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

Interventions

Marginal note:Interventions

• 81.34 (1) On application, the Tribunal or Federal Court may make an order permitting any person to intervene in an appeal or a reference to it under this Part as a party thereto, if it is satisfied that the applicant has a substantial and direct interest in the subject-matter of the appeal or reference.

• Marginal note:Assistance

  (2) On application, the Tribunal or Federal Court may make an order permitting any person to render assistance to it by way of argument in an appeal or a reference to it under this Part, but such person shall not be added as a party thereto.

• Marginal note:Terms

  (3) The Tribunal or Federal Court may impose such terms and conditions as it deems appropriate in connection with an order under this section.

• Marginal note:Procedure

  (4) An application under subsection (1) shall be made by filing a notice of the application with the Tribunal or Court, as the case may be, and serving a copy of the notice on the parties to the appeal or reference at least fourteen days before the application is returnable.

• Marginal note:Matters considered

  (5) The Tribunal or Court, in any application under this section, shall consider the possibility of undue delay or prejudice or any other matter that it deems appropriate in exercising its discretion pursuant to this section.

81.35 [Repealed, R.S., 1985, c. 47 (4th Supp.), s. 52]

References

Marginal note:Reference to Federal Court

• 81.36 (1) The Minister may refer any question of law, fact or mixed law and fact relating to this Act to the Federal Court for hearing and determination.

• Marginal note:Contents of reference

  (2) A reference under subsection (1) shall set out

  • (a) the question to be determined;

  • (b) the names of any specific persons that the Minister seeks to have bound by the determination; and

  • (c) the facts and arguments on which the Minister intends to rely at the hearing.

• Marginal note:Service

  (3) A copy of a reference under subsection (1) shall be served by the Minister on the persons, if any, named in the reference pursuant to subsection (2) and on such other persons as, in the opinion of the Court, are likely to be affected by the determination of the question set out in the reference.

• Marginal note:Notice

  (4) Where a reference under subsection (1) is made to the Court and the Court is of the opinion that persons, other than those named in the reference pursuant to subsection (2), are likely to be affected by the determination of the question set out in the reference but that the identity of those persons is not known or readily ascertainable, the Court may direct that notice of the reference be given in such manner as it considers will most likely come to the attention of those other persons.

• Marginal note:Suspension of time limitations

  (5) The period beginning on the day the Minister institutes proceedings in the Court pursuant to subsection (1) to have a question determined and ending on the day the question is finally determined shall not be counted in determining

  • (a) the time limited by subsection 81.15(1) or 81.17(1) for serving a notice of objection by any person who is served with a copy of the reference pursuant to subsection (3) or who appears as a party at the hearing to determine the question;

  • (b) the time limited by section 81.19, 81.2 or 81.24 for instituting an appeal by any person referred to in paragraph (a); or

  • (c) the time limited by section 82 for commencing proceedings to recover any tax, penalty, interest or other sum payable under this Act by any person referred to in paragraph (a).

• Marginal note:Final and binding

  (6) A determination of the Federal Court under this section is, subject to an appeal, final and binding on any person who is served with a copy of the reference pursuant to subsection (3) or who appears as a party at the hearing to determine the question.

Marginal note:Reference to Federal Court

• 81.37 (1) If the Minister and a person agree in writing that a question of law, fact or mixed law and fact relating to this Act should be determined by the Federal Court, the question shall be determined by that Court under subsection 17(3) of the Federal Courts Act.

• Marginal note:Suspension of time limitations

  (2) The period beginning on the day proceedings are instituted in the Court pursuant to subsection (1) to have a question determined and ending on the day the question is finally determined shall not be counted in determining

  • (a) the time limited by subsection 81.15(1) or 81.17(1) for serving a notice of objection by the person who agreed to refer the question or any person who appears as a party at the hearing to determine the question;

  • (b) the time limited by section 81.19, 81.2 or 81.24 for instituting an appeal by any person referred to in paragraph (a); or

  • (c) the time limited by section 82 for commencing proceedings to recover any tax, penalty, interest or other sum payable under this Act by any person referred to in paragraph (a).

Payments by Minister on Appeals

Marginal note:Payment by Minister on appeal

• 81.38 (1) If the Tribunal, the Federal Court, the Federal Court of Appeal or the Supreme Court of Canada has, on the disposition of an appeal under this Part,

  • (a) vacated or varied an assessment or a determination of the Minister respecting an application under any of sections 68 to 69,

  • (b) referred an assessment or a determination described in paragraph (a) back to the Minister for reconsideration, or

  • (c) ordered the Minister to pay or repay any tax, penalty, interest or other sum,

  unless otherwise directed in writing by the person who served the notice of objection, the Minister shall, with all due dispatch, whether or not a further appeal is instituted,

  • (d) where the assessment or determination is referred back to the Minister, reconsider the assessment or determination and vary the assessment or determination or make a reassessment or a further determination in accordance with the decision of the Tribunal or Court, and

  • (e) pay or repay, or surrender any security accepted for the payment of, any tax, penalty, interest or other sum in accordance with the varied assessment or determination, the reassessment or further determination of the Minister or the decision or order of the Tribunal or Court.

• Marginal note:Provisions applicable to reconsideration of assessments

  (2) Subsections 81.15(5) to (11) and 81.16(2) and (3) apply, with such modifications as the circumstances require, to the reconsideration of an assessment under subsection (1) as if

  • (a) the words “or a notice of decision” were added immediately after the words “notice of assessment” in subsection 81.15(10) and paragraph (a) of the definition amount owing in subsection 81.15(11);

  • (b) the reference in subsection 81.15(10) to “subsection 81.14(2)” were a reference to “subsection 81.14(2) or 81.16(2)”; and

  • (c) the reference in paragraph (b) of the definition amount owing in subsection 81.15(11) to “subsection 81.14(1)” were a reference to “subsections 81.14(1), 81.16(1) and 81.38(1)”.

• Marginal note:Provisions applicable to reconsideration of determinations

  (3) Subsections 81.17(5) and (6) apply, with such modifications as the circumstances require, to the reconsideration of a determination under subsection (1) as if

  • (a) the reference in paragraph (b) of the definition amount payable in subsection 81.17(6) to “subsection 72(6)” were a reference to “subsections 72(6), 81.18(1) and 81.38(1)”; and

  • (b) the reference in that paragraph to “subsection 74(1)” were a reference to “subsections 74(1) and 81.18(2)”.

• Marginal note:Payment in other appeals

  (4) Where, having regard to the reasons given on the disposition of an appeal referred to in subsection (1), the Minister is satisfied that it would be just and equitable to make a payment to, or surrender any security furnished by or on behalf of, any other person who has served a notice of objection or instituted an appeal, the Minister may, with the consent of that person and subject to such terms and conditions as the Minister may prescribe, pay or repay to that person any tax, penalty, interest or other sum or surrender any security accepted for the payment thereof.

• Marginal note:Right of appeal preserved

  (5) Nothing in this section shall be construed as derogating from the right of the Minister to appeal from a decision of the Tribunal or the Federal Court on an appeal referred to in subsection (1), and any such appeal from a decision of the Tribunal shall proceed as if it were an appeal from the assessment or determination that was the subject of the decision.

• Marginal note:Interest on assessment

  (6) Subject to subsection (7), if a payment is made under subsection (1) or (4) in respect of an assessment, interest at the prescribed rate shall be paid, in respect of each day between the date of the notice of assessment and the day on which the payment was sent.

• Marginal note:Interest on amounts payable to person

  (7) If a person has paid an amount on account of the amount owing as set out in a notice of assessment or a notice of decision and a payment is made to that person under subsection (1) or (4) in respect of the assessment, interest at the prescribed rate shall be paid, in respect of each day between the day on which the amount was paid by that person and the day on which the payment was sent to that person.

• Marginal note:Interest on refunds

  (8) If a payment is made under subsection (1) or (4) in respect of an application under any of sections 68 to 69, interest at the prescribed rate shall be paid, in respect of each day between the day that is 30 days after the day on which the application was received by the Minister and the day on which the payment was sent.

• (8.1) [Repealed, 2001, c. 16, s. 33]

• (9) [Repealed, 2003, c. 15, s. 106]

Overpayments by Minister

Marginal note:Deemed tax

• 81.39 (1) Subject to subsection (4), if a person has

  • (a) received a drawback under section 70,

  • (b) received a payment under subsection 68.16(1) or (2), 72(6) or (7), 81.14(1), 81.16(1), (4) or (5), 81.18(1) or (3) or 120(7), or

  • (c) made a deduction under subsection 69(2), 73(1), (2) or (3), 74(1) or (3) or 81.18(2) or (4)

  to which that person was not entitled or in excess of the drawback, payment or deduction to which the person was entitled, the amount of the drawback, payment or deduction or the excess is deemed to be a tax under this Act payable by that person on the day the drawback, payment or deduction was made.

• Marginal note:Amount payable after disposition of appeal

  (2) If a person has received a payment under subsection 81.38(1), (6), (7) or (8) and, on the final disposition of the appeal by further appeal or otherwise, it is determined that the person was not entitled to the payment or that the payment was in excess of the payment to which the person was entitled, the amount of the payment or the excess is deemed to be a tax under this Act payable by that person on the day the payment was made.

• Marginal note:Amount payable after disposition of further appeal

  (3) If a person has received a payment under subsection 81.38(4), (6), (7) or (8) and, on the final disposition by further appeal or otherwise of the appeal referred to in subsection 81.38(1) on the basis of which the payment was made, it is determined that the person was not entitled to the payment or that the payment was in excess of the payment to which the person was entitled, the amount of the payment or the excess is deemed to be a tax under this Act payable by that person on the day the payment was made.

• Marginal note:Amount payable after recovery of payment

  (4) If a person is liable to pay an amount under subsection 68.15(3) or 68.21(3), that amount is deemed to be a tax under this Act payable by that person on the day the liability arose.

Administrative Charge under the Financial Administration Act

Marginal note:Dishonoured instruments

81.4 For the purposes of this Act and section 155.1 of the Financial Administration Act, any charge that becomes payable at any time by a person under the Financial Administration Act in respect of an instrument tendered in payment or settlement of an amount that is payable under this Act is deemed to be an amount that becomes payable by the person at that time under this Act. In addition, Part II of the Interest and Administrative Charges Regulations does not apply to the charge and any debt under subsection 155.1(3) of the Financial Administration Act in respect of the charge is deemed to be extinguished at the time the total of the amount and any applicable interest under this Act is paid.

Collection

Marginal note:Definitions

• 82 (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 other than Part IX. (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) Subject to subsection (3), 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 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 notice 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) the Minister commences an action to collect the tax debt; or

  • (c) the Minister, under section 81.1, 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 86(5) to (8), take any of the actions described in subsection 86(4) 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 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 on March 4, 2004.

• Marginal note:Exception where misrepresentation or fraud

  (3) Proceedings for the recovery of any tax, penalty, interest or other sum payable under this Act may be commenced in a court at any time if payment thereof was avoided by reason of a misrepresentation attributable to neglect, carelessness or wilful default or by reason of fraud.

• Marginal note:Recovery of penalties and fines for offence from corporation

  (4) Where a penalty or fine is imposed on a corporation pursuant to a conviction for an offence under this Act and the conviction or a certified copy thereof is produced to the Federal Court, the conviction shall be registered in the Court and, when registered, has the same force and effect, and all proceedings may be taken thereon, as if the conviction were a judgment obtained in the Court for a debt of the amount of the penalty or fine and costs, if any, specified in the conviction.

• Marginal note:Penalties and interest on judgments

  (5) Where a judgment is obtained for any tax, penalty, interest or other sum payable under this Act, including a certificate registered under section 83, the provisions of this Act by virtue of which a penalty or interest is payable for failure to pay or remit the sum apply, with such modifications as the circumstances require, to failure to pay the judgment debt, and the penalty and interest are recoverable in the same manner as the judgment debt.