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Excise Act, 2001 (S.C. 2002, c. 22)

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Act current to 2023-01-25 and last amended on 2022-12-15. Previous Versions

PART 6Enforcement (continued)

Third Party Claims (continued)

Marginal note:Order

 An applicant under section 280 is entitled to an order declaring that their interest in a seized or forfeited thing is not affected by the seizure or forfeiture and declaring the nature and extent of that interest at the time of the contravention on which the seizure or forfeiture is based if, on the hearing of an application made under section 280, the court is satisfied that the applicant

  • (a) acquired in good faith the interest in the thing before the contravention occurred;

  • (b) is innocent of any complicity and of any collusion in respect of the contravention; and

  • (c) exercised all reasonable care to satisfy themselves that any person likely to have possession of the thing was not likely to use it in connection with a contravention of this Act.

Marginal note:Appeal

 An applicant or the Crown may appeal an order made under section 281 to a court having appellate jurisdiction in other cases decided by the court that made the order and the appeal shall be asserted, heard and decided according to the ordinary procedure governing appeals to the appellate court.

Marginal note:Delivery to applicant

  •  (1) If an applicant’s interest in a seized thing is established under section 278, 281 or 282, the Minister shall, on the request of the applicant, direct that

    • (a) the thing be given to the applicant; or

    • (b) an amount calculated on the basis of the interest of the applicant in the thing as established be paid to the applicant.

  • Marginal note:Limit on amount paid

    (2) The total amount paid under paragraph (1)(b) in respect of a thing shall, if it was sold or otherwise disposed of under this Act, not exceed the proceeds of the sale or disposition, if any, less any costs incurred by Her Majesty in respect of the thing and, if there are no proceeds of a disposition of a thing under this Act, no payment shall be made under that paragraph in respect of the thing.

Collection

Marginal note:Definitions

  •  (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 Part. (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 by a person under this Act. (dette fiscale)

  • Marginal note:Debts to Her Majesty

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

  • 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 Act, 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 in respect of the tax debt, or a notice referred to in subsection 254(1) or 294(1) in respect of the tax debt, is sent to or served on the person, after March 3, 2004, on the day that is 90 days after the day on which the last 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) in any other case, 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) the Minister commences an action to collect the tax debt; or

    • (c) the Minister, under subsection 188(1), 289(7), 295(4), 296(2) or 297(3), 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 may not, because of any of subsections 286(2) to (7), take any of the actions described in subsection 286(1) 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:Interest on judgments

    (3) If a judgment is obtained for any duty, interest or other amount payable under this Act, including a certificate registered under section 288, the provisions of this Act by which interest is payable for failure to pay an amount apply, with any modifications that the circumstances require, to the failure to pay the judgment debt, and the interest is recoverable in like manner as the judgment debt.

  • Marginal note:Litigation costs

    (4) If an amount is payable by a person to Her Majesty because of an order, judgment or award of a court in respect of the costs of litigation relating to a matter to which this Act applies, sections 285 and 288 to 294 apply to the amount as if the amount were owing by the person on account of duty payable by the person under this Act.

  • 2002, c. 22, s. 284
  • 2004, c. 22, s. 47
  • 2010, c. 25, s. 123

Marginal note:Security

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

  • Marginal note:Surrender of excess security

    (2) If 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 of it, the Minister must surrender the security to the extent that its value exceeds the amount, at the time the request is received by the Minister, of any duty, interest or other amount for the payment of which it was furnished.

Marginal note:Collection restrictions

  •  (1) If a person is liable for the payment of an amount under this Act, the Minister shall not, for the purpose of collecting the amount, take any of the following actions until the end of 90 days after the date of a notice of assessment under this Act or a notice of penalty under section 254 is issued in respect of the amount:

    • (a) commence legal proceedings in a court;

    • (b) certify the amount under section 288;

    • (c) require a person to make a payment under subsection 289(1);

    • (d) require an institution or a person to make a payment under subsection 289(2);

    • (e) [Repealed, 2006, c. 4, s. 122]

    • (f) require a person to turn over moneys under subsection 292(1); or

    • (g) give a notice, issue a certificate or make a direction under subsection 293(1).

  • Marginal note:No action after service of notice of objection

    (2) If a person has served a notice of objection under this Act to an assessment of an amount payable under this Act, the Minister shall not, for the purpose of collecting the amount in controversy, take any of the actions described in subsection (1) until the end of 90 days after the date of the notice to the person that the Minister has confirmed or varied the assessment.

  • Marginal note:No action after request for decision

    (3) If a person has requested a decision of the Minister under section 271 in respect of a penalty imposed under section 254, the Minister shall not, for the purpose of collecting the penalty, take any of the actions described in subsection (1) until the end of 90 days after the date of the decision.

  • Marginal note:No action after making appeal to Tax Court

    (4) If a person has appealed to the Tax Court from an assessment of an amount payable under this Act, the Minister shall not, for the purpose of collecting the amount in controversy, take any of the actions described in subsection (1) before the day on which a copy of the decision of the Court is mailed to the person or the day on which the person discontinues the appeal, whichever is the earlier.

  • Marginal note:No action after making appeal to Federal Court

    (5) If a person has appealed to the Federal Court from a decision of the Minister under section 273 in respect of a penalty imposed under section 254, the Minister shall not, for the purpose of collecting the penalty, take any of the actions described in subsection (1) before the day on which a copy of the decision of the Court is mailed to the person or the day on which the person discontinues the appeal, whichever is the earlier.

  • Marginal note:No action pending determination by court

    (6) If a person has agreed under subsection 204(1) that a question should be determined by the Tax Court, or if a person is served with a copy of an application made under subsection 205(1) to that Court for the determination of a question, the Minister shall not take any of the actions described in subsection (1) for the purpose of collecting that part of an amount assessed, the liability for payment of which will be affected by the determination of the question, before the day on which the question is determined by the Court.

  • Marginal note:Action after judgment

    (7) Despite any other provision in this section, if a person has served a notice of objection under this Act to an assessment or has appealed to the Tax Court from an assessment and agrees in writing with the Minister to delay proceedings on the objection or appeal, as the case may be, until judgment has been given in another action before the Tax Court, the Federal Court of Appeal or the Supreme Court of Canada in which the issue is the same or substantially the same as that raised in the objection or appeal of the person, the Minister may take any of the actions described in subsection (1) for the purpose of collecting the amount assessed, or a part of it, determined in a manner consistent with the judgment of the Court in the other action at any time after the Minister notifies the person in writing that the judgment has been given by the Court in the other action.

  • Marginal note:No restriction on collection of large amounts

    (8) Despite subsections (1) to (7), if, at any time, the total of all amounts that a person has been assessed under this Act and that remain unpaid exceeds $1,000,000, the Minister may collect up to 50% of the total.

  • 2002, c. 22, s. 286
  • 2006, c. 4, s. 122

Marginal note:Over $10,000,000 — security

  •  (1) The Minister may, by sending a notice to a person, require security in a form satisfactory to the Minister and in an amount up to a specified amount that is the greater of $0 and the amount that is determined by the formula

    (A/2) – B – $10,000,000

    where

    A
    is the total of all amounts, each of which is
    • (a) an amount that the person has been assessed under this Act in respect of which a portion remains unpaid, or

    • (b) a penalty that the person is liable to pay under this Act in respect of which a portion remains unpaid; and

    B
    is the greater of $0 and the amount that is determined by the formula

    C – (D/2)

    where

    C
    is the total of all amounts that the person has paid against the amount determined for A in the first formula in this subsection, and
    D
    is the amount determined for A in the first formula in this subsection.
  • Marginal note:When security to be furnished

    (2) The security required under subsection (1) shall be furnished to the Minister no later than 60 days following the day on which the Minister required the security.

  • Marginal note:Types of security

    (3) The types of security acceptable for the purpose of subsection (1) are those types of security that are acceptable for the purpose of paragraph 23(3)(b).

  • Marginal note:Failure to comply

    (4) Despite subsections 286(1) to (7), the Minister may collect an amount equivalent to the amount of security that was required under subsection (1) if the security required under that subsection is not furnished to the Minister as set out in this section.

  • 2016, c. 7, s. 76

Marginal note:Authorization to proceed without delay

  •  (1) Despite section 286, if, on ex parte application by the Minister, 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 a person would be jeopardized by a delay in the collection of the amount, the judge shall, on such terms as the judge considers reasonable in the circumstances, authorize the Minister to take without delay any of the actions described in subsection 286(1) with respect to the amount.

  • Marginal note:Notice of assessment not sent

    (2) An authorization under subsection (1) in respect of an amount assessed may be granted by a judge even though a notice of assessment in respect of that amount has not been sent to the person at or before the time the application is made if the judge is satisfied that the receipt of the notice of assessment by the person would likely further jeopardize the collection of the amount, and for the purposes of sections 284, 288 to 290, 292 and 293, the amount in respect of which an authorization is so granted is deemed to be an amount payable under this Act.

  • Marginal note:Affidavits

    (3) Statements contained in an affidavit of a person filed in the context of an application under this section may be based on the belief of the person.

  • Marginal note:Service of authorization and of notice of assessment

    (4) An authorization granted under this section in respect of a person shall be served by the Minister on the person within 72 hours after it is granted unless the judge orders the authorization to be served at some other time specified in the authorization. If a notice of assessment has not been sent to the person at or before the time of the application, the notice of assessment shall be served together with the authorization.

  • Marginal note:How service effected

    (5) For the purposes of subsection (4), service on a person shall be effected by

    • (a) personal service on the person; or

    • (b) service in accordance with the directions, if any, of a judge.

  • Marginal note:Application to judge for direction

    (6) If service on a person cannot reasonably be effected as and when required under this section, the Minister may, as soon as practicable, apply to a judge for further direction.

  • Marginal note:Review of authorization

    (7) If a judge of a court has granted an authorization under this section in respect of a person, the person may, on six clear days notice to the Deputy Attorney General of Canada, apply to a judge of the court to review the authorization.

  • Marginal note:Limitation period for review application

    (8) An application under subsection (7) shall be made

    • (a) within 30 days after the authorization was served on the person in accordance with this section; or

    • (b) within such further time as a judge may allow, on being satisfied that the application was made as soon as practicable.

  • Marginal note:Hearing in camera

    (9) An application under subsection (7) may, on the application of the person, be heard in camera, if the person establishes to the satisfaction of the judge that the circumstances of the case justify in camera proceedings.

  • Marginal note:Disposition of application

    (10) On an application under subsection (7), the judge shall determine the question summarily and may confirm, set aside or vary the authorization and make any other order the judge considers appropriate.

  • Marginal note:Directions

    (11) If any question arises as to the course to be followed in connection with anything done or being done under this section and there is no direction in this section with respect to it, a judge may give any direction the judge considers appropriate.

  • Marginal note:No appeal from review order

    (12) No appeal lies from an order of a judge made under subsection (10).

 
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