New Harmonized Value-added Tax System Regulations, No. 2

Marginal note:Transfer of residential condominium unit after June 2010

• 52 (1) If

  • (a) a particular taxable supply by way of sale of a residential condominium unit is made in a specified province to a person under an agreement, evidenced in writing, entered into between the supplier (in this section referred to as the “original vendor”) and the person on or before the qualifying date for the specified province,

  • (b) neither ownership nor possession of the unit is transferred to the person under the agreement before July, 1, 2010, and

  • (c) possession of the unit is transferred to the person under the agreement at any time on or after July, 1, 2010,

  the following rules apply:

  • (d) no tax is payable under subsection 165(2) of the Act in respect of the particular supply,

  • (e) for the purposes of Part IX of the Act, the original vendor is deemed to have made another taxable supply in respect of the unit and to have collected, at the earlier of the time ownership of the unit is transferred to the person and the time possession of the unit is transferred to the person under the agreement, tax under Division II of Part IX of the Act in respect of the other supply equal to 2% of the consideration for the particular supply, and

  • (f) for the purposes of paragraph (e) and Division 4, if the value of the consideration for the particular supply is less than the amount that would be the fair market value of the unit at the time the agreement is entered into if the construction of the unit or, in the case of a substantial renovation of the unit, the last substantial renovation of the unit, were substantially completed at that time, the consideration is deemed to be equal to that amount.

• Marginal note:Assignment of agreement

  (2) The rules in paragraphs (1)(d) to (f) apply in respect of an agreement described in paragraph (1)(a) in respect of a residential condominium unit if the following circumstances apply:

  • (a) the agreement is assigned to a particular person;

  • (b) neither ownership nor possession of the unit is transferred to any person under the agreement before July 1, 2010;

  • (c) possession of the unit is transferred to the particular person under the agreement at any time on or after July 1, 2010; and

  • (d) the following conditions are met in respect of the assignment of the agreement to the particular person and in respect of every other assignment of the agreement made prior to the assignment to the particular person:

    • (i) a novation of the agreement has not occurred,

    • (ii) the original vendor of the complex and the person that assigns the agreement deal with each other at arm’s length and are not associated with each other, and

    • (iii) neither the original vendor of the complex nor any person that does not deal at arm’s length with, or that is associated with, the original vendor acquires an interest in the unit.

  In applying those rules, the reference to the “person” in paragraph (1)(e) is to be read as a reference to the “particular person”.

• Marginal note:First reseller

  (3) If a person (in this section referred to as the “first reseller”) makes a taxable supply by way of sale (in this section referred to as the “first resale”) of a residential condominium unit to a particular person under an agreement evidenced in writing and the first reseller is the recipient of a previous supply of the unit that in respect of which no tax is payable under subsection 165(2) of the Act pursuant to subsection (1) or (2), no tax is payable under subsection 165(2) of the Act in respect of the first resale if the following conditions are satisfied:

  • (a) the first reseller acquires the unit primarily for the purpose of making a taxable supply by way of sale of the unit;

  • (b) possession of the unit is transferred to the first reseller after the construction or last substantial renovation of the unit is substantially completed;

  • (c) the original vendor of the unit and the first reseller deal with each other at arm’s length and are not associated with each other;

  • (d) either

    • (i) the first reseller is a builder of the unit that is described in paragraphs (b) and (d) of the definition builder in subsection 123(1) of the Act but not in paragraphs (a), (c) and (e) of that definition and all or substantially all of the construction of the unit, or all or substantially all of the last substantial renovation of the unit and any subsequent construction or renovation, as the case may be, that is completed at the earlier of the time ownership of the unit is transferred and the time possession of the unit is transferred by the first reseller to the particular person has been completed by a person other than the first reseller, or

    • (ii) the first reseller is a builder of the unit that is described only in paragraph (d) of the definition builder in subsection 123(1) of the Act; and

  • (e) neither the original vendor of the unit nor any person that does not deal at arm’s length with, or that is associated with, the original vendor acquires an interest in the unit.

• Marginal note:First reseller — disclosure

  (4) If a first reseller makes a first resale of a residential condominium unit to a particular person and no tax is payable under subsection 165(2) of the Act in respect of the first resale pursuant to subsection (3), or no tax would have been payable under subsection 165(2) of the Act in respect of the first resale pursuant to subsection (3) if that subsection were read without reference to paragraph (3)(e), the first reseller shall indicate in writing to the particular person

  • (a) the name of the original vendor of the unit; and

  • (b) that the first reseller was the recipient of a previous supply of the unit in respect of which no tax was payable under subsection 165(2) of the Act pursuant to subsection (1) or (2), as the case may be.

• Marginal note:Input tax credit — first reseller

  (5) If a particular person makes a particular taxable supply by way of sale of a residential condominium unit to another person under an agreement evidenced in writing, the particular person is the recipient of a previous supply of the unit in respect of which no tax is payable under subsection 165(2) of the Act pursuant to subsection (1) or (2) and tax under subsection 165(2) of the Act is payable in respect of the particular supply, for the purposes of determining an input tax credit of the particular person and for the purposes of section 54, the particular person is deemed to have received another taxable supply in respect of the unit and to have paid, at the time possession of the unit is transferred to the other person, tax in respect of the other supply equal to 2% of the consideration for the previous supply made to the particular person by the original vendor of the unit.

• Marginal note:Subsequent reseller

  (6) If a person (in this section referred to as the “subsequent reseller”) makes a taxable supply by way of sale (in this section referred to as the “subsequent resale”) of a residential condominium unit to a particular person under an agreement evidenced in writing and the subsequent reseller is the recipient of a previous supply of the unit in respect of which no tax is payable under subsection 165(2) of the Act pursuant to subsection (3) or this subsection, no tax is payable under subsection 165(2) of the Act in respect of the subsequent resale if the following conditions are satisfied:

  • (a) the subsequent reseller acquires the unit primarily for the purpose of making a taxable supply by way of sale of the unit;

  • (b) either

    • (i) the subsequent reseller is a builder of the unit that is described in paragraphs (b) and (d) of the definition builder in subsection 123(1) of the Act but not in paragraphs (a), (c) and (e) of that definition and all or substantially all of the construction of the unit, or all or substantially all of the last substantial renovation of the unit and any subsequent construction or renovation, as the case may be, that is completed at the earlier of the time ownership of the unit is transferred and the time possession of the unit is transferred by the subsequent reseller to the particular individual has been completed by a person other than the subsequent reseller, or

    • (ii) the subsequent reseller is a builder of the unit that is described only in paragraph (d) of the definition builder in subsection 123(1) of the Act; and

  • (c) neither the original vendor of the unit nor any person that does not deal at arm’s length with, or that is associated with, the original vendor acquires an interest in the unit.

• Marginal note:Subsequent reseller — disclosure

  (7) If a subsequent reseller makes a subsequent resale of a residential condominium unit to a particular person and no tax is payable under subsection 165(2) of the Act in respect of the subsequent resale pursuant to subsection (6), or no tax would have been payable under subsection 165(2) of the Act in respect of the subsequent resale pursuant to subsection (6) if that subsection were read without reference to paragraph (6)(c), the subsequent reseller shall indicate in writing to the particular person

  • (a) the name of the original vendor of the unit; and

  • (b) that the subsequent reseller was the recipient of a previous supply of the unit in respect of which no tax was payable under subsection 165(2) of the Act pursuant to subsection (3) or (6), as the case may be.

• Marginal note:Agreement not indicating tax

  (8) If

  • (a) a first reseller or a subsequent reseller of a residential condominium unit makes a taxable supply by way of sale of the unit in a specified province under an agreement of purchase and sale,

  • (b) tax under subsection 165(2) of the Act becomes payable in respect of the taxable supply,

  • (c) the agreement does not indicate in writing

    • (i) the total tax payable in respect of the supply in a manner that clearly indicates the amount of that total and whether or not that amount takes into account any amount to be paid or credited in accordance with subsection 254(4) or 256.21(3) of the Act, and

    • (ii) the total of the rates at which tax is payable in respect of the supply, and

  • (d) the first reseller or subsequent reseller, as the case may be, is required under section 221 of the Act to collect tax in respect of the supply,

  the following rules apply:

  • (e) for the purposes of Part IX of the Act the consideration for the supply is deemed to be the amount determined by the formula

    (100%/A) × B

    where

    A

    is the total of 100% and the rate at which tax under subsection 165(2) of the Act is calculated in respect of the supply, and

    B

    is the consideration for the supply as otherwise determined under Part IX of the Act,

  • (f) for the purposes of Part IX of the Act, the first reseller or subsequent reseller, as the case may be, is deemed to have collected, and the recipient is deemed to have paid, on the earlier of the day ownership of the unit is transferred to the recipient and the day possession of the unit is transferred to the recipient under the agreement, tax under subsection 165(2) of the Act calculated on the consideration for the supply, and

  • (g) for the purposes of Part IX of the Act, if the recipient is entitled to claim a rebate under subsection 254(2) of the Act in respect of the unit and the first reseller or subsequent reseller, as the case may be, pays to, or credits to or in favour of, the recipient the amount of the rebate under that subsection, the recipient is deemed to be entitled to claim a rebate in respect of the unit under subsection 256.21(1) of the Act, the amount of which is determined under subsection 41(2) or (3) and the first reseller or subsequent reseller, as the case may be, is deemed to have credited in favour of the recipient the amount of that rebate in accordance with subsection 256.21(3) of the Act on the earlier of the day ownership of the unit is transferred to the recipient and the day possession of the unit is transferred to the recipient under the agreement.

• Marginal note:Self-assessment on acquisition of real property

  (9) If a particular person is the recipient of a taxable supply by way of sale of a residential condominium unit from another person, tax under subsection 165(2) of the Act is payable in respect of the supply, no tax would have been payable under subsection 165(2) of the Act in respect of the supply if subsection (2) were read without reference to subparagraph (2)(d)(iii), subsection (3) were read without reference to paragraph (3)(e) or subsection (6) were read without reference to paragraph (6)(c), whichever is applicable in respect of the taxable supply, and the other person would, in the absence of this subsection, be required under section 221 of the Act to collect tax in respect of the supply, the following rules apply:

  • (a) despite section 221 of the Act, the other person is not required to collect tax under subsection 165(2) of the Act in respect of the supply;

  • (b) the particular person shall,

    • (i) if the particular person is a registrant and acquired the unit for use or supply primarily in the course of commercial activities of the particular person, on or before the day on or before which the particular person’s return for the reporting period in which the tax became payable is required to be filed, pay the tax payable under subsection 165(2) of the Act in respect of the supply to the Receiver General and report that tax in that return, and

    • (ii) in any other case, on or before the last day of the month following the calendar month in which the tax became payable, pay the tax payable under subsection 165(2) of the Act to the Receiver General and file with the Minister in prescribed manner a return in respect of the tax under subsection 165(2) of the Act in prescribed form containing prescribed information; and

  • (c) subsection (8) does not apply in respect of the supply.

  • (d) [Repealed, SOR/2011-56, s. 34]