Income Tax Act

Marginal note:Refunds

• 164 (1) If the return of a taxpayer’s income for a taxation year has been made within 3 years from the end of the year, the Minister

  • (a) may,

    • (i) before sending the notice of assessment for the year, where the taxpayer is, for any purpose of the definition refundable investment tax credit (as defined in subsection 127.1(2)), a qualifying corporation (as defined in that subsection) and claims in its return of income for the year to have paid an amount on account of its tax payable under this Part for the year because of subsection 127.1(1) in respect of its refundable investment tax credit (as defined in subsection 127.1(2)), refund all or part of any amount claimed in the return as an overpayment for the year, not exceeding the amount by which the total determined under paragraph (f) of the definition refundable investment tax credit in subsection 127.1(2) in respect of the taxpayer for the year exceeds the total determined under paragraph (g) of that definition in respect of the taxpayer for the year,

    • (ii) before sending the notice of assessment for the year, where the taxpayer is a qualified corporation (as defined in subsection 125.4(1)), an eligible production corporation (as defined in subsection 125.5(1)) or a qualifying journalism organization (as defined in subsection 125.6(1)) and an amount is deemed under subsection 125.4(3), 125.5(3) or 125.6(2) to have been paid on account of its tax payable under this Part for the year, refund all or part of any amount claimed in the return as an overpayment for the year, not exceeding the total of those amounts so deemed to have been paid, and

    • (iii) on or after sending the notice of assessment for the year, refund any overpayment for the year, to the extent that the overpayment was not refunded pursuant to subparagraph (i) or (ii); and

  • (b) shall, with all due dispatch, make the refund referred to in subparagraph (a)(iii) after sending the notice of assessment if application for it is made in writing by the taxpayer within the period within which the Minister would be allowed under subsection 152(4) to assess tax payable under this Part by the taxpayer for the year if that subsection were read without reference to paragraph 152(4)(a).

• Marginal note:Repayment on objections and appeals

  (1.1) Subject to subsection 164(1.2), where a taxpayer

  • (a) has under section 165 served a notice of objection to an assessment and the Minister has not within 120 days after the day of service confirmed or varied the assessment or made a reassessment in respect thereof, or

  • (b) has appealed from an assessment to the Tax Court of Canada,

  and has applied in writing to the Minister for a payment or surrender of security, the Minister shall, where no authorization has been granted under subsection 225.2(2) in respect of the amount assessed, with all due dispatch repay all amounts paid on account of that amount or surrender security accepted therefor to the extent that

  • (c) the lesser of

    • (i) the total of the amounts so paid and the value of the security, and

    • (ii) the amount so assessed

  exceeds

  • (d) the total of

    • (i) the amount, if any, so assessed that is not in controversy, and

    • (ii) 1/2 of the amount so assessed that is in controversy if

      • (A) the taxpayer is a large corporation (within the meaning assigned by subsection 225.1(8)), or

      • (B) the amount is in respect of a particular amount claimed under section 110.1 or 118.1 and the particular amount was claimed in respect of a tax shelter.

• Marginal note:Collection in jeopardy

  (1.2) Notwithstanding subsection 164(1.1), where, on application by the Minister made within 45 days after the receipt by the Minister of a written request by a taxpayer for repayment of an amount or surrender of a security, a judge is satisfied that there are reasonable grounds to believe that the collection of all or any part of an amount assessed in respect of the taxpayer would be jeopardized by the repayment of the amount or the surrender of the security to the taxpayer under that subsection, the judge shall order that the repayment of the amount or a part thereof not be made or that the security or part thereof not be surrendered or make such other order as the judge considers reasonable in the circumstances.

• Marginal note:Notice of application

  (1.3) The Minister shall give 6 clear days notice of an application under subsection 164(1.2) to the taxpayer in respect of whom the application is made.

• Marginal note:Application of ss. 225.2(4), (10), (12) and (13)

  (1.31) Where an application under subsection 164(1.2) is made by the Minister, subsections 225.2(4), 225.2(10), 225.2(12) and 225.2(13) are applicable in respect of the application with such modifications as the circumstances require.

• Marginal note:Provincial refund

  (1.4) Where, at any time, a taxpayer is entitled to a refund or repayment on account of taxes imposed by a province or as a result of a deduction in computing the taxes imposed by a province and the Government of Canada has agreed to make the refund or repayment on behalf of the province, the amount thereof shall be a liability of the Minister of National Revenue to the taxpayer.

• Marginal note:Exception

  (1.5) Notwithstanding subsection (1), the Minister may, on or after sending a notice of assessment for a taxation year, refund all or any portion of any overpayment of a taxpayer for the year

  • (a) if the taxpayer is an individual (other than a trust) or a graduated rate estate for the year and the taxpayer’s return of income under this Part for the year was filed on or before the day that is 10 calendar years after the end of the year;

  • (b) where an assessment or a redetermination was made under subsection 152(4.2) or 220(3.1) or 220(3.4) in respect of the taxpayer; or

  • (c) to the extent that the overpayment relates to an assessment of another taxpayer under subsection 227(10) or (10.1) (in this paragraph referred to as the “other assessment”), if the taxpayer’s return of income under this Part for the taxation year is filed on or before the day that is two years after the date of the other assessment and if the other assessment relates to

    • (i) in the case of an amount assessed under subsection 227(10), a payment to the taxpayer of a fee, commission or other amount in respect of services rendered in Canada by a non-resident person or partnership, and

    • (ii) in the case of an amount assessed under subsection 227(10.1), an amount payable under subsection 116(5) or (5.3) in respect of a disposition of property by the taxpayer.

• Marginal note:When subsection (1.52) applies

  (1.51) Subsection (1.52) applies to a taxpayer for a taxation year if, at any time after the beginning of the year

  • (a) the taxpayer has, in respect of the tax payable by the taxpayer under this Part (and, if the taxpayer is a corporation, Parts I.3, VI, VI.1 and XIII.1) for the year, paid under any of sections 155 to 157 one or more instalments of tax;

  • (b) it is reasonable to conclude that the total amount of those instalments exceeds the total amount of taxes that will be payable by the taxpayer under those Parts for the year; and

  • (c) the Minister is satisfied that the payment of the instalments has caused or will cause undue hardship to the taxpayer.

• Marginal note:Instalment refund

  (1.52) If this subsection applies to a taxpayer for a taxation year, the Minister may refund to the taxpayer all or any part of the excess referred to in paragraph (1.51)(b).

• Marginal note:Penalties, interest not affected

  (1.53) For the purpose of the calculation of any penalty or interest under this Act, an instalment is deemed not to have been paid to the extent that all or any part of the instalment can reasonably be considered to have been refunded under subsection (1.52).

• Marginal note:COVID-19 refunds

  (1.6) Notwithstanding subsection (2.01), at any time after the beginning of a taxation year of a taxpayer in which an overpayment is deemed to have arisen under subsection 125.7(2) or (2.1), the Minister may refund to the taxpayer all or any part of the overpayment.

• Marginal note:COVID-19 refunds — partnerships

  (1.61) For the purposes of subsection (1.6), references to a taxpayer include a partnership and the reference to a taxation year includes a fiscal period.

• Marginal note:Limitation of repayment on objections and appeals

  (1.7) Subsection 164(1.1) does not apply in respect of an amount paid or security furnished under section 116 by a non-resident person.

• Marginal note:Request to pay refund to province

  (1.8) An individual (other than a trust) may, in the individual’s return of income for a taxation year, request the Minister to pay to Her Majesty in right of a prescribed province all or any part of a refund for the year claimed by the individual in the return and, where the individual makes such a request,

  • (a) the Minister may make the payment to Her Majesty in right of the province in accordance with the request; and

  • (b) the amount of the payment is deemed to have been refunded under this section to the individual at the time a notice of an original assessment of tax payable under this Part by the individual for the year, or a notification that no tax is payable under this Part by the individual for the year, is sent to the individual.

• Marginal note:Application to other debts

  (2) Instead of making a refund or repayment that might otherwise be made under this section, the Minister may, where the taxpayer is, or is about to become, liable to make any payment to Her Majesty in right of Canada or in right of a province, apply the amount of the refund or repayment to that other liability and notify the taxpayer of that action.

• Marginal note:Withholding of refunds

  (2.01) The Minister shall not, in respect of a taxpayer, refund, repay, apply to other debts or set-off amounts under this Act at any time unless all returns of which the Minister has knowledge and that are required to be filed by the taxpayer at or before that time under this Act, the Air Travellers Security Charge Act, the Excise Act, 2001 and the Excise Tax Act have been filed with the Minister.

• Marginal note:Application respecting refunds under s. 122.5

  (2.1) Where an amount deemed under section 122.5 to be paid by an individual during a month specified for a taxation year is applied under subsection 164(2) to a liability of the individual and the individual’s return of income for the year is filed on or before the individual’s balance-due day for the year, the amount is deemed to have been so applied on the day on which the amount would have been refunded if the individual were not liable to make a payment to Her Majesty in right of Canada.

• Marginal note:Application respecting refunds re section 122.61

  (2.2) Subsection 164(2) does not apply to a refund to be made to a taxpayer and arising because of section 122.61 except to the extent that the taxpayer’s liability referred to in that subsection arose from the operation of paragraph 160.1(1)(a) with respect to an amount refunded to the taxpayer in excess of the amount to which the taxpayer was entitled because of section 122.61.

• Marginal note:Form deemed to be return of income

  (2.3) For the purpose of subsection (1), where a taxpayer files the form referred to in paragraph (b) of the definition return of income in section 122.6 for a taxation year, the form is deemed to be a return of the taxpayer’s income for that year and a notice of assessment in respect of that return is deemed to have been sent by the Minister.

• Marginal note:Interest on refunds and repayments

  (3) If, under this section, an amount in respect of a taxation year (other than an amount, or a portion of the amount, that can reasonably be considered to arise from the operation of section 122.5, 122.61 or 125.7) is refunded or repaid to a taxpayer or applied to another liability of the taxpayer, the Minister shall pay or apply interest on it at the prescribed rate for the period that begins on the day that is the latest of the days referred to in the following paragraphs and that ends on the day on which the amount is refunded, repaid or applied:

  • (a) if the taxpayer is an individual, the day that is 30 days after the individual’s balance-due day for the year;

  • (b) if the taxpayer is a corporation, the day that is 120 days after the end of the year;

  • (c) if the taxpayer is

    • (i) a corporation, the day that is 30 days after the day on which its return of income for the year was filed under section 150, unless the return was filed on or before the corporation’s filing-due date for the year, and

    • (ii) an individual, the day that is 30 days after the day on which the individual’s return of income for the year was filed under section 150;

  • (d) in the case of a refund of an overpayment, the day on which the overpayment arose; and

  • (e) in the case of a repayment of an amount in controversy, the day on which an overpayment equal to the amount of the repayment would have arisen if the total of all amounts payable on account of the taxpayer’s liability under this Part for the year were the amount by which

    • (i) the lesser of the total of all amounts paid on account of the taxpayer’s liability under this Part for the year and the total of all amounts assessed by the Minister as payable under this Part by the taxpayer for the year

    exceeds

    • (ii) the amount repaid.

• Marginal note:Idem

  (3.1) Where at a particular time interest has been paid to, or applied to a liability of, a taxpayer under subsection 164(3) or 164(3.2) in respect of an overpayment and it is determined at a subsequent time that the actual overpayment was less than the overpayment in respect of which interest was paid or applied,

  • (a) the amount by which the interest that has been paid or applied exceeds the interest, if any, computed in respect of the amount that is determined at the subsequent time to be the actual overpayment shall be deemed to be an amount (in this subsection referred to as “the amount payable”) that became payable under this Part by the taxpayer at the particular time;

  • (b) the taxpayer shall pay to the Receiver General interest at the prescribed rate on the amount payable computed from that particular time to the day of payment; and

  • (c) the Minister may at any time assess the taxpayer in respect of the amount payable and, where the Minister makes such an assessment, the provisions of this Division are applicable, with such modifications as the circumstances require, in respect of the assessment as though it had been made under section 152.

• Marginal note:Interest where amounts cancelled

  (3.2) Notwithstanding subsection (3), if an overpayment of a taxpayer for a taxation year is determined because of an assessment made under subsection 152(4.2) or 220(3.1) or (3.4) and an amount in respect of the overpayment is refunded to, or applied to another liability of, the taxpayer under subsection (1.5) or (2), the Minister shall pay or apply interest on the overpayment at the prescribed rate for the period beginning on the day that is 30 days after the day on which the Minister received a request in a manner satisfactory to the Minister to apply those subsections and ending on the day on which the amount is refunded or applied.

• Marginal note:Interest on interest repaid

  (4) Where at any particular time interest has been paid to, or applied to a liability of, a taxpayer pursuant to subsection 164(3) in respect of the repayment of an amount in controversy made to, or applied to a liability of, the taxpayer and it is determined at a subsequent time that the repayment or a part thereof is payable by the taxpayer under this Part, the following rules apply:

  • (a) the interest so paid or applied on that part of the repayment that is determined at the subsequent time to be payable by the taxpayer under this Part shall be deemed to be an amount (in this subsection referred to as the “interest excess”) that became payable under this Part by the taxpayer at the particular time;

  • (b) the taxpayer shall pay to the Receiver General interest at the prescribed rate on the interest excess computed from the particular time to the day of payment; and

  • (c) the Minister may at any time assess the taxpayer in respect of the interest excess and, where the Minister makes such an assessment, the provisions of this Division and Division J are applicable, with such modifications as the circumstances require, in respect of the assessment as though it had been made under section 152.

• Marginal note:Duty of Minister

  (4.1) Where the Tax Court of Canada, the Federal Court of Appeal or the Supreme Court of Canada has, on the disposition of an appeal in respect of taxes, interest or a penalty payable under this Act by a taxpayer resident in Canada,

  • (a) referred an assessment back to the Minister for reconsideration and reassessment, or

  • (b) varied or vacated an assessment,

  the Minister shall with all due dispatch, whether or not an appeal from the decision of the Court has been or may be instituted,

  • (c) where the assessment has been referred back to the Minister, reconsider the assessment and make a reassessment in accordance with the decision of the Court, unless otherwise directed in writing by the taxpayer, and

  • (d) refund any overpayment resulting from the variation, vacation or reassessment,

  and the Minister may repay any tax, interest or penalties or surrender any security accepted therefor by the Minister to that taxpayer or any other taxpayer who has filed another objection or instituted another appeal if, having regard to the reasons given on the disposition of the appeal, the Minister is satisfied that it would be just and equitable to do so, but for greater certainty, the Minister may, in accordance with the provisions of this Act, the Tax Court of Canada Act, the Federal Courts Act or the Supreme Court Act as they relate to appeals from decisions of the Tax Court of Canada or the Federal Court of Appeal, appeal from the decision of the Court notwithstanding any variation or vacation of any assessment by the Court or any reassessment made by the Minister under paragraph 164(4.1)(c).

• Marginal note:Effect of carryback of loss, etc.

  (5) For the purpose of subsection 164(3), the portion of any overpayment of the tax payable by a taxpayer for a taxation year that arose as a consequence of

  • (a) the deduction of an amount, in respect of a repayment under subsection 68.4(7) of the Excise Tax Act made in a subsequent taxation year, in computing the amount determined under subparagraph 12(1)(x.1)(ii),

  • (a.1) any amount deducted under section 119 in respect of the disposition of a taxable Canadian property in a subsequent taxation year,

  • (b) the deduction of an amount under section 41 in respect of the taxpayer’s listed-personal-property loss for a subsequent taxation year,

  • (c) the exclusion of an amount from the taxpayer’s income for the year by virtue of section 49 in respect of the exercise of an option in a subsequent taxation year,

  • (d) the deduction of an amount under section 118.1 in respect of a gift made in a subsequent taxation year or under section 111 in respect of a loss for a subsequent taxation year,

  • (e) the deduction of an amount under subsection 126(2) in respect of an unused foreign tax credit (within the meaning assigned by subsection 126(7)), or under subsection 126(2.21) or (2.22) in respect of foreign taxes paid, for a subsequent taxation year,

  • (f) the deduction of an amount under subsection 127(5) in respect of property acquired or an expenditure made in a subsequent taxation year,

  • (g) [Repealed, 2013, c. 34, s. 321]

  • (h) the deduction of an amount under section 125.3 in respect of an unused Part I.3 tax credit (within the meaning assigned by subsection 125.3(3)) for a subsequent taxation year,

  • (h.01) the deduction of an amount under subsection 147.2(4) in computing the taxpayer’s income for the year because of the application of subsection 147.2(6) as a result of the taxpayer’s death in the following taxation year,

  • (h.02) the deduction under any of subsections 128.1(6) to (8) of an amount from the taxpayer’s proceeds of disposition of a property, because of an election made in a return of income for a subsequent taxation year,

  • (h.1) the deduction of an amount in computing the taxpayer’s income for the year by virtue of an election for a subsequent taxation year under paragraph 164(6)(c) or 164(6)(d) by the taxpayer’s legal representative,

  • (h.2) the deduction of an amount under subsection 181.1(4) in respect of an unused surtax credit (within the meaning assigned by subsection 181.1(6)) of the taxpayer for a subsequent taxation year,

  • (h.3) the deduction of an amount under subsection 190.1(3) in respect of an unused Part I tax credit (within the meaning assigned by subsection 190.1(5)) of the taxpayer for a subsequent taxation year, or

  • (h.4) the reduction of the amount included under subsection 91(1) for the year because of a reduction referred to in paragraph 152(6.1)(b) in the foreign accrual property income of a foreign affiliate of the taxpayer for a taxation year of the affiliate that ends in the year,

  is deemed to have arisen on the day that is 30 days after the latest of

  • (i) the first day immediately following that subsequent taxation year,

  • (j) the day on which the taxpayer’s or the taxpayer’s legal representative’s return of income for that subsequent taxation year was filed,

  • (k) if an amended return of a taxpayer’s income for the year or a prescribed form amending the taxpayer’s return of income for the year was filed under paragraph (6)(e) or subsection 49(4) or 152(6) or (6.1), the day on which the amended return or prescribed form was filed, and

  • (l) where, as a consequence of a request in writing, the Minister reassessed the taxpayer’s tax for the year to take into account the deduction or exclusion, the day on which the request was made.

• Marginal note:Interest - disputed amounts

  (5.1) Where a portion of a repayment made under subsection (1.1) or (4.1), or an amount applied under subsection (2) in respect of a repayment, can reasonably be regarded as being in respect of a claim made by the taxpayer in an objection to or appeal from an assessment of tax for a taxation year for a deduction or exclusion described in subsection (5) in respect of a subsequent taxation year, interest shall not be paid or applied on the portion for any part of a period that is before the latest of the dates described in paragraphs (5)(i) to (l).

• Marginal note:Disposition by legal representative of deceased

  (6) If in the course of administering the graduated rate estate of a taxpayer, the taxpayer’s legal representative has, within the first taxation year of the estate,

  • (a) disposed of capital property of the estate so that the total of all amounts each of which is a capital loss from the disposition of a property exceeds the total of all amounts each of which is a capital gain from the disposition of a property, or

  • (b) disposed of all of the depreciable property of a prescribed class of the estate so that the undepreciated capital cost to the estate of property of that class at the end of the first taxation year of the estate is, by virtue of subsection 20(16) or any regulation made under paragraph 20(1)(a), deductible in computing the income of the estate for that year,

  notwithstanding any other provision of this Act, the following rules apply:

  • (c) such parts of one or more capital losses of the estate from the disposition of properties in the year (the total of which is not to exceed the excess referred to in paragraph 164(6)(a)) as the legal representative so elects, in prescribed manner and within a prescribed time, are deemed (except for the purpose of subsection 112(3) and this paragraph) to be capital losses of the deceased taxpayer from the disposition of the properties by the taxpayer in the taxpayer’s last taxation year and not to be capital losses of the estate from the disposition of those properties,

  • (d) such part of the amount of any deduction described in paragraph 164(6)(b) (not exceeding the amount that, but for this subsection, would be the total of the non-capital loss and the farm loss of the estate for its first taxation year) as the legal representative so elects, in prescribed manner and within a prescribed time, shall be deductible in computing the income of the taxpayer for the taxpayer’s taxation year in which the taxpayer died and shall not be an amount deductible in computing any loss of the estate for its first taxation year,

  • (e) the legal representative shall, at or before the time prescribed for filing the election referred to in paragraphs 164(6)(c) and 164(6)(d), file an amended return of income for the deceased taxpayer for the taxpayer’s taxation year in which the taxpayer died to give effect to the rules in those paragraphs, and

  • (f) in computing the taxable income of the deceased taxpayer for a taxation year preceding the year in which the taxpayer died, no amount may be deducted in respect of an amount referred to in paragraph 164(6)(c) or 164(6)(d).

• Marginal note:Realization of deceased employees’ options

  (6.1) Notwithstanding any other provision of this Act, if a right to acquire securities (as defined in subsection 7(7)) under an agreement in respect of which a benefit was deemed by paragraph 7(1)(e) to have been received by a taxpayer (in this subsection referred to as “the right”) is exercised or disposed of by the taxpayer’s legal representative within the first taxation year of the graduated rate estate of the taxpayer and the representative so elects in prescribed manner and on or before a prescribed day,

  • (a) the amount, if any, by which

    • (i) the amount of the benefit deemed by paragraph 7(1)(e) to have been received by the taxpayer in respect of the right

    exceeds the total of

    • (ii) the amount, if any, by which the value of the right immediately before the time it was exercised or disposed of exceeds the amount, if any, paid by the taxpayer to acquire the right, and

    • (iii) where in computing the taxpayer’s taxable income for the taxation year in which the taxpayer died an amount was deducted under paragraph 110(1)(d) in respect of the benefit deemed by paragraph 7(1)(e) to have been received by the taxpayer in that year by reason of paragraph 7(1)(e) in respect of that right, 1/2 of the amount, if any, by which the amount determined under subparagraph 164(6.1)(a)(i) exceeds the amount determined under subparagraph 164(6.1)(a)(ii),

    shall be deemed to be a loss of the taxpayer from employment for the year in which the taxpayer died;

  • (b) there shall be deducted in computing the adjusted cost base to the estate of the right at any time the amount of the loss that would be determined under paragraph 164(6.1)(a) if that paragraph were read without reference to subparagraph 164(6.1)(a)(iii); and

  • (c) the legal representative shall, at or before the time prescribed for filing the election under this subsection, file an amended return of income for the taxpayer for the taxation year in which the taxpayer died to give effect to paragraph 164(6.1)(a).

• Definition of overpayment

  (7) In this section, overpayment of a taxpayer for a taxation year means

  • (a) where the taxpayer is not a corporation, the total of all amounts paid on account of the taxpayer’s liability under this Part for the year minus all amounts payable in respect thereof; and

  • (b) where the taxpayer is a corporation, the total of all amounts paid on account of the corporation’s liability under this Part or Parts I.3, VI or VI.1 for the year minus all amounts payable in respect thereof.