Underused Housing Tax Act (S.C. 2022, c. 5, s. 10)

DIVISION 5Assessments

Marginal note:Assessment

• 33 (1) The Minister may assess a person for any amount of tax or other amount payable by the person under this Act and may, despite any previous assessment covering, in whole or in part, the same matter, vary the assessment, reassess the person or make any additional assessments that the circumstances require.

• Marginal note:Liability not affected

  (2) The liability of a person to pay an amount under this Act is not affected by an incorrect or incomplete assessment or by the fact that no assessment has been made.

• Marginal note:Minister not bound

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

• Marginal note:Assessment valid and binding

  (4) An assessment, subject to being vacated on an objection or appeal under this Act and subject to a reassessment, is deemed to be valid and binding.

• Marginal note:Assessment deemed valid

  (5) 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:Refund on reassessment

  (6) If a person has paid an amount assessed under this section and the amount paid exceeds the amount determined on reassessment to have been payable by the person, the Minister must refund to the person the amount of the excess, together with interest at the specified rate for the period beginning on the day the amount was paid by the person and ending on the day the refund is paid.

• Marginal note:Interest on cancelled amounts

  (7) Despite subsection (6), if a person has paid an amount of interest or penalty and the Minister waives or cancels that amount under section 26 or 48, the Minister must pay the amount to the person, together with interest on the amount at the specified 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 that section and ending on the day on which the amount is paid.

Marginal note:Restriction on payment by Minister

34 An amount under section 33 is not to be paid to a person by the Minister at any time, unless all returns of which the Minister has knowledge and that are required to be filed at or before that time by the person under this Act, the Excise Tax Act, the Income Tax Act, the Excise Act, 2001, the Air Travellers Security Charge Act, Part 1 of the Greenhouse Gas Pollution Pricing Act, the Select Luxury Items Tax Act, the Digital Services Tax Act and the Global Minimum Tax Act have been filed with the Minister.

Marginal note:Notice of assessment

• 35 (1) After making an assessment under this Act, the Minister must send to the person assessed a notice of the assessment.

• Marginal note:Payment of remainder

  (2) If the Minister has assessed a person for an amount, any portion of that amount then remaining unpaid is payable to the Receiver General as of the date of the notice of assessment.

Marginal note:Limitation period for assessments

• 36 (1) Subject to subsections (2) to (6) and (9), no assessment in respect of an amount of tax or other amount payable by a person under this Act must be made more than four years after it became payable by the person under this Act.

• Marginal note:Exception — objection or appeal

  (2) A variation of an assessment, or a reassessment, in respect of an amount of tax or other amount payable by a person under this Act may be made at any time if the variation or reassessment is made

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

  • (b) with the written consent of an appellant to dispose of an appeal; or

  • (c) to give effect to an alternative basis or argument advanced by the Minister under subsection (6).

• Marginal note:Exception — neglect or fraud

  (3) 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; or

  • (b) committed fraud with respect to a return filed under this Act.

• Marginal note:Exception — other year

  (4) 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 tax payable for a particular calendar year of the person that was in fact payable for another calendar year of the person, the Minister may at any time make an assessment for that other year in respect of that matter.

• Marginal note:Exception — failure to file return

  (5) An assessment in respect of a residential property of a person for a calendar year may be made at any time if the person to be assessed has not filed a return in respect of that property for the calendar year.

• Marginal note:Alternative basis or argument

  (6) 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 by a person under this Act, at any time after the period otherwise limited by subsection (1) 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 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) If a reassessment of a person is made that gives effect to an alternative basis or argument advanced by the Minister under subsection (6) in support of a particular assessment of the person, the Minister is not to reassess for an amount that is greater than the total amount of the particular assessment.

• Marginal note:Exception

  (8) Subsection (7) 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) for making the reassessment if this Act were read without reference to subsection (6).

• Marginal note:Exception — waiver

  (9) An assessment in respect of any matter specified in a waiver filed under subsection (10) may be made at any time within the period specified in the waiver unless the waiver has been revoked under subsection (11), in which case an assessment may be made at any time during the 180 days that the waiver remains in effect.

• Marginal note:Filing waiver

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

• Marginal note:Revoking waiver

  (11) Any person that has filed a waiver may revoke it by filing with the Minister a notice of revocation of the waiver in the prescribed form and manner. The waiver remains in effect for 180 days after the day on which the notice is filed.

DIVISION 6Objections to Assessment

Marginal note:Objection to assessment

• 37 (1) Any person that has been assessed and that objects to the assessment may, within 90 days after the day notice of the assessment is sent to the person, 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:Limitation on objections

  (2) 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

  (3) 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

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

• Marginal note:Waiving reconsideration

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

• Marginal note:Notice of decision

  (6) After reconsidering an assessment under subsection (4) or confirming an assessment under subsection (5), the Minister must notify the person objecting to the assessment of the Minister’s decision in writing.

Marginal note:Extension of time by Minister

• 38 (1) If no objection to an assessment is filed under section 37 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 Assistant Commissioner of the Appeals Branch of the Canada Revenue 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 must, without delay, consider the application and grant or refuse it, and must notify the person of the decision in writing.

• 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) An application is not to 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.

DIVISION 7Appeal

Marginal note:Extension of time by Tax Court of Canada

• 39 (1) A person that has made an application under section 38 may apply to the Tax Court of Canada to have the application granted after either

  • (a) the Minister has refused the application; or

  • (b) 90 days have elapsed after the day on which the application was made and the Minister has not notified the person of the Minister’s decision.

• Marginal note:When application may not be made

  (2) No application may be made after the expiry of 30 days after the day on which the decision referred to in subsection 38(5) is sent to the person.

• Marginal note:How application made

  (3) An application must be made by filing in the Registry of the Tax Court of Canada, in accordance with the Tax Court of Canada Act, three copies of the documents delivered or mailed under subsection 38(3).

• Marginal note:Copy to Commissioner

  (4) The Tax Court of Canada must send a copy of the application to the Commissioner.

• Marginal note:Powers of Tax Court of Canada

  (5) The Tax Court of Canada may dispose of an application by dismissing or granting it and, in granting it, the Court may impose any terms that it considers just or order that the notice of objection be deemed to be a valid objection as of the date of the order.

• Marginal note:When application to be granted

  (6) An application must not be granted under this section unless

  • (a) the application under subsection 38(1) was 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 under this section and the circumstances of the case, it would be just and equitable to grant the application, and

    • (iii) the application under subsection 38(1) was made as soon as circumstances permitted it to be made.

Marginal note:Appeal to Tax Court of Canada

• 40 (1) Subject to subsection (2), a person that has filed a notice of objection to an assessment may appeal to the Tax Court of Canada to have the assessment vacated or a reassessment made after

  • (a) the Minister has confirmed the assessment or has reassessed; or

  • (b) 180 days have elapsed after the day on which the notice of objection was filed and the Minister has not notified the person that the Minister has vacated or confirmed the assessment or has reassessed.

• Marginal note:No appeal

  (2) No appeal under subsection (1) may be instituted after the expiry of 90 days after the day on which notice that the Minister has reassessed or confirmed the assessment is sent to the person under subsection 37(6).

• Marginal note:Amendment of appeal

  (3) The Tax Court of Canada may, on any terms that it sees fit, authorize a person that has instituted an appeal in respect of a matter to amend the appeal to include any further assessment in respect of the matter that the person is entitled under this section to appeal.

Marginal note:Extension of time to appeal

• 41 (1) If no appeal to the Tax Court of Canada under section 40 has been instituted within the time limited by that section for doing so, a person may make an application to the Tax Court of Canada for an order extending the time within which an appeal may be instituted, and the Court may make an order extending the time for appealing and may impose any terms that it considers just.

• Marginal note:Contents of application

  (2) An application must set out the reasons why the appeal was not instituted within the time limited under section 40 for doing so.

• Marginal note:How application made

  (3) An application must be made by filing in the Registry of the Tax Court of Canada, in accordance with the Tax Court of Canada Act, three copies of the application together with three copies of the notice of appeal.

• Marginal note:Copy to Deputy Attorney General of Canada

  (4) The Tax Court of Canada must send a copy of the application to the office of the Deputy Attorney General of Canada.

• Marginal note:When order to be made

  (5) An order must not be made under this section unless

  • (a) the application is made within one year after the expiry of the time limited under section 40 for appealing; and

  • (b) the person demonstrates that

    • (i) within the time limited under section 40 for appealing, 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 appeal,

    • (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,

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

    • (iv) there are reasonable grounds for the appeal.