired outside of the province,

for his own use, or for use by others at his expense, or on behalf of, or as the agent for, a principal who desires to acquire the tobacco for use by him or other persons at his expense and includes 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; but does not include a person who acquires tobacco for resale; ("acheteur")

"retail dealer" means a dealer who sells tobacco, or offers or keeps tobacco for sale, directly to purchasers; ("détaillant")

"subsisting licence" means a licence that has not been suspended or cancelled and that has not expired; ("permis en vigueur")

"tax" means the tax imposed under section 2; ("taxe")

"tobacco" means tobacco in any form in which tobacco is consumed, and includes snuff; ("tabac")

"wholesale dealer" means any dealer other than a retail dealer. ("grossiste")

Imposition of tax.

2(1)

Every purchaser shall pay to Her Majesty in right of Manitoba, for the public use of the government, a tax which shall be computed at a rate of

(a) 4.6¢ on every cigarette purchased by him;

(b) 2 1/2¢ on every cigar purchased by him for a price at retail of not more than 6¢;

(c) 4¢ on every cigar purchased by him for a price at retail of more than 6¢ but not more than 9¢;

(d) 5¢ on every cigar purchased by him for a price at retail of more than 9¢ but not more than 12¢;

(e) 6¢ on every cigar purchased by him for a price at retail of more than 12¢ but not more than 15¢;

(f) 8¢ on every cigar purchased by him for a price at retail of more than 15¢ but not more than 18¢;

(g) 9¢ on every cigar purchased by him for a price at retail of more than 18¢ but not more than 21¢;

(h) 10¢ on every cigar purchased by him for a price at retail of more than 21¢ but not more than 24¢;

(i) 13¢ on every cigar purchased by him for a price at retail of more than 24¢ but not more than 30¢;

(j) 16¢ on every cigar purchased by him for a price at retail of more than 30¢ but not more than 39¢;

(k) 20¢ on every cigar purchased by him for a price at retail of more than 39¢ but not more than 48¢;

(l) 28¢ on every cigar purchased by him for a price at retail of more than 48¢ but not more than 70¢;

(m) 37¢ on every cigar purchased by him for a price at retail of more than 70¢ but not more than $1.;

(n) 55¢ on every cigar purchased by him for a price at retail of more than $1. but not more than $1.50;

(o) 80¢ on every cigar purchased by him for a price at retail of more than $1.50 but not more than $2.25;

(p) $1.15 on every cigar purchased by him for a price at retail of more than $2.25;

(q) 22¢ on every 1/2 ounce, or part of 1/2 ounce, of any tobacco purchased by him other than cigarettes or cigars where the package in which it is contained or sold at retail indicates thereon the weight of tobacco therein in units of measurement set out and defined in Schedule 2 of the Weights and Measures Act (Canada); and

(r) 1.6¢ on every gram, or fraction thereof, of any tobacco purchased by the purchaser other than cigarettes or cigars where the package in which it is contained or sold at retail indicates thereon the weight of tobacco expressed in the International System of Units (SI).

Tax payable when tobacco received.

2(2)

Where a purchaser acquires tobacco from a dealer, he shall pay the tax to that dealer at the time he receives the tobacco.

Tobacco acquired otherwise than from dealer.

2(3)

Where a purchaser acquires tobacco otherwise than from a dealer, and respecting which the tax has not been paid, he shall after the acquisition of the tobacco make a report to the minister in such form and containing such information as are prescribed in the regulations; and he shall, at the same time, pay to the minister the tax payable in respect of the tobacco.

Computation of tax.

2(4)

The tax payable on tobacco other than cigars shall be computed separately on every package.

Computation of tax - cigars.

2(5)

The tax payable on cigars shall be computed separately on the price at retail of each cigar, whether or not it is sold in a package.

Definition of "price at retail".

2(6)

In this section, for the purpose of determining the amount of tax payable on a cigar,

(a) where the purchaser acquires the cigar from a dealer, "price at retail" means the price paid by the purchaser for the cigar, but where that price is not known to the collector, means an amount equal to the sum of

(i) the price at which the cigar was sold at wholesale by a collector, and

(ii) an additional amount, representing the average mark-up by retail dealers in the province over the price at wholesale of cigars of that price, as determined in accordance with a formula or method of calculation prescribed in the regulations; and

(b) where the purchaser acquires the cigar otherwise than from a dealer, "price at retail" means the price paid by the purchaser for the cigar, but where that price cannot be determined or no price is paid for the cigar, the minister may fix the price at retail in respect of which the tax is payable.

Fraction of a cent not payable.

3

Where the total tax payable by any collector or deputy collector under this Act is a specific amount plus a fraction of a cent, the fraction of the cent is not payable.

LICENCES

Retail dealer's licence required.

4(1)

No person shall sell tobacco to purchasers, or carry on business or act as a retail dealer, in the province unless he is the holder of a subsisting licence for that purpose issued by the minister and is a collector or a deputy collector.

Wholesale dealer's licence required.

4(2)

No person shall carry on business or act as a wholesale dealer in the province, unless he is the holder of a subsisting licence for that purpose issued by the minister and is a collector or a deputy collector.

Identification required on vending machines.

4(3)

No person shall sell tobacco by the use of a vending machine unless each machine used by him is visibly identified with a label indicating the person's name, business address and retail dealer's tobacco licence number.

Licence to sell to retail dealer.

4(4)

No person shall, within the province, sell tobacco to a retail dealer unless the seller is the holder of a subsisting licence issued by the minister to a wholesale dealer.

Limitation on sales.

4(5)

No person shall, within the province, sell tobacco to a retail dealer unless that retail dealer is the holder of a subsisting licence issued by the minister to a retail dealer.

Application for dealer's licence.

4(6)

Every dealer desiring a licence to sell tobacco shall file with the minister an application therefor in the prescribed form.

Issue and form of licence.

5(1)

The minister may issue such licences as are authorized or required herein; and he may issue a licence subject to such terms and conditions not inconsistent with this Act or the regulations as he may prescribe, and every licence shall be in a form, and shall contain such information, as may be required in the regulations.

Fee for licence.

5(2)

Every licence shall be issued only on payment of such fee, or without fee, as may be prescribed in the regulations.

Absolute requirement of licence.

5(3)

A licence is in addition to any licence or authority required under any other Act of the Legislature.

Licence non-transferable.

5(4)

A licence is not transferable; and no person other than the person to whom it is issued, or his employee or agent duly authorized by him for the purpose, shall act thereunder or assume or take the benefit thereof.

Refusal to issue licence.

6

The minister may refuse to issue a licence to any person

(a) who has been convicted of an offence under this Act; or

(b) who refuses to undertake any duty relating to the collection of the tax payable under this Act, or the remission or payment of moneys collected as proceeds of the tax; or

(c) who refuses or neglects to comply with any provisions of this Act or the regulations or with any demand of the minister lawfully made hereunder; or

(d) who refuses or neglects to account for and pay as herein required moneys received by him as proceeds of the tax, or to carry out, observe, or perform, any provision of an agreement made under subsection 9(10); or

(e) who refuses or neglects to furnish a bond when so required under subsection 12(3).

Suspension of licence.

7(1)

Where, in his opinion, it is in the public interest to do so, the minister may suspend a licence for any period not exceeding 30 days; but if, during the period of the suspension, an appeal is made under section 8, the judge hearing the appeal may continue the suspension for such further period as he deems advisable.

Cancellation of licence.

7(2)

Where a licence is suspended or at any other time, the minister, subject as herein provided, may cancel a licence for any cause for which under section 6 he may refuse to issue a licence.

Hearing before suspension or cancellation.

7(3)

Before suspending or cancelling a licence, the minister shall cause to be served on the holder of the licence a notice

(a) stating his intention to suspend or cancel the licence and reasons therefor unless good reason is shown why he should not do so; and

(b) fixing a place, a time, and a day which shall not be earlier than one week after the date on which the notice is served unless the holder of the licence consents to an earlier day, where and when he will hear the holder of the licence or anyone on his behalf respecting the matter and permit him to show cause why the licence should not be suspended or cancelled.

Manner of service.

7(4)

The notice may be served on the holder of the licence personally, or may be sent to him by registered mail addressed to him at his address last known to the minister, and, in case of service by mail, it shall be deemed to have been served on the second day following the day on which it is mailed.

Decision of minister.

7(5)

Within one week after the hearing the minister shall advise the holder of the licence as to his decision.

Order suspending or cancelling licence.

7(6)

Where he decides to suspend or cancel a licence, the minister shall do so by written order, a copy of which shall be served on the holder of the licence in the manner required for service of a notice under subsection (4).

When order takes effect.

7(7)

An order made under subsection (6) shall take effect on the day it is served on the holder of the licence.

Right of appeal.

8(1)

A holder of a licence may appeal against an order suspending or cancelling his licence by application to a judge of the Court of Queen's Bench.

Hearing of appeal and decision.

8(2)

The hearing of the application shall be a trial de novo, and the judge may hear evidence and, by his order, vary, confirm, or rescind, the order of the minister.

Notice of appeal.

8(3)

No application under subsection (1) may be made unless notice thereof in writing has been given to the minister within 30 days next following the service of the order of the minister on the holder of the licence.

Stay of order.

8(4)

On application of the licence holder, a judge of the Court of Queen's Bench may stay the effect of the order against which the appeal is taken pending the hearing of the appeal.

COLLECTORS

Appointment of collector.

9(1)

The minister may appoint any person to be a collector under this Act.

Persons deemed to be collectors.

9(2)

A person who has not been appointed a collector under subsection (1) but who imports tobacco into the province or acquires or comes into possession of tobacco otherwise than from a wholesale dealer licensed in Manitoba or a collector licensed in Manitoba in excess of 10,000 cigarettes or 2,500 cigars or 45,000 grams of other tobacco products, shall, notwithstanding anything in this Act, be deemed to be a collector in respect of that tobacco, and shall immediately upon bringing that tobacco into the province or acquiring or coming into possession of that tobacco, make a report to the minister in such form and containing such information as may be prescribed in the regulations and pay the tax thereon as imposed under subsection 2(1) in the manner and at the time prescribed in the regulations.

Other persons deemed to be collectors.

9(3)

A person who has not been appointed a collector under subsection (1) but who imports tobacco into the province or acquires or comes into possession of tobacco otherwise than from a wholesale dealer licensed in Manitoba or a collector licensed in Manitoba in excess of 200 cigarettes but less than 10,001 cigarettes, 50 cigars but less than 2,501 cigars or 900 grams of other tobacco products but less than 45,001 grams of other tobacco products, shall, notwithstanding anything in this Act, be deemed to be a collector in respect of that tobacco, and shall immediately after bringing that tobacco into the province or acquiring or coming into possession of that tobacco, make a report to the minister in such form and containing such information as may be prescribed in the regulations and within seven days after bringing that tobacco into the province or acquiring or coming into possession of that tobacco pay the tax thereon as imposed under subsection 2(1).

Contravention of subsec. 9(2) or (3).

9(4)

In any prosecution for the contravention of subsection (2) or (3) possession of tobacco or tobacco products in excess of the minimum amounts specified in subsection (3) is deemed to be prima facie evidence of the importation, acquisition or possession of tobacco or tobacco products, other than from a wholesale dealer licensed in Manitoba or a collector licensed in Manitoba for the purpose of resale.

Seizure of goods.

9(5)

Any peace officer, or person appointed as an officer under this Act by the minister, who on reasonable and probable grounds believes that an offence is being committed under subsection (2) or (3) may, without warrant, seize any tobacco products or motor vehicle and trailer or anything that may be considered as evidence that an offence is being committed and shall take those things before a justice of the peace or provincial judge having jurisdiction, to be dealt with according to law.

Release of goods on payment of penalty.

9(6)

Notwithstanding any other provision under this Act or any other Act of the Legislature, tobacco products seized under this section may be released to the person from whom they were seized on payment within seven days of the seizure of double the tax applicable under subsection 2(1), in which case the tax payable under that subsection shall be deemed to be fully paid and satisfied.

Sale of seized tobacco.

9(7)

Where the person from whom tobacco products have been seized under this section fails to secure their release in accordance with subsection (6), the minister shall cause the tobacco products to be sold and the proceeds held, with interest to be paid thereon at a rate fixed from time to time by the Lieutenant Governor in Council, pending the outcome of a prosecution for an alleged contravention of subsection (2) or (3).

Payment after sale.

9(8)

Where tobacco products have been sold under subsection (7), the person from whom they have been seized may, at any time before entering a plea in a prosecution for an alleged contravention of subsection (2) or (3), agree to pay to the government double the tax payable under subsection 2(1), in which case

(a) the proceeds from the sale and the accumulated interest shall be applied firstly, towards the payment of the agreed amount and secondly, towards the expenses of the sale, with the surplus, if any, to be paid to the person; and

(b) the tax payable under subsection 2(1) shall be deemed to be fully paid and satisfied.

Disposition after prosecution.

9(9)

Where a prosecution for an alleged contravention of subsection (2) or (3) has been finally resolved, the proceeds from the sale referred to in subsection (7) and the accumulated interest shall

(a) if the accused has been convicted, be applied firstly, towards the amounts payable under subsection 26(1) or 26(2), and secondly, towards the expenses of the sale, with the surplus, if any, to be paid to the accused; or

(b) if the accused has been acquitted, be paid to the accused.

Agreements with collectors.

9(10)

The minister for and on behalf of the government may enter into an agreement with any collector setting forth the duties to be performed by the collector and such other matters as the minister may deem necessary or advisable.

Appointment of deputy collectors.

9(11)

A collector may appoint any licensed retail dealer or licensed wholesale dealer to be his deputy collector; and except in cases to which subsection (12) applies, he shall, on appointing a deputy collector, forthwith notify the minister in writing of the name and address of the person appointed.

Dealers deemed to be deputy collectors.

9(12)

Except where the dealer is himself a collector appointed under subsection (1), every dealer to whom tobacco is sold or delivered by a collector shall be deemed to have been appointed a deputy collector by that collector who makes the sale or delivery, and shall carry out and perform the duties imposed on a deputy collector under this Act and the regulations.

Minister may audit books.

9(13)

The minister may audit the books and records of any collector or deputy collector, or may cause such an audit to be made.

Books to be available within province.

9(14)

Each collector or deputy collector shall make his books and records available within the province for the purposes of an audit made under subsection (13), or shall make such other arrangements with the minister to make them available as may be satisfactory to the minister.

Reciprocal exchange of information.

9(15)

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.

Notice of arrangements, etc.

9(16)

Where the minister makes an agreement or an arrangement respecting the reciprocal exchange of information under subsection (15), the minister shall publish in the Manitoba Gazette a notice setting out the terms of the agreement or arrangement.

COLLECTION AND REMISSION OF TAX

Duty of collectors.

10(1)

Every collector shall collect the tax, or cause it to be collected, from each purchaser who purchases tobacco in respect of which the tax is payable from him or from a retail dealer or wholesale dealer who is a deputy collector appointed or deemed to have been appointed by him.

Duty of deputy collectors.

10(2)

Every retail dealer, and every wholesale dealer who is also a deputy collector, from whom tobacco is purchased in respect of which the tax is payable shall collect the tax from the purchaser thereof.

Tax deemed to have been collected.

10(3)

Where a dealer or a collector fails to collect tax which, under this Act, he is required to collect, he shall nevertheless be conclusively deemed to have collected the tax.

Payments applied first on tax.

10(4)

Any payment made by a purchaser to a dealer in respect of a purchase of tobacco 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 such payment be applied on the purchase price of the tobacco.

Reports on change of rate.

10(5)

Where, at the time of a change in rate of tax imposed under this Act, a dealer has tobacco in his possession, he shall prepare such reports as may be required under the regulations, and shall remit to the minister any tax collected on the sale of that tobacco to purchasers in a manner and at times prescribed in the regulations.

Remission of proceeds.

10(6)

Subject to subsection (7), a deputy collector who collects the tax from any purchaser as provided in subsection (2) shall, in the manner and at times agreed by the collector and the deputy collector, remit to the collector whose deputy collector he is the moneys collected as proceeds of the tax.

Remission of tax by certain collectors.

10(7)

A retail dealer who, under subsection 9(2) becomes a collector, shall remit directly to the minister all moneys collected by him as proceeds of the tax in respect of sales of tobacco that he has imported or acquired or that has come into his possession as mentioned in subsection 9(2); and in respect of the remission he shall comply with section 11.

Remission of tax by collectors.

11

Every collector shall, in the manner and at the times prescribed by the regulations, remit to the minister all moneys received by him under section 9 either directly from the purchasers or through deputy collectors as proceeds of the tax; and the remittance shall be accompanied by a return in such form, and containing such information, as is prescribed by the regulations.

Agents of Crown.

12(1)

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

Revenue officers.

12(2)

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

Requirement of bond.

12(3)

The minister may require any collector, or any deputy collector, 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 and discharge of his duties and payment of moneys received by him as proceeds of the tax.

Conditions of bond.

12(4)

The bond shall be in such sum, with such sureties, and subject to such conditions, as the minister requires.

Closure of premises.

12(5)

Where a person required to furnish a bond fails to do so, the minister, after two clear days' notice in writing of his intention to do so, given or mailed by registered mail to that person, may, by any person duly authorized by him for the purpose, enter upon the premises of that person and close them to the public until a bond is furnished as herein provided.

Agreement with collectors.

13(1)

In order to facilitate the collection of the tax, and the remission of moneys that are the proceeds thereof, the minister may include in an agreement with a collector, pursuant to subsection 9(10), a provision whereby the amount of moneys to be remitted by the collector 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.

13(2)

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 each collector who is a party to an agreement, and that amount shall be deemed to have been received by him.

Refund of excess payments.

13(3)

Subject to subsection (8), where it appears to the minister that the amount remitted by a collector, in respect of any period specified in the agreement, exceeds the amount deemed to have been received by that collector during that period, the minister shall forthwith repay to him the amount of the excess; or, at the option of the collector, the minister may retain that amount and apply it in reduction of amounts subsequently becoming due under this Act from that collector.

Payment of balance by collector.

13(4)

Where it appears to the minister that the amount remitted by a collector, in respect of any period specified in the agreement, is less than the amount deemed to have been received by the collector during that period, the minister shall notify the collector of the amount of the deficiency, and the collector shall within one week after receipt of the notice pay that amount to the minister.

Credit to collector for moneys not collected.

13(5)

In computing the amount of moneys received, or that shall be deemed to have been received, by a collector in any period, and that are required to be remitted by the collector, the minister may deduct from the amount to be remitted a sum equal to the proceeds of the tax collected by any deputy collector of that collector and not remitted by him to the collector, if the collector satisfies the minister that, by reason of the deputy collector having become bankrupt, or defalcated or absconded, or for some similar reason, the collector has not received and is unable to obtain, the proceeds of the tax so collected by the deputy collector as aforesaid.

Refund re accidental loss.

13(6)

Where a retail dealer, who is the holder of a valid licence issued under this Act, establishes to the satisfaction of the minister that tax has been remitted by him to the minister in respect of tobacco products which by reason of loss by fire, theft or other similar causes he is unable to recover from a purchaser, the minister may refund such tax to the retail dealer where

(a) the loss can be supported to the satisfaction of the minister; and

(b) the application for refund to the minister has been made within two years from the date the loss occurred.

Limitation on credit.

13(7)

No deduction, allowance, or credit, shall be made or given to any collector or deputy collector in respect of moneys payable hereunder by any purchaser as proceeds of the tax and that the collector or deputy collector has failed to collect from the purchaser.

Minister may refund excess payments.

13(8)

Where a person has remitted or paid a greater amount of money than was required by this Act to be remitted or paid by the person, the minister may refund the excess payment in accordance with the regulations.

Tax a debt from collector.

14(1)

The amount of any moneys payable by a collector to the minister as provided in section 11 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.

Tax a debt from dealer.

14(2)

The amount of any moneys required, under subsection 10(6) to be remitted by a deputy collector to a collector, 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.

Tax a debt to the Crown.

14(3)

The amount of the tax that any purchaser or user becomes liable to pay is a debt due from the purchaser or user 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.

Interest on debt.

14(4)

From and after the date on which, by agreement or under this Act or the regulations, any debt due to the government under this Act is to be paid or remitted

(a) by a collector to the minister; or

(b) by a deputy collector to a collector; or

(c) by a purchaser to the government;

the debt bears interest

(d) at the rate of 9% per year; or

(e) 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 rate shall not be effective until at least seven days after the date on which the rate is prescribed.

Interest on certain refunds.

14(5)

Where a person has appealed a notice of estimate or an assessment under section 21 or 22 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 14(4)(e).

Who is a debtor.

14(6)

For purposes of the enforcement procedures set out in subsections (11) to (15) and sections 15 to 17, 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 or estimate and

(i) has not appealed the assessment or estimate 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.

(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.

Equivalent expressions.

14(7)

The expression "debtor of the government" in subsection (6) includes the expression "person liable for the debt" and any similar expression contained in subsections (11) to (15) and sections 15 to 17.

Where court action commenced.

14(8)

Where any of the enforcement procedures set out in subsections (11) to (15) and sections 15 to 17 have been used to recover moneys in the circumstances described in clause (6)(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.

14(9)

Where any of the enforcement procedures set out in subsections (11) to (15) and sections 15 to 17 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 (6), 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 (10).

Order of restitution.

14(10)

Where, upon hearing an application under subsection (9), 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.

Debts to Crown a lien on assets.

14(11)

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 and personal, of the person liable therefor.

Certificate of debts and registration.

14(12)

The minister may issue a certificate, in a form prescribed by the regulations, showing the minister's address for service of notice, the name and address of the person liable for the debt and certifying the amount thereof; and may register the certificate in the Land Titles Office of any Land Titles District and from the time of the registration the certificate except as hereinafter mentioned binds and forms a lien and charge on all lands of the person liable against which the certificate is registered by instrument charging specific land, and, while registered in the general register against all lands of the person liable in the Land Titles District in which the certificate is registered that are held in a name identical to that of the person liable set out in the certificate whether or not the lands are registered under The Real Property Act.

Realization of lien.

14(13)

The certificate 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.

Warrant for goods.

14(14)

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.

14(15)

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.

Sale of goods by auction.

15(1)

Subject to subsection (3), goods and property seized under a warrant issued in accordance with section 14 shall be kept for 10 days at the cost and charges of the debtor, and, if the debtor does not pay the sum due, together with the costs and charges within the 10 days, the goods and property seized under the warrant may be sold by public auction.

Notice of sale.

15(2)

Except in the case of perishable goods or property seized under a warrant issued in accordance with section 14, 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 at least once in a local newspaper of general local circulation.

Sale of perishable goods.

15(3)

In the case of perishable goods or property, the sheriff making the seizure under a warrant issued in accordance with section 14 shall give notice to the debtor of his intention to sell the goods or property, and the same shall be sold as soon as reasonably practical and neither the sheriff nor the minister is liable in damages for any loss occurring which would not have occurred if there had been no seizure.

Disposal of surplus.

15(4)

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 if debtor leaving Manitoba.

16(1)

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 liable; 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.

16(2)

Non-payment of the tax within the specified time renders the goods and property of the debtor liable to seizure by the sheriff of the district in which the goods and property of the debtor are situated.

Certificate to authorize seizure.

16(3)

A certificate of non-compliance with any such demand, 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.

Sale of goods seized.

16(4)

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 15.

Minister may order payment.

17(1)

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 collector, deputy collector or a purchaser indebted to Her Majesty in right of Manitoba in respect of tax collected or payable under this Act, the minister may, by registered letter or by a letter served personally, demand of that person that the moneys otherwise payable by him to the collector, deputy collector or purchaser be paid, in whole or in part, to the minister on account of the liability of the collector, deputy collector or purchaser under this Act.

Discharge of liability to debtor.

17(2)

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 collector, deputy collector or purchaser to the extent of the amount stated on the receipt.

Liability to pay under demand.

17(3)

Any person discharging any liability to a collector, deputy collector 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 collector, deputy collector or purchaser; or

(b) the liability of the collector, deputy collector 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 the Act, including interest.

Personal service.

17(4)

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.

17(5)

Where a person who is, or is about to become, indebted or liable to a collector, deputy collector 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.

17(6)

Where the persons who are, or are about to become, indebted or liable to a collector, deputy collector or purchaser, carry on business in partnership, the registered or other letter under subsection (1) may be 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.

RECORDS AND REMUNERATION

Records of dealers.

18(1)

Every dealer shall keep

(a) a record of all purchases and sales of tobacco made by him and of his inventory of tobacco; and

(b) any other records and documents in support of the business carried on by him required of him under the regulations;

showing such information as may be prescribed in the regulations.

Absorption of tax prohibited.

18(2)

No retail dealer shall advertise, or hold out, or state to the public or to any consumer, directly or indirectly, that the tax or any part thereof will be assumed or absorbed by the retail dealer, or that it will not be considered as an element in the price to the consumer or, if added, that it or any part thereof will be refunded.

Remuneration of collectors.

19(1)

Subject to subsection (2), from and out of the Consolidated Fund, the Minister of Finance may pay, as remuneration for the collection and remission of the moneys that are the proceeds of the tax, such commissions as may be fixed in the regulations.

Agreement to deduct remuneration.

19(2)

In lieu of paying remuneration as provided in subsection (1), the minister may enter into an agreement with any collector, under which the collector may deduct the amounts payable by the minister as remuneration from the amounts payable by the collector to the minister as proceeds of the tax; and the agreement may be included as part of an agreement made under subsection 9(10).

INSPECTION, SEARCH AND SEIZURE

Right to inspect.

20(1)

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 the tax has been, or is being, paid, collected or remitted by any person, or the amount of the tax payable by any person; or

(b) to inspect or examine the books, records, documents, and premises of any person, for the purpose of ascertaining the quantities of tobacco 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 Act 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, tobacco in respect of which the 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 Act;

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 and documents as the officer or peace officer may require, and any tobacco which the person possesses.

Warrant to enter and seize.

20(2)

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, quantity of tobacco 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, tobacco or thing, and to seize and retain it for production in any court proceedings.

Copies as evidence.

20(3)

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 proven in the ordinary way.

Return of books.

20(4)

Where any book, record, document, tobacco 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 tobacco or thing, to the person from whom it was seized or by whom it was produced, within 180 days of the seizure or production.

Extension by judge.

20(5)

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 Act or the regulations; or

(b) a continuing investigation into a suspected violation of this Act or the regulations.

Decision final.

20(6)

The decision of the judge under subsection (5) is final and binding and there is no appeal therefrom.

Where extension rejected.

20(7)

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 tobacco or thing, to the person from whom it was seized or by whom it was produced.

Estimate of tax owing.

21(1)

Where a collector, dealer or purchaser fails to make a return or remittance as required by this Act 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 collector or the dealer, or payable by the purchaser, for which he has not accounted, and, subject to sections 23 and 24, 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.

Notice of estimate.

21(2)

Where the director has made an estimate under subsection (1), he shall, by notice in writing either mailed to or served on the collector, dealer or purchaser, or his heirs, administrators, executors or assigns, or his custodian or trustee in bankruptcy, require the collector, 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 collector, 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 minister.

Evidence of serving notice.

21(3)

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 collector, dealer or purchaser.

Assessment.

22

Where, upon the inspection, examination or audit of books, records, or documents, made under authority of section 9 or 20, it appears to the satisfaction of the director that any tax collected or deemed to have been collected by a collector or 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 collector or dealer, or payable by the purchaser, and, subject to sections 23 and 24, the amount so assessed shall be conclusively deemed to be the amount of the tax collected by the collector or dealer, or payable by the purchaser; and subsections 21(2) and (3) apply to the assessment, with such modifications as the circumstances require.

Appeal to minister.

23(1)

Where a person disputes the amount of an estimate made under section 21 or an assessment made under section 22, 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.

Form of notice of appeal.

23(2)

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.

Minister to consider appeal.

23(3)

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 Queen's Bench.

24(1)

Where a person is dissatisfied with the decision of the minister given under section 23, he may appeal therefrom by application to the Court of Queen's Bench, and the onus is on the person to disprove the estimate or the assessment.

Notice of appeal.

24(2)

An application under subsection (1) shall be made within 60 days of the date on which 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 the appeal signed by himself or his solicitor setting forth the grounds of the appeal.

Trial.

24(3)

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.

Powers of court.

24(4)

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.

Costs.

24(5)

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 not affected by irregularity.

25(1)

An estimate or assessment made by the director under section 21 or 22 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.

Effect of appeal.

25(2)

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 minister 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.

OFFENCES AND PENALTIES

General offence and penalty.

26(1)

Subject to subsection (2), every person who contravenes any provision of this Act or the regulations, or makes a false statement on any application for a licence or any return required to be made under this Act or the regulations, is guilty of an offence and is liable,

(a) in the case of a first offence, to a fine of not less than $100. and not more than $150. or to imprisonment for a term not exceeding three months, or to both; and

(b) in the case of a second or subsequent offence to a fine of not less than $500. and not more than $750. or to imprisonment for a term not exceeding six months, or to both;

and, in addition to the penalties imposed under clause (a) or (b) the convicting justice shall order the convicted person to pay to Her Majesty in right of Manitoba an amount equal to double the tax payable under section 2 in respect of the tobacco in respect of which the offence was committed and upon payment of that amount, and any fine imposed under clause (a) or (b), the tax payable under section 2 in respect of the tobacco shall be conclusively deemed to be fully paid and satisfied.

Penalty for offence under subsection 9(2).

26(2)

Every person who fails to comply with subsection 9(2) is guilty of an offence and liable,

(a) in the case of a first offence, to a fine of not less than $500. and not more than $750. or to imprisonment for a term not exceeding three months, or to both; and

(b) in the case of a second or subsequent offence, to a fine of not less than $1,000. and not more than $1,500. or to imprisonment for a term not exceeding 12 months, or to both;

and, in addition to the penalties imposed under clause (a) or (b), the convicting justice shall order the convicted person to pay to Her Majesty in right of Manitoba an amount equal to double the tax payable under section 2 in respect of the tobacco in respect of which the offence was committed and upon payment of that amount, and any fine imposed under clause (a) or (b), the tax payable under section 2 in respect of the tobacco shall be conclusively deemed to be fully paid and satisfied.

Onus of proof.

26(3)

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.

Act of agent deemed act of principal.

26(4)

In construing and enforcing this section, the act, omission, neglect, or failure, of an officer, employee, or agent of, or of any other person acting for, a holder of a licence and acting within the scope of his employment or instructions, shall be deemed to be the act, omission, neglect, or failure, of the holder of a licence.

Limitation on prosecution.

26(5)

Notwithstanding any other Act of the Legislature, proceedings in respect of the prosecution in respect of an alleged offence of making a false statement on any application or on any report or return under this Act or the regulations may be instituted at any time after the offence was alleged to have been committed; and proceedings in respect of a prosecution for 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.

DISPOSAL OF TAX PROCEEDS

Tax paid to Consolidated Fund.

27(1)

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.

Charges reducing the tax.

27(2)

To the special account mentioned in subsection (1) there shall be charged as paid all remuneration paid under section 19.

REGULATIONS

Regulations.

28

For the purpose of carrying out the provisions of this Act 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) defining cigarettes, cigars, and other tobacco, by type, quality, grade, size, weight, or any other physical property, for purposes of applying the tax under section 2;

(b) prescribing the formula or method of calculation of "price at retail" for the purposes of section 2;

(c) prescribing the form of licences and the information to be set out therein;

(d) prescribing the form of applications for licences;

(e) prescribing fee, if any, to be paid for each licence;

(f) classifying licences and licence holders;

(g) prescribing the terms, conditions, and limitations, subject to which each licence shall be issued and that shall be observed by the licence holder;

(h) respecting the collection of fees for licences and designating persons by whom such fees are to be collected;

(i) prescribing the date or dates on which licences shall expire;

(j) respecting the form of agreements into which the minister may enter under section 9;

(k) prescribing the manner in which, and the times when, collectors shall remit to the minister moneys received by them from retail dealers as proceeds of the tax;

(l) prescribing the form of, and the manner of keeping, records, reports and returns to be made or kept and the information to be recorded, reported, or contained therein;

(m) prescribing the form of certificates of debts to the Crown that may be issued by the minister and registered in a land titles office under section 14;

(n) fixing the rates of amounts of commissions payable under section 19;

(o) providing for the affixing of stamps, or the imprinting of markings, on tobacco or on the packages in which it is sold, before or at the time of delivery to a purchaser, as evidence of the tax having been paid;

(p) prohibiting the delivery to a purchaser or the taking of delivery by a purchaser of tobacco upon which stamps are not affixed, or upon which markings are not imprinted, in accordance with the regulations;

(q) prescribing forms for use under subsections 9(2) and (3) and the information to be contained in those forms;

(r) requiring dealers, retail dealers, wholesale dealers, collectors and deputy collectors to keep and maintain such books, records and documents as may be required by the minister or by the regulations;

(s) respecting the retention or destruction, or both of any of the books, records and documents required to be kept under the Act or the regulations;

(t) prescribe the terms and conditions under which a refund may be made by the minister, the time within which an application for a refund may be made, the manner of making an application for the refund and the evidence to be furnished in support of the application for the refund.