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|
(a) the amount was taken into account as an
amount required to be paid by the person in
respect of one of their fiscal months and the
Minister has assessed the person for the
month under section 39; or
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|
(b) the amount was an amount assessed
under section 39.
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| Application
for refund
|
(4) A refund of an amount shall not be paid
to a person unless the person files with the
Minister an application for the refund in the
prescribed form and manner within two years
after the person paid the amount.
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|
| Restriction on
refunds, etc.
|
34. (1) A refund of an amount under this Act
shall not be paid to a person to the extent that
it can reasonably be regarded that
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|
(a) the amount has previously been
refunded, remitted, applied or paid to that
person under this or any other Act of
Parliament;
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|
(b) the person has applied for a refund,
payment or remission of the amount under
any other Act of Parliament; or
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|
|
|
(c) the amount has been or will be refunded
to the person under section 32.
|
|
| Single
application
|
(2) Only one application may be made
under this Act for a refund with respect to any
matter.
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|
| Restriction re
trustees
|
35. If a trustee is appointed under the
Bankruptcy and Insolvency Act to act in the
administration of the estate of a bankrupt, a
refund under this Act that the bankrupt was
entitled to claim before the appointment shall
not be paid after the appointment unless all
returns required under this Act to be filed for
fiscal months of the bankrupt ending before
the appointment have been filed and all
amounts required under this Act to be paid by
the bankrupt in respect of those fiscal months
have been paid.
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|
| Overpayment
of refunds,
etc.
|
36. (1) If an amount is paid to, or applied to
a liability of, a person as a refund under this
Act and the person is not entitled to the amount
or the amount paid or applied exceeds the
refund or other payment to which the person
is entitled, the person shall pay to the Receiver
General an amount equal to the refund,
payment or excess on the day the amount is
paid to, or applied to a liability of, the person.
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|
| Effect of
reduction of
refund, etc.
|
(2) For the purpose of subsection (1), if a
refund or other payment has been paid to a
person in excess of the amount to which the
person was entitled and the amount of the
excess has, by reason of section 34, reduced
the amount of any other refund or other
payment to which the person would, but for
the payment of the excess, be entitled, the
person is deemed to have paid the amount of
the reduction to the Receiver General.
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|
|
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| Keeping
records
|
37. (1) Every person who collects or is
required to collect a charge shall keep all
records that are necessary to determine
whether they have complied with this Act.
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| Minister may
specify
information
|
(2) The Minister may specify in writing the
form a record is to take and any information
that the record must contain.
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|
| Language and
location of
record
|
(3) Unless otherwise authorized by the
Minister, a record shall be kept in Canada in
English or French.
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| Electronic
records
|
(4) Every person required under this Act to
keep a record who does so electronically shall
ensure that all equipment and software
necessary to make the record intelligible are
available during the retention period required
for the record.
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|
| Inadequate
records
|
(5) If a person fails to keep adequate records
for the purposes of this Act, the Minister may,
in writing, require the person to keep any
records that the Minister may specify, and the
person shall keep the records specified by the
Minister.
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|
| General
period for
retention
|
(6) Every person who is required to keep
records shall retain them until the expiry of six
years after the end of the year to which they
relate or for any other period that may be
prescribed.
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|
| Objection or
appeal
|
(7) If a person who is required under this Act
to keep records serves a notice of objection or
is a party to an appeal or reference under this
Act, the person shall retain every record that
pertains to the subject-matter of the objection,
appeal or reference until the objection, appeal
or reference is finally disposed of.
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|
| Demand by
Minister
|
(8) If the Minister is of the opinion that it is
necessary for the administration or
enforcement of this Act, the Minister may, by
a demand served personally or by registered or
certified mail, require any person required
under this Act to keep records to retain those
records for any period that is specified in the
demand, and the person shall comply with the
demand.
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|
| Permission for
earlier
disposal
|
(9) A person who is required under this Act
to keep records may dispose of them before
the expiry of the period during which they are
required to be kept if written permission for
their disposal is given by the Minister.
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|
| Requirement
to provide
information
|
38. (1) Despite any other provision of this
Act, the Minister may, by a notice served
personally or by registered or certified mail,
require a person resident in Canada or a person
who is not resident in Canada but who carries
on business in Canada to provide any
information or record.
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| Notice
|
(2) The notice shall set out
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|
|
(a) a reasonable period of not less than 90
days for the provision of the information or
record;
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|
|
(b) a description of the information or
record being sought; and
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|
|
(c) the consequences under subsection (7)
to the person of any failure to provide the
information or record being sought within
the period set out in the notice.
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|
| Review of
information
requirement
|
(3) The person on whom a notice of a
requirement is served may, within 90 days
after the service of the notice, apply to a judge
for a review of the requirement.
|
|
| Powers on
review
|
(4) On hearing an application in respect of
a requirement, a judge may
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|
(a) confirm the requirement;
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|
|
(b) vary the requirement if satisfied that it
is appropriate in the circumstances to do so;
or
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|
|
(c) set aside the requirement if satisfied that
it is unreasonable.
|
|
| Requirement
not
unreasonable
|
(5) For the purposes of subsection (4), a
requirement to provide information or a
record shall not be considered to be
unreasonable solely because the information
or record is under the control of or available to
a person who is not resident in Canada, if that
person is related, for the purposes of the
Income Tax Act, to the person served with the
notice of the requirement.
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|
| Time during
consideration
not to count
|
(6) The period between the day on which an
application for the review of a requirement is
made and the day on which the review is
decided shall not be counted in the
computation of
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|
|
(a) the period set out in the notice of the
requirement; or
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|
|
(b) the period within which an assessment
may be made under section 42.
|
|
| Consequence
of failure
|
(7) If a person fails to comply substantially
with a notice served under subsection (1) and
the notice is not set aside under subsection (4),
any court having jurisdiction in a civil
proceeding relating to the administration or
enforcement of this Act shall, on the motion of
the Minister, prohibit the introduction by that
person of any information or record described
in that notice.
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|
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|
| Assessment
|
39. (1) The Minister may assess a person for
any charge 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 assessed or make any
additional assessments that the circumstances
require.
|
|
| 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.
|
|
| Minister not
bound
|
(3) The Minister is not bound by any return,
application or information provided by or on
behalf of any person and may make an
assessment despite any return, application or
information provided or not provided.
|
|
| Refund on
reassessment
|
(4) If a person has paid an amount assessed
under this section in respect of a fiscal month
and the amount paid exceeds the amount
determined on reassessment to have been
payable by the person in respect of that fiscal
month, the Minister shall refund to the person
the amount of the excess and, for the purpose
of section 28, the refund is deemed to have
been required to be paid on the day on which
the amount was paid to the Minister.
|
|
| Determination
of refunds
|
(5) In making an assessment, the Minister
may take into account any refund payable to
the person being assessed under this Act. If the
Minister does so, the person is deemed to have
applied for the refund under this Act on the
day the notice of assessment is sent.
|
|
| Assessment of
refund
|
40. (1) On receipt of an application made by
a person for a refund under this Act, the
Minister shall, without delay, consider the
application and assess the amount of the
refund, if any, payable to the person.
|
|
| Reassessment
|
(2) The Minister may reassess or make an
additional assessment of the amount of a
refund despite any previous assessment of the
amount of the refund.
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|
| Payment
|
(3) If on assessment under this section the
Minister determines that a refund is payable to
a person, the Minister shall pay the refund to
the person.
|
|
| Restriction
|
(4) A refund shall not be paid until the
person has filed with the Minister all returns or
other records that are required to be filed
under this Act.
|
|
| Interest
|
(5) If a refund is paid to a person, the
Minister shall pay interest at the prescribed
rate to the person on the refund for the period
beginning on the day that is 30 days after the
day on which the application for the refund is
filed with the Minister and ending on the day
on which the refund is paid.
|
|
| Notice of
assessment
|
41. (1) After making an assessment under
this Act, the Minister shall send to the person
assessed a notice of the assessment.
|
|
| 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.
|
|
| Limitation
period for
assessments
|
42. (1) Subject to subsections (2) to (4), no
assessment in respect of any charge or other
amount payable by a person under this Act
shall be made more than four years after it
became payable by the person under this Act.
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|
| Exception
where
objection or
appeal
|
(2) A variation of an assessment, or a
reassessment, in respect of any charge or other
amount payable under this Act by a person
may be made at any time if the variation or
reassessment is made
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|
(a) to give effect to a decision on an
objection or appeal; or
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|
|
(b) with the written consent of an appellant
to dispose of an appeal.
|
|
| Exception
where 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,
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|
|
(a) made a misrepresentation that is
attributable to their neglect, carelessness or
wilful default; or
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|
|
(b) committed fraud with respect to a return
or an application for a refund filed under
this Act.
|
|
| Exception
where waiver
|
(4) An assessment in respect of any matter
specified in a waiver filed under subsection
(5) may be made at any time within the period
specified in the waiver unless the waiver has
been revoked under subsection (6), in which
case an assessment may be made at any time
during the six months that the waiver remains
in effect.
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|
| Filing waiver
|
(5) Any person may, within the time
otherwise limited by subsection (1) for an
assessment, waive the application of that
subsection 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.
|
|
| Revoking
waiver
|
(6) Any person who 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 six months after the notice is filed.
|
|
|
|
|
|
| Objection to
assessment
|
43. (1) Any person who has been assessed
and who objects to the assessment may, within
90 days after the date of the notice of the
assessment, 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.
|
|
| Issue to be
decided
|
(2) A notice of objection shall
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|
|
|
(a) reasonably describe each issue to be
decided;
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|
|
|
(b) specify in respect of each issue the relief
sought, expressed as the change in any
amount that is relevant for the purposes of
the assessment; and
|
|
|
|
(c) provide the facts and reasons relied on
by the person in respect of each issue.
|
|
| Late
compliance
|
(3) Despite subsection (2), if a notice of
objection does not include the information
required under paragraph (2)(b) or (c) in
respect of an issue to be decided that is
described in the notice, the Minister may, in
writing, request the person to provide the
information, and that paragraph is deemed to
be complied with in respect of the issue if,
within 60 days after the request is made, the
person submits the information in writing to
the Minister.
|
|
| Limitation on
objections
|
(4) Despite subsection (1), if a person has
filed a notice of objection to an assessment (in
this subsection referred to as the ``earlier
assessment'') and the Minister makes a
particular assessment under subsection (8) as
a result of the notice of objection, unless the
earlier assessment was made in accordance
with an order of a court vacating, varying or
restoring an assessment or referring an
assessment back to the Minister for
reconsideration and reassessment, the person
may object to the particular assessment in
respect of an issue
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|
|
|
(a) only if the person complied with
subsection (2) in the notice with respect to
that issue; and
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|
|
|
(b) only with respect to the relief sought in
respect of that issue as specified by the
person in the notice.
|
|
| Application of
subsection (4)
|
(5) Subsection (4) does not limit the right of
the person to object to the particular
assessment in respect of an issue that was part
of the particular assessment and not part of the
earlier assessment.
|
|
| Limitation on
objections
|
(6) 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.
|
|
| Acceptance of
objection
|
(7) The Minister may accept a notice of
objection even though it was not filed in the
prescribed form and manner.
|
|
| Consideration
of objection
|
(8) On receipt of a notice of objection, the
Minister shall, without delay, reconsider the
assessment and vacate or confirm it or make
a reassessment.
|
|
| Waiving
reconsideratio
n
|
(9) If, in a notice of objection, a person who
wishes to appeal directly to the Tax Court
requests the Minister not to reconsider the
assessment objected to, the Minister may
confirm the assessment without
reconsideration.
|
|
| Notice of
decision
|
(10) After reconsidering an assessment
under subsection (8) or confirming an
assessment under subsection (9), the Minister
shall notify the person objecting to the
assessment of the Minister's decision by
registered or certified mail.
|
|
| Extension of
time by
Minister
|
44. (1) If no objection to an assessment is
filed under section 43 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.
|
|
| 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.
|
|
| How
application
made
|
(3) An application must be made by
delivering or mailing, to the Chief of Appeals
in a Tax Services Office or Taxation Centre of
the Agency, the application accompanied by a
copy of the notice of objection.
|
|
| Defect in
application
|
(4) The Minister may accept an application
even though it was not made in accordance
with subsection (3).
|
|
| Duties of
Minister
|
(5) On receipt of an application, the
Minister shall, without delay, consider the
application and grant or refuse it, and shall
notify the person of the decision by registered
or certified mail.
|
|
| 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.
|
|
| Conditions -
grant of
application
|
(7) No application shall 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
|
|