Excise Tax Act (R.S.C., 1985, c. E-15)

Marginal note:Statutory recovery rights only

312 Except as specifically provided in this Part, the Customs Act or the Financial Administration Act, no person has a right to recover any money paid to Her Majesty as or on account of, or that has been taken into account by Her Majesty as, tax, net tax, penalty, interest or any other amount under this Part.

SUBDIVISION ECollection

Marginal note:Definitions

• 313 (1) The following definitions apply in this section.

  action

  action means an action to collect a tax debt of a person and includes a proceeding in a court and anything done by the Minister under any provision of this Division. (action)

  legal representative

  legal representative of a person means a trustee in bankruptcy, an assignee, a liquidator, a curator, a receiver of any kind, a trustee, an heir, an administrator, an executor, a liquidator of a succession, a committee, or any other like person, administering, winding up, controlling or otherwise dealing in a representative or fiduciary capacity with any property, business, commercial activity or estate that belongs or belonged to, or that is or was held for the benefit of, the person or the person’s estate. (représentant légal)

  tax debt

  tax debt means any amount payable or remittable by a person under this Part. (dette fiscale)

• Marginal note:Debts to Her Majesty

  (1.1) A tax debt is a debt due to Her Majesty in right of Canada and is recoverable as such in the Federal Court or any other court of competent jurisdiction or in any other manner provided under this Part.

• Marginal note:Court proceedings

  (2) The Minister may not commence a proceeding in a court to collect a tax debt of a person in respect of an amount that may be assessed under this Part, unless when the proceeding is commenced the person has been or may be assessed for that amount.

• Marginal note:No actions after limitation period

  (2.1) The Minister may not commence an action to collect a tax debt after the end of the limitation period for the collection of the tax debt.

• Marginal note:Limitation period

  (2.2) The limitation period for the collection of a tax debt of a person

  • (a) begins

    • (i) if a notice of assessment, or a notice referred to in subsection 322(1), in respect of the tax debt, is sent to or served on the person after March 3, 2004, on the last day on which one of those notices is sent or served,

    • (ii) if no notice referred to in subparagraph (i) in respect of the tax debt was sent or served and the earliest day on which the Minister can commence an action to collect that tax debt is after March 3, 2004, on that earliest day, and

    • (iii) if subparagraphs (i) and (ii) do not apply and the tax debt was payable on March 4, 2004, or would have been payable on that date but for a limitation period that otherwise applied to the collection of the tax debt, on March 4, 2004; and

  • (b) ends, subject to subsection (2.6), on the day that is 10 years after the day on which it begins.

• Marginal note:Limitation period restarted

  (2.3) The limitation period described in subsection (2.2) for the collection of a tax debt of a person restarts (and ends, subject to subsection (2.6), on the day that is 10 years after the day on which it restarts) on any day, before it would otherwise end, on which

  • (a) the person acknowledges the tax debt in accordance with subsection (2.4);

  • (b) a remittance in respect of the tax debt is deemed under subsection 228(6) to have been made;

  • (c) a reduction or an offset in respect of the tax debt is made under subsection 228(7);

  • (d) the Minister commences an action to collect the tax debt; or

  • (e) the Minister, under paragraph 296(1)(e) or subsection 317(9), 323(4), 324(2) or 325(2), assesses another person in respect of the tax debt.

• Marginal note:Acknowledgement of tax debts

  (2.4) A person acknowledges a tax debt if the person

  • (a) promises, in writing, to pay the tax debt;

  • (b) makes a written acknowledgement of the tax debt, whether or not a promise to pay can be inferred from the acknowledgement and whether or not it contains a refusal to pay; or

  • (c) makes a payment, including a purported payment by way of a negotiable instrument that is dishonoured, on account of the tax debt.

• Marginal note:Agent or legal representative

  (2.5) For the purposes of this section, an acknowledgement made by a person’s agent or legal representative has the same effect as if it were made by the person.

• Marginal note:Extension of limitation period

  (2.6) In computing the day on which a limitation period ends, there shall be added the number of days on which one or more of the following is the case:

  • (a) the Minister has postponed collection action against the person under subsection 315(3) in respect of the tax debt;

  • (b) the Minister has accepted and holds security in lieu of payment of the tax debt;

  • (c) if the person was resident in Canada on the applicable date described in paragraph (2.2)(a) in respect of the tax debt, the person is non-resident; or

  • (d) an action that the Minister may otherwise take in respect of the tax debt is restricted or not permitted under any provision of the Bankruptcy and Insolvency Act, of the Companies’ Creditors Arrangement Act or of the Farm Debt Mediation Act.

• Marginal note:Bar to claims

  (2.7) Despite any law of Canada or a province, Her Majesty in right of Canada is not liable for any claim that arises because the Minister collected a tax debt after the end of any limitation period that applied to the collection of the tax debt and before March 4, 2004.

• Marginal note:Orders after March 3, 2004 and before effect

  (2.8) Despite any order or judgment made after March 3, 2004 that declares a tax debt not to be payable or remittable by a person, or that orders the Minister to reimburse to a person a tax debt collected by the Minister, because a limitation period that applied to the collection of the tax debt ended before royal assent to any measure giving effect to this section, the tax debt is deemed to have become payable or remittable on March 4, 2004.

• Marginal note:Interest on judgments

  (3) If a judgment is obtained for any tax, net tax, penalty, interest or other amount payable or remittable under this Part, including a certificate registered under section 316, the provisions of this Part by which interest is payable for failure to pay or remit the amount apply, with such modifications as the circumstances require, to failure to pay the judgment debt, and the interest is recoverable in like manner as the judgment debt.

• Marginal note:Court costs

  (4) If an amount is payable by a person to Her Majesty in right of Canada because of an order, judgment or award of a court in respect of the costs of litigation relating to a matter to which this Part applies, subsections 314(1) and (3) and sections 316 to 322 apply to the amount as if the amount were a debt owing by the person to Her Majesty on account of tax payable by the person under this Part.

Marginal note:Security

• 314 (1) The Minister may, if the Minister considers it advisable in a particular case, accept security in an amount and a form satisfactory to the Minister for payment of any amount that is or may become remittable or payable under this Part.

• Marginal note:Security where objection or appeal

  (2) Where a person objects to or appeals from an assessment, the Minister shall accept security, in an amount and a form satisfactory to the Minister, furnished by or on behalf of the person, for the payment of any amount that is in controversy.

• Marginal note:Surrender of excess security

  (3) Where a person who has furnished security, or on whose behalf security has been furnished, under this section requests in writing that the Minister surrender the security or any part thereof, the Minister shall surrender the security to the extent that the value thereof exceeds the amount, at the time the request is received by the Minister, of any tax, net tax, penalty, interest or other amount for the payment of which the security was furnished.

Marginal note:Assessment before collection

• 315 (1) The Minister may not take any collection action under sections 316 to 321 in respect of any amount payable or remittable by a person that may be assessed under this Part, other than interest, unless the amount has been assessed.

• Marginal note:Payment of remainder

  (2) If the Minister sends a notice of assessment to a person, any amount assessed then remaining unpaid is payable forthwith by the person to the Receiver General.

• Marginal note:Minister may postpone collection

  (3) The Minister may, subject to such terms and conditions as the Minister may stipulate, postpone collection action against a person in respect of all or any part of any amount assessed that is the subject of a dispute between the Minister and the person.

Marginal note:Certificates

• 316 (1) Any tax, net tax, penalty, interest or other amount payable or remittable by a person (in this section referred to as the “debtor”) under this Part, or any part of any such amount, that has not been paid or remitted as and when required under this Part may be certified by the Minister as an amount payable by the debtor.

• Marginal note:Registration in court

  (2) On production to the Federal Court, a certificate made under subsection (1) in respect of a debtor shall be registered in the Court and when so registered has the same effect, and all proceedings may be taken thereon, as if the certificate were a judgment obtained in the Court against the debtor for a debt in the amount certified plus interest and penalty thereon as provided under this Part to the day of payment and, for the purposes of any such proceedings, the certificate shall be deemed to be a judgment of the Court against the debtor for a debt due to Her Majesty and enforceable as such.

• Marginal note:Costs

  (3) All reasonable costs and charges incurred or paid in respect of the registration in the Court of a certificate made under subsection (1) or in respect of any proceedings taken to collect the amount certified are recoverable in like manner as if they had been included in the amount certified in the certificate when it was registered.

• Marginal note:Charge on property

  (4) A document issued by the Federal Court evidencing a certificate in respect of a debtor registered under subsection (2), a writ of that Court issued pursuant to the certificate or any notification of the document or writ (such document, writ or notification in this section referred to as a “memorial”) may be filed, registered or otherwise recorded for the purpose of creating a charge, lien or priority on, or a binding interest in, property in a province, or any interest in such property, held by the debtor in the same manner as a document evidencing

  • (a) a judgment of the superior court of the province against a person for a debt owing by the person, or

  • (b) an amount payable or required to be remitted by a person in the province in respect of a debt owing to Her Majesty in right of the province

  may be filed, registered or otherwise recorded in accordance with or pursuant to the law of the province to create a charge, lien or priority on, or a binding interest in, the property or interest.

• Marginal note:Creation of charge

  (5) If a memorial has been filed, registered or otherwise recorded under subsection (4),

  • (a) a charge, lien or priority is created on, or a binding interest is created in, property in the province, or any interest in such property, held by the debtor, or

  • (b) such property or interest in the property is otherwise bound,

  in the same manner and to the same extent as if the memorial were a document evidencing a judgment referred to in paragraph (4)(a) or an amount referred to in paragraph (4)(b), and the charge, lien, priority or binding interest created shall be subordinate to any charge, lien, priority or binding interest in respect of which all steps necessary to make it effective against other creditors were taken before the time the memorial was filed, registered or otherwise recorded.

• Marginal note:Proceedings in respect of memorial

  (6) If a memorial is filed, registered or otherwise recorded in a province under subsection (4), proceedings may be taken in the province in respect of the memorial, including proceedings

  • (a) to enforce payment of the amount evidenced by the memorial, interest and penalty on the amount and all costs and charges paid or incurred in respect of

    • (i) the filing, registration or other recording of the memorial, and

    • (ii) proceedings taken to collect the amount,

  • (b) to renew or otherwise prolong the effectiveness of the filing, registration or other recording of the memorial,

  • (c) to cancel or withdraw the memorial wholly or in respect of any of the property or interests affected by the memorial, or

  • (d) to postpone the effectiveness of the filing, registration or other recording of the memorial in favour of any right, charge, lien or priority that has been or is intended to be filed, registered or otherwise recorded in respect of any property or interest affected by the memorial,

  in the same manner and to the same extent as if the memorial were a document evidencing a judgment referred to in paragraph (4)(a) or an amount referred to in paragraph (4)(b), except that, if in any such proceeding or as a condition precedent to any such proceeding, any order, consent or ruling is required under the law of the province to be made or given by the superior court of the province or by a judge or official of that court, a like order, consent or ruling may be made or given by the Federal Court or by a judge or official of the Federal Court and, when so made or given, has the same effect for the purposes of the proceeding as if it were made or given by the superior court of the province or by a judge or official of that court.

• Marginal note:Presentation of documents

  (7) If

  • (a) a memorial is presented for filing, registration or other recording under subsection (4), or a document relating to the memorial is presented for filing, registration or other recording for the purpose of any proceeding described in subsection (6), to any official in the land, personal property or other registry system of a province, or

  • (b) access is sought to any person, place or thing in a province to make the filing, registration or other recording,

  the memorial or document shall be accepted for filing, registration or other recording or the access shall be granted, as the case may be, in the same manner and to the same extent as if the memorial or document relating to the memorial were a document evidencing a judgment referred to in paragraph (4)(a) or an amount referred to in paragraph (4)(b) for the purpose of a like proceeding, except that, if the memorial or document is issued by the Federal Court or signed or certified by a judge or official of that Court, any affidavit, declaration or other evidence required under the law of the province to be provided with or to accompany the memorial or document in the proceedings is deemed to have been provided with or to have accompanied the memorial or document as so required.

• Marginal note:Sale, etc.

  (8) Despite any law of Canada or of a province, a sheriff or other person shall not, without the written consent of the Minister, sell or otherwise dispose of any property or publish any notice or otherwise advertise in respect of any sale or other disposition of any property pursuant to any process issued or charge, lien, priority or binding interest created in any proceeding to collect an amount certified in a certificate made under subsection (1), interest or penalty on the amount or costs, but if that consent is subsequently given, any property that would have been affected by such a process, charge, lien, priority or binding interest if the Minister’s consent had been given at the time the process was issued or the charge, lien, priority or binding interest was created, as the case may be, shall be bound, seized, attached, charged or otherwise affected as it would be if that consent had been given at the time the process was issued or the charge, lien, priority or binding interest was created, as the case may be.

• Marginal note:Completion of notices, etc.

  (9) If information required to be set out by any sheriff or other person in a minute, notice or document required to be completed for any purpose cannot, because of subsection (8), be so set out without the written consent of the Minister, the sheriff or other person shall complete the minute, notice or document to the extent possible without that information and, when the Minister’s consent is given, a further minute, notice or document setting out all the information shall be completed for the same purpose, and the sheriff or other person, having complied with this subsection, is deemed to have complied with the Act, regulation or rule requiring the information to be set out in the minute, notice or document.

• Marginal note:Application for an order

  (10) A sheriff or other person who is unable, because of subsection (8) or (9), to comply with any law or rule of court is bound by any order made by a judge of the Federal Court, on an ex parte application by the Minister, for the purpose of giving effect to the proceeding, charge, lien, priority or binding interest.

• Marginal note:Deemed security

  (10.1) When a charge, lien, priority or binding interest created under subsection (5) by filing, registering or otherwise recording a memorial under subsection (4) is registered in accordance with subsection 87(1) of the Bankruptcy and Insolvency Act, it is deemed

  • (a) to be a claim that is secured by a security and that, subject to subsection 87(2) of that Act, ranks as a secured claim under that Act; and

  • (b) to also be a claim referred to in paragraph 86(2)(a) of that Act.

• Marginal note:Details in certificates and memorials

  (11) Notwithstanding any law of Canada or of a province, in any certificate made under subsection (1) in respect of a debtor, in any memorial evidencing the certificate or in any writ or document issued for the purpose of collecting an amount certified, it is sufficient for all purposes

  • (a) to set out, as the amount payable by the debtor, the aggregate of amounts payable by the debtor without setting out the separate amounts making up that aggregate; and

  • (b) to refer to the rate of interest or penalty to be charged on the separate amounts making up the amount payable in general terms as

    • (i) in the case of interest, interest at the prescribed rate under this Part applicable from time to time on amounts payable to the Receiver General, without indicating the specific rates of interest to be charged on each of the separate amounts or to be charged for any particular period of time, or

    • (ii) in the case of a penalty, a penalty under section 280.1 on amounts payable to the Receiver General.