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Excise Act, 2001 (S.C. 2002, c. 22)

Full Document:  

Act current to 2022-06-01 and last amended on 2021-06-29. Previous Versions

PART 5General Provisions Concerning Duty and Other Amounts Payable (continued)

Assessments (continued)

Marginal note:Assessment of refund

  •  (1) On receipt of an application made by a person for a refund under this Act, the Minister shall, without delay, consider the application and assess the amount of the refund, if any, payable to the person.

  • Marginal note:Reassessment

    (2) The Minister may reassess or make an additional assessment of the amount of a refund despite any previous assessment of the amount of the refund.

  • Marginal note:Payment

    (3) If on assessment under this section the Minister determines that a refund is payable to a person, the Minister shall pay the refund to the person.

  • Marginal note:Restriction

    (4) A refund shall not be paid until the person has filed with the Minister or the Minister of Public Safety and Emergency Preparedness all returns and other records of which the Minister has knowledge and that are required to be filed under this Act, the Air Travellers Security Charge Act, the Customs Act, the Excise Act, the Excise Tax Act and the Income Tax Act.

  • Marginal note:Interest

    (5) If a refund is paid to a person, the Minister shall pay interest at the prescribed rate to the person on the refund for the period beginning on the day that is 30 days after the day on which the application for the refund is filed with the Minister and ending on the day on which the refund is paid.

  • 2002, c. 22, s. 189
  • 2005, c. 38, ss. 96, 145
  • 2006, c. 4, s. 118
  • 2007, c. 18, s. 112

Marginal note:No assessment for penalty

 No assessment shall be made for any penalty imposed under section 254.

Marginal note:Limitation period for assessments

  •  (1) Subject to subsections (3) to (7), no assessment shall be made for any duty, interest or other amount payable under this Act

    • (a) in the case of an assessment of the duty payable for a reporting period, more than four years after the later of the day on which the return for the period was required to be filed and the day on which the return was filed;

    • (b) in the case of an assessment for any other amount payable under this Act, more than four years after the amount became payable; or

    • (c) in the case of an assessment for an amount for which a trustee in bankruptcy became liable under section 212, after the earlier of

      • (i) the day that is 90 days after the return on which the assessment is based is filed with, or other evidence of the facts on which the assessment is based comes to the attention of, the Minister, and

      • (ii) the expiry of the period referred to in paragraph (a) or (b), whichever applies in the circumstances.

  • Marginal note:Limitation re refund assessment

    (2) Subject to subsections (3) to (7), an assessment of the amount of a refund or any other payment that may be obtained under this Act may be made at any time but a reassessment or additional assessment of an amount paid or applied as a refund under this Act or of an amount paid as interest in respect of an amount paid or applied as a refund under this Act shall not be made more than four years after the application for the amount was filed in accordance with this Act.

  • Marginal note:Exception

    (3) Subsections (1) and (2) do not apply to a reassessment of a person made

    • (a) to give effect to a decision on an objection or appeal;

    • (b) with the consent in writing of the person to dispose of an appeal; or

    • (c) to give effect to an alternative basis or argument advanced by the Minister under subsection (7).

  • Marginal note:No limitation on assessment if fraud, etc.

    (4) An assessment in respect of any matter may be made at any time if the person to be assessed has, in respect of that matter,

    • (a) made a misrepresentation that is attributable to their neglect, carelessness or wilful default;

    • (b) committed fraud

      • (i) in making or filing a return under this Act,

      • (ii) in making or filing an application for a refund under this Act, or

      • (iii) in supplying or failing to supply any information under this Act; or

    • (c) filed a waiver under subsection (8) that is in effect at that time.

  • Marginal note:No limitation if payment for another reporting period

    (5) If, in making an assessment, the Minister determines that a person has paid in respect of any matter an amount as or on account of duty payable for a reporting period of the person that was payable for another reporting period of the person, the Minister may at any time make an assessment for that other period in respect of that matter.

  • Marginal note:Reduction of duty — reporting period

    (6) If the result of a reassessment on an objection to, or a decision on an appeal from, an assessment is to reduce the amount of duty payable by a person and, by reason of the reduction, any refund or other payment claimed by the person for a reporting period, or in an application for a refund or other payment, should be decreased, the Minister may at any time assess or reassess that reporting period or that application only for the purpose of taking the reduction of duty into account in respect of the refund or other payment.

  • Marginal note:Alternative basis or argument

    (7) The Minister may advance an alternative basis or argument in support of an assessment of a person, or in support of all or any portion of the total amount determined on assessment to be payable or remittable by a person under this Act, at any time after the period otherwise limited by subsection (1) or (2) for making the assessment unless on an appeal under this Act

    • (a) there is relevant evidence that the person is no longer able to adduce without the leave of the court; and

    • (b) it is not appropriate in the circumstances for the court to order that the evidence be adduced.

  • Marginal note:Limitation

    (7.1) If a reassessment of a person is made that gives effect to an alternative basis or argument advanced by the Minister under subsection (7) in support of a particular assessment of the person, the Minister shall not reassess for an amount that is greater than the total amount of the particular assessment.

  • Marginal note:Exception

    (7.2) Subsection (7.1) does not apply to any portion of an amount determined on reassessment that the Minister would be entitled to reassess under this Act at any time after the period otherwise limited by subsection (1) or (2) for making the reassessment if this Act were read without reference to subsection (7).

  • Marginal note:Waiver

    (8) Any person may, within the time otherwise limited by subsection (1) or (2) for an assessment, waive the application of subsection (1) or (2) by filing with the Minister a waiver in the prescribed form and manner specifying the matter in respect of which the person waives the application of that subsection.

  • Marginal note:Revoking waiver

    (9) Any person who files a waiver under subsection (8) may revoke it on six months notice to the Minister by filing with the Minister a notice of revocation of the waiver in the prescribed form and manner.

  • 2002, c. 22, s. 191
  • 2010, c. 25, s. 117
  • 2016, c. 12, s. 100

Marginal note:Minister not bound

  •  (1) The Minister is not bound by any return, application or information provided by or on behalf of a person and may make an assessment despite any return, application or information provided or not provided.

  • Marginal note:Liability not affected

    (2) Liability to pay any duty, interest or other amount is not affected by an incorrect or incomplete assessment or by the fact that no assessment has been made.

  • Marginal note:Binding effect — unincorporated body

    (3) If a person (referred to in this subsection as the “body”) that is not an individual or a corporation is assessed in respect of any matter,

    • (a) the assessment is not invalid only because one or more other persons (each of which is referred to in this subsection as a “representative”) who are liable for obligations of the body did not receive a notice of the assessment;

    • (b) the assessment is binding on each representative of the body, subject to a reassessment of the body and the rights of the body to object to or appeal from the assessment under this Act; and

    • (c) an assessment of a representative in respect of the same matter is binding on the representative, subject only to a reassessment of the representative and the rights of the representative to object to or appeal from the assessment of the representative under this Act on the grounds that the representative is not a person who is liable to pay an amount to which the assessment of the body relates, the body has been reassessed in respect of that matter or the assessment of the body in respect of that matter has been vacated.

  • Marginal note:Assessment deemed valid

    (4) Subject to being reassessed or vacated as a result of an objection or appeal under this Act, an assessment is deemed to be valid and binding despite any error, defect or omission in the assessment or in any proceeding under this Act relating to it.

  • Marginal note:Irregularities

    (5) An appeal from an assessment shall not be allowed by reason only of an irregularity, informality, omission or error on the part of any person in the observation of a directory provision of this Act.

Marginal note:Notice of assessment

  •  (1) After making an assessment, the Minister shall send to the person assessed a notice of the assessment.

  • Marginal note:Scope of notice

    (2) A notice of assessment may include assessments in respect of any number or combination of reporting periods, refunds or amounts payable under this Act.

  • 2002, c. 22, s. 193
  • 2010, c. 25, s. 118

Marginal note:Assessment payable

 Any amount assessed by the Minister is payable by the person assessed as of the date of the assessment.

Objections to Assessment

Marginal note:Objection to assessment

  •  (1) Any person who has been assessed and who objects to the assessment may, within 90 days after the date of the notice of the assessment, file with the Minister a notice of objection in the prescribed form and manner setting out the reasons for the objection and all relevant facts.

  • Marginal note:Issue to be decided

    (2) A notice of objection shall

    • (a) reasonably describe each issue to be decided;

    • (b) specify in respect of each issue the relief sought, expressed as the change in any amount that is relevant for the purposes of the assessment; and

    • (c) provide the facts and reasons relied on by the person in respect of each issue.

  • Marginal note:Late compliance

    (3) Despite subsection (2), if a notice of objection does not include the information required under paragraph (2)(b) or (c) in respect of an issue to be decided that is described in the notice, the Minister may, in writing, request the person to provide the information, and that paragraph is deemed to be complied with in respect of the issue if, within 60 days after the request is made, the person submits the information in writing to the Minister.

  • Marginal note:Limitation on objections

    (4) Despite subsection (1), if a person has filed a notice of objection to an assessment (in this subsection referred to as the “earlier assessment”) and the Minister makes a particular assessment under subsection (8) as a result of the notice of objection, unless the earlier assessment was made in accordance with an order of a court vacating, varying or restoring an assessment or referring an assessment back to the Minister for reconsideration and reassessment, the person may object to the particular assessment in respect of an issue

    • (a) only if the person complied with subsection (2) in the notice with respect to that issue; and

    • (b) only with respect to the relief sought in respect of that issue as specified by the person in the notice.

  • Marginal note:Application of subsection (4)

    (5) If a person has filed a notice of objection to an assessment (in this subsection referred to as the “earlier assessment”) and the Minister makes a particular assessment under subsection (8) as a result of the notice of objection, subsection (4) does not limit the right of the person to object to the particular assessment in respect of an issue that was part of the particular assessment and not part of the earlier assessment.

  • Marginal note:Limitation on objections

    (6) Despite subsection (1), no objection may be made by a person in respect of an issue for which the right of objection has been waived in writing by the person.

  • Marginal note:Acceptance of objection

    (7) The Minister may accept a notice of objection even though it was not filed in the prescribed form and manner.

  • Marginal note:Consideration of objection

    (8) On receipt of a notice of objection, the Minister shall, without delay, reconsider the assessment and vacate or confirm it or make a reassessment.

  • Marginal note:Waiving reconsideration

    (9) If, in a notice of objection, a person who wishes to appeal directly to the Tax Court requests the Minister not to reconsider the assessment objected to, the Minister may confirm the assessment without reconsideration.

  • Marginal note:Notice of decision

    (10) After reconsidering an assessment under subsection (8) or confirming an assessment under subsection (9), the Minister shall send notice of the Minister’s decision by registered or certified mail to the person objecting.

Marginal note:Extension of time by Minister

  •  (1) If no objection to an assessment is filed under section 195 within the time limited under this Act, a person may make an application to the Minister to extend the time for filing a notice of objection and the Minister may grant the application.

  • Marginal note:Contents of application

    (2) An application must set out the reasons why the notice of objection was not filed within the time limited under this Act for doing so.

  • Marginal note:How application made

    (3) An application must be made by delivering or mailing to the Chief of Appeals in a Tax Services Office or Taxation Centre of the Agency the application accompanied by a copy of the notice of objection.

  • Marginal note:Defect in application

    (4) The Minister may accept an application even though it was not made in accordance with subsection (3).

  • Marginal note:Duties of Minister

    (5) On receipt of an application, the Minister shall, without delay, consider the application and grant or refuse it, and shall notify the person of the decision by registered or certified mail.

  • Marginal note:Date of objection if application granted

    (6) If an application is granted, the notice of objection is deemed to have been filed on the day of the decision of the Minister.

  • Marginal note:Conditions — grant of application

    (7) No application shall be granted under this section unless

    • (a) the application is made within one year after the expiry of the time limited under this Act for objecting; and

    • (b) the person demonstrates that

      • (i) within the time limited under this Act for objecting, the person

        • (A) was unable to act or to give a mandate to act in their name, or

        • (B) had a bona fide intention to object to the assessment,

      • (ii) given the reasons set out in the application and the circumstances of the case, it would be just and equitable to grant the application, and

      • (iii) the application was made as soon as circumstances permitted it to be made.

  • 2002, c. 22, s. 196
  • 2007, c. 18, s. 113
 
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