66 Limitation on prosecution
67 Limitations Act
68 Certificates as evidence
69 Powers of Minister
70 Waiver or cancellation of penalties or
interest
71 Regulations
Part 5
Transitional Provisions, Consequential
Amendments, Repeal and
Coming into Force
72 Transitional provisions
73 Transitional regulations
74 Consequential amendment
75 Repeal
76 Coming into force
HER MAJESTY, by and with
the advice and consent of the Legislative Assembly of Alberta, enacts as
follows:
Definitions
1 In this Act,
(a) “additive”
includes a fuel detergent, an oxidation inhibitor, a fuel antifreeze and an
octane enhancer, but does not include a blend stock;
(b) “arm’s
length” means arm’s length within the meaning of section 251 of the Income
Tax Act (Canada);
(c) “assess”
includes reassess;
(d) “aviation
fuel” means any fuel that has been refined or produced specifically for use in
an aircraft;
(e) “blend
stock” means a blend stock as defined in the regulations;
(f) “blended
fuel” means a mixture of fuel and a blend stock where the blend stock comprises
5% or more of the volume of the mixture;
(g) “consumer”
means a person who purchases fuel in or imports fuel into Alberta
(i) for use by that person,
(ii) for use by another person at the first person’s expense, or
(iii) on behalf of, or as agent for, a principal for use by the
principal or by another person at the principal’s expense;
(h) “Court”
means the Court of Queen’s Bench;
(i) “Crown”
means the Crown in right of Alberta;
(j) “direct
remitter” means a person who is required to remit tax to the Minister pursuant
to section 12;
(k) “distributor
of liquefied petroleum gas” means a person who sells liquefied petroleum gas to
another person for resale;
(l) “dwelling
house” means all or any part of a building or structure that is occupied as a
permanent or temporary residence and includes any building that is connected to
it by a doorway or by a covered or enclosed passageway;
(m) “farm
fuel distribution allowance” means the farm fuel distribution allowance
referred to in section 16;
(n) “fuel”
means any combustible gas or combustible liquid that may be used to generate
power by means of an internal combustion or turbine engine and includes
additives to that fuel, but does not include a blend stock or any substance
excluded from the definition of fuel by the regulations;
(o) “fuel
tax exemption certificate” means a certificate, permit, card or other instrument
issued by the Minister under section 9 identifying the certificate holder as a
person who is entitled to purchase fuel exempt from tax for a prescribed
purpose or use;
(p) “interjurisdictional
carrier” means a person who
(i) owns or operates a commercial vehicle as defined under the Traffic
Safety Act or a fleet of commercial vehicles engaged in interprovincial or
international travel, and
(ii) is registered under the International Fuel Tax Agreement;
(q) “liquefied
petroleum gas” means a fuel that is composed predominantly of any of the
following substances, or a mixture of them:
(i) propane;
(ii) propylene;
(iii) butane (normal or isobutane);
(iv) butylene;
(v) any other prescribed substance;
(r) “locomotive
fuel” means fuel used to operate a railway locomotive or to provide heat or
light to railway cars attached to a railway locomotive;
(s) “marked
fuel” means fuel that is coloured or identified in accordance with the
regulations;
(t) “Minister”
means the Minister determined under section 16 of the Government
Organization Act as the Minister responsible for this Act;
(u) “motor
vehicle” means a vehicle powered by an internal combustion engine, but does not
include an aircraft or a boat;
(v) “officer”
means an officer as defined in the regulations;
(w) “owner”
means the legal owner or a person in lawful possession;
(x) “person”
includes a partnership, a trust and an Indian band;
(y) “possession”
means
(i) the state of having in one’s own personal possession, or
(ii) the state of knowingly having in the actual possession of another
person for one’s own use or benefit or the use or benefit of another person;
(z) “prescribed”
means prescribed or otherwise provided for in the regulations;
(aa) “purchase”
means to purchase or otherwise obtain fuel with or without giving
consideration;
(bb) “rebrand”
means
(i) to reclassify a type of fuel,
(ii) to change a fuel to another type of fuel or to a non‑taxable
product, or
(iii) to change a non‑taxable product that was originally a fuel
back to a fuel;
(cc) “recipient”
means
(i) a consumer or any other person who purchases fuel,
(ii) a person who imports fuel into Alberta,
(iii) a person who sells or removes fuel from a terminal or refinery,
(iv) a distributor of liquefied petroleum gas,
(v) a person who blends fuel,
(vi) a person who rebrands fuel,
(vii) a person who is required by this Act to pay tax on fuel used in
Alberta, or
(viii) any other prescribed person;
(dd) “reduced
price” means the total amount, including tax, otherwise payable per litre of
fuel less the amount of tax and the amount set as the farm fuel distribution
allowance;
(ee) “registrant”
means a person registered under section 22;
(ff) “sell”
means to sell or otherwise supply fuel with or without receiving consideration;
(gg) “tax‑exempt
fuel” means fuel that is purchased exempt from tax under section 8 and includes
marked fuel;
(hh) “terminal”
means a fuel distribution facility that is designated by the Minister as a
terminal;
(ii) “vendor”
means a person who sells fuel in Alberta to a consumer.
Crown bound
2 This Act binds the Crown.
Conflict with IFTA
3 If there is a conflict between the
International Fuel Tax Agreement and this Act, the International Fuel Tax
Agreement applies to the extent of the conflict.
Part 1
Tax
Division 1
Imposition and Recovery of Tax
Tax payable by
recipient
4(1) This
section does not apply to locomotive fuel or liquefied petroleum gas.
(2) Every recipient other than an
interjurisdictional carrier shall pay to the Crown a tax on fuel at the time
the recipient
(a) purchases
fuel in Alberta,
(b) imports
fuel into Alberta for the purpose of resale,
(c) purchases
fuel outside Alberta if the fuel is brought into Alberta and put, in Alberta,
into the fuel system of an internal combustion engine, other than a railway
locomotive, without first having been sold or resold in Alberta,
(d) sells
or removes fuel in Alberta from a terminal or refinery,
(e) blends
fuel in Alberta, or
(f) rebrands
fuel in Alberta.
(3) Notwithstanding subsection (2), no
tax is payable under this section
(a) at
the time
(i) fuel is imported into Alberta for delivery to a terminal or
refinery,
(ii) fuel is purchased by a direct remitter from another direct
remitter,
(iii) fuel is exported from Alberta in bulk for use outside Alberta,
(iv) marked fuel is purchased by a registrant who sells fuel exempt
from tax, or
(v) fuel is purchased exempt from tax under section 8,
or
(b) in
any other prescribed circumstance.
(4) Every recipient who is an interjurisdictional
carrier shall pay to the Crown a tax
(a) on
fuel at the time the recipient purchases fuel in Alberta, and
(b) on
fuel purchased by the recipient outside Alberta and used within Alberta in a
commercial vehicle of which the recipient is the owner or operator that meets
the specifications of a qualified motor vehicle under the International Fuel
Tax Agreement.
(5) Any
taxes paid by an interjurisdictional carrier under subsection (4) shall be
adjusted by the Minister in accordance with the terms and conditions of the
International Fuel Tax Agreement and any resolutions made pursuant to that
Agreement.
Tax payable on
locomotive fuel
5 Every recipient shall pay to the Crown a
tax with respect to locomotive fuel that is
(a) purchased
outside or inside Alberta, and
(b) used
in a railway locomotive operated by the recipient in Alberta.
Tax payable on liquefied
petroleum gas
6(1) Every
recipient who is a distributor of liquefied petroleum gas shall pay to the
Crown a tax on liquefied petroleum gas at the time
(a) the
distributor of liquefied petroleum gas sells the liquefied petroleum gas in
Alberta to a vendor or other recipient, or
(b) the
distributor of liquefied petroleum gas delivers liquefied petroleum gas to a
dispensing system in Alberta, other than a bulk storage tank, owned or operated
by the distributor of liquefied petroleum gas that is used to dispense
liquefied petroleum gas for use as a motive fuel.
(2) Every
recipient other than a distributor of liquefied petroleum gas shall pay to the
Crown a tax on liquefied petroleum gas at the time the recipient purchases the
liquefied petroleum gas.
(3) Notwithstanding
subsections (1) and (2), no tax is payable under this section
(a) at
the time
(i) liquefied petroleum gas is sold by a distributor of liquefied
petroleum gas to another distributor of liquefied petroleum gas,
(ii) liquefied petroleum gas is exported from Alberta in bulk for use
outside Alberta,
(iii) liquefied petroleum gas is purchased from a dispensing system
other than a dispensing system used to dispense liquefied petroleum gas for use
as a motive fuel, if the liquefied petroleum gas is purchased for a use other
than as a motive fuel, or
(iv) liquefied petroleum gas is purchased exempt from tax under
section 8,
or
(b) in
any other prescribed circumstance.
Tax payable on blended
fuel
7 Tax is payable only on that portion of
blended fuel that is not a blend stock.
Tax‑exempt
purchases
8(1) A
consumer is exempt from paying tax on fuel if
(a) the
consumer provides at the time of purchase a valid fuel tax exemption
certificate or other prescribed evidence of exemption, and
(b) the
fuel is intended for a prescribed purpose or use.
(2) Where required under the
regulations, tax‑exempt fuel must be marked fuel.
Fuel tax exemption
certificate
9(1) A
consumer may apply to the Minister in accordance with the regulations for a
fuel tax exemption certificate identifying the consumer as a person who is
entitled to purchase fuel exempt from tax for a prescribed purpose or use.
(2) If the Minister refuses to issue a
fuel tax exemption certificate, the Minister shall give to the applicant a
notice of refusal specifying the reasons for refusal.
Duty of vendor
10(1) When
a vendor sells fuel to a consumer described in section 8, the vendor shall pass
on the benefit of the tax exemption and, if applicable, the amount prescribed
as the farm fuel distribution allowance, to the consumer.
(2) A vendor who contravenes subsection
(1) is liable to pay to the Crown an amount equal to the benefit the vendor was
required to pass on to the consumer.
Rate of tax
11(1) The
tax required to be paid pursuant to this Act shall be paid at the following
rates:
(a) with
respect to gasoline, diesel and other prescribed fuels, $0.09 per litre;
(b) with
respect to aviation fuel and locomotive fuel, $0.015 per litre;
(c) with
respect to liquefied petroleum gas, $0.065 per litre.
(2) In the case of tax payable due to
the rebranding of a fuel, the rate per litre is the difference between the
rate, if any, on the rebranded fuel and the rate, if any, paid on the fuel or
product before it was rebranded.
Remittance of tax
12(1) A
recipient who is required to pay a tax under this Act and who is described in
subsection (2) shall remit the tax to the Minister at the prescribed times and
in the prescribed manner.
(2) Subsection (1) applies to a
recipient who
(a) imports
fuel into Alberta for the purpose of resale,
(b) is
a recipient to whom section 4(2)(c) applies,
(c) sells
or removes fuel in Alberta from a terminal or refinery,
(d) blends
fuel in Alberta,
(e) rebrands
fuel in Alberta,
(f) uses
locomotive fuel in Alberta,
(g) is
a distributor of liquefied petroleum gas who carries out an activity referred
to in section 6(1), or
(h) performs
any other prescribed activity.
(3) Subject to the regulations, every
recipient other than one described in subsection (2) shall remit the tax to the
person who supplied the recipient with the fuel.
Special account
13 The Minister may require a direct
remitter to deposit the amount of tax to be remitted to the Minister into an
account in the name of the Minister or an account in trust for the Minister at
a financial institution specified by the Minister.
Tax recovery
14(1) Subject
to this section, if a recipient other than a consumer pays tax on fuel and
later sells the fuel, the recipient shall recover the tax paid from the person
who purchases the fuel.
(2) Subject to the regulations, the
Minister may on application by a recipient provide a refund, credit or allowance
for all or part of the tax paid by the recipient on fuel where the Minister is
satisfied that
(a) the
recipient paid the tax, and
(b) one
of the following circumstances has occurred:
(i) the fuel was sold exempt from tax pursuant to section 8;
(ii) the fuel was exported from Alberta in bulk and used outside
Alberta;
(iii) a verifiable quantity of the fuel was stolen or destroyed;
(iv) the fuel was rebranded
(A) to a fuel with a lower or no tax rate, or
(B) to a non‑taxable product;
(v) the fuel with respect to which the tax was paid was sold to
prescribed persons in the prescribed circumstances.
(3) Subject to subsection (4),
subsection (2)(b) does not apply to a recipient who is a consumer.
(4) Subsection (2)(b)(ii) applies to a
consumer in respect of aviation fuel exported from Alberta in bulk and used
outside Alberta.
(5) Where losses of fuel are
unverifiable, the Minister may
(a) on
application by a recipient, provide a refund of all or part of the tax paid by
the recipient on lost fuel, or
(b) provide
an allowance for lost fuel.
(6) If
the Minister refuses in whole or in part an application for a refund, credit or
allowance under subsection (1) or an application for a refund under subsection
(5)(a), the Minister shall give to the applicant a notice of disallowance
specifying the amount of the disallowance and the reasons for it.
Rebate of tax
15(1) Subject
to the regulations, the Minister may on application by a consumer who has paid
a tax under this Act pay a rebate to the consumer in respect of the tax paid on
fuel used for a prescribed purpose or use.
(2) If the Minister refuses in whole or
in part an application for a rebate under subsection (1), the Minister shall
give to the applicant a notice of disallowance specifying the amount of the
disallowance and the reasons for it.
Farm fuel distribution
allowance
16(1) Subject
to the regulations, the Minister may provide a farm fuel distribution allowance
in respect of marked fuel used for farming operations in Alberta.
(2) The farm fuel distribution allowance
under subsection (1) shall be in the prescribed amount per litre.
(3) If
a consumer who holds a fuel tax exemption certificate has purchased or used
fuel that is not marked fuel in prescribed circumstances, the Minister may, on
application by the consumer, provide to the consumer in addition to any rebate
under section 15 a grant in the prescribed amount per litre for the farm fuel
distribution allowance.
(4) If the Minister refuses in whole or
in part an application for a grant under subsection (3), the Minister shall
give to the applicant a notice of disallowance specifying the amount of the
disallowance and the reasons for it.
(5) Subject to the regulations, the
Minister may on application by a vendor reimburse the vendor for the amount of
the benefit of any farm fuel distribution allowance the vendor has passed on to
the consumer as required under section 10.
(6) If the Minister refuses in whole or
in part an application for reimbursement under subsection (5), the Minister
shall give to the applicant a notice of disallowance specifying the amount of
the disallowance and the reasons for it.
Colouring and
identifying fuel
17(1) Unless
the person is authorized to do so under the regulations, no person shall
introduce into any fuel a substance or thing for the purpose of, or having the
effect of, colouring or identifying the fuel.
(2) A person authorized to colour or
identify fuel as marked fuel shall colour or identify the fuel only in
accordance with the regulations.
(3) No person shall
(a) add
any substance or thing to marked fuel, or subject marked fuel to any process,
if doing so affects or changes the marked fuel so that it is no longer coloured
or identified as marked fuel in accordance with the regulations,
(b) sell
or pass off as marked fuel any fuel that is not marked fuel, or
(c) sell
or pass off as clear fuel any fuel that is not clear fuel.
Prohibited sale
18(1) No
vendor shall sell fuel exempt from tax to a consumer
(a) who,
at the time of purchase, does not provide a fuel tax exemption certificate or
other prescribed evidence of exemption, or
(b) if
the vendor knows or ought to know that the fuel tax exemption certificate or
other evidence is false in a material way or that the fuel will not be used for
a prescribed purpose or use.
(2) If a vendor sells fuel exempt from
tax to a consumer in contravention of subsection (1), the vendor and the
consumer are jointly and severally liable to pay to the Crown the amount of tax
the consumer would have been required to pay had the fuel not been sold exempt
from tax.
(3) No vendor shall sell marked fuel at
the reduced price to a consumer
(a) who,
at the time of purchase, does not provide a fuel tax exemption certificate or
other prescribed evidence of exemption, or
(b) if
the vendor knows or ought to know that the fuel tax exemption certificate or
other evidence is false in a material way or that the marked fuel will not be
used for farming operations in Alberta.
(4) If a vendor sells marked fuel to a
consumer in contravention of subsection (3), the vendor and the consumer are
jointly and severally liable to pay to the Crown
(a) the
amount of tax the consumer would have been required to pay had the marked fuel
not been sold at the reduced price, and
(b) the
amount of the farm fuel distribution allowance provided in respect of the
amount of marked fuel so sold.
(5) A consumer who buys marked fuel for
farming operations in Alberta at the reduced price shall not sell that marked
fuel to another consumer for a purpose or use other than farming operations in
Alberta.
(6) If a sale of marked fuel is made in
contravention of subsection (5), the person who sold the marked fuel and the
buyer or person to whom the marked fuel was delivered, as the case may be, are
jointly and severally liable to pay to the Crown the amount of the farm fuel
distribution allowance for each litre of marked fuel so sold.
Prohibited use
19(1) No
consumer who purchases fuel exempt from tax shall use the fuel for any purpose
or use other than a prescribed purpose or use.
(2) A consumer who purchases fuel exempt
from tax and who subsequently uses or permits that fuel to be used for a
purpose or use contrary to subsection (1) is liable to pay to the Crown the
amount of tax with respect to the amount of fuel the Minister determines has
been used for a purpose or use contrary to subsection (1) that the consumer
would have been required to pay had the fuel not been purchased exempt from
tax.
(3) No consumer who purchases marked
fuel at the reduced price shall use the marked fuel for any purpose or use
other than farming operations in Alberta.
(4) A consumer who purchases marked fuel
at the reduced price and who subsequently uses or permits that marked fuel to
be used for a purpose or use contrary to subsection (3) is liable to pay to the
Crown
(a) the
amount of tax with respect to the amount of marked fuel the Minister determines
has been used for a purpose or use contrary to subsection (3) that the consumer
would have been required to pay had the marked fuel not been purchased at the
reduced price, and
(b) the
amount of the farm fuel distribution allowance provided in respect of the
amount of marked fuel the Minister determines has been used for a purpose or
use contrary to subsection (3).
Possession of marked
fuel
20(1) No
person shall be in possession of marked fuel unless
(a) the
person
(i) has been issued a fuel tax exemption certificate, and
(ii) is in possession of the marked fuel for a prescribed purpose or
use or for farming operations in Alberta,
or
(b) the
person is otherwise authorized by the regulations to be in possession of marked
fuel.
(2) A person who is in possession of
marked fuel contrary to subsection (1) is liable to pay to the Crown
(a) the
amount of tax with respect to the amount of marked fuel in the possession of
the person that the person would have been required to pay had the fuel not
been purchased exempt from tax, and
(b) the
amount of any farm fuel distribution allowance provided in respect of the
amount of marked fuel in the possession of the person.
Accounting for marked
fuel
21(1) A
recipient specified in the regulations who purchases marked fuel shall account
to the Minister for the receipt, possession and disposition of that marked fuel
in accordance with the regulations.
(2) A recipient referred to in
subsection (1) who fails to account for the receipt, possession and disposition
of marked fuel is liable to pay to the Crown the amount of tax that the
recipient would have been required to pay had the marked fuel not been
purchased exempt from tax.
Division 2
Registration
Registration
22(1) Subject
to the regulations, no person shall
(a) in
Alberta
(i) produce or refine fuel,
(ii) operate a terminal or act as a position holder within a terminal
operated by another person,
(iii) sell fuel for the purpose of resale,
(iv) sell aviation fuel,
(v) sell fuel exempt from tax,
(vi) blend fuel,
(vii) mark fuel,
(viii) rebrand fuel, or
(ix) sell or remove fuel from a terminal or refinery,
(b) import
fuel into Alberta for the purpose of resale,
(c) export
fuel from Alberta in bulk,
(d) sell
fuel dye for use in Alberta,
(e) use
locomotive fuel in Alberta, or
(f) do
any other prescribed activity
unless the person is
registered under this section.
(2) An
application for registration must be made in accordance with the regulations.
(3) The
Minister may refuse to register or renew a registration if the applicant has
contravened this Act or a regulation under this Act or has contravened a law in
force in Alberta or in another jurisdiction that governs the collection or
payment of tax.
(4) The
Minister may cancel or suspend a registration if the registrant has contravened
this Act or a regulation under this Act or has contravened a law in force in
Alberta or in another jurisdiction that governs the collection or payment of
tax.
(5) The
Minister may refuse to register or renew a registration if the applicant is
dealing not at arm’s length with a person whose registration has been suspended
or cancelled or whose application to register or renew a registration has been
refused.
(6) If
the Minister refuses to register or renew or suspends or cancels a
registration, the Minister shall give to the applicant a notice of refusal,
suspension or cancellation specifying the reasons for the refusal, suspension
or cancellation.
Part 2
Assessments
Assessment of tax to be
remitted
23(1) Subject
to subsections (2) and (3), the Minister may, within 4 years from the end of
the calendar year in which tax was to have been remitted, assess a direct
remitter for the amount of tax owing that the direct remitter failed to remit.
(2) If a direct remitter has
(a) made
any misrepresentation that is attributable to neglect, carelessness or wilful
default, or
(b) committed
a fraud in making a return or in supplying any information under this Act or
the regulations or in omitting to disclose any information,
the Minister may
assess the amount of tax owing under this section at any time the Minister
considers reasonable.
(3) If a direct remitter has filed a
waiver in a form established by the Minister within 4 years from the end of the
year in which tax was to have been remitted and
(a) the
direct remitter has not revoked the waiver, the Minister may, in accordance
with the terms of the waiver, assess the amount of tax owing under this section
at any time, or
(b) the
direct remitter has revoked the waiver, the Minister may, in accordance with
the terms of the waiver, assess the amount of tax owing under this section
within 6 months after the Minister receives notice of the revocation.
(4) The Minister shall notify a direct
remitter of an assessment under this section by serving a notice of assessment
on the direct remitter.
(5) Evidence that an assessment has been
made under this section is proof, in the absence of evidence to the contrary,
that the amount of tax assessed is owing to the Crown from the direct remitter
on whom the notice of assessment under subsection (4) is served.
Assessment of amount
owing
24(1) In
this section, “amount owing” by a person means
(a) if
the person is a recipient other than a direct remitter, the amount of tax that
has not been paid by the recipient,
(b) the
amount by which a refund, credit or allowance provided to the person under
section 14 exceeds the refund, credit or allowance to which the person was
entitled,
(c) the
amount by which a rebate provided to the person under section 15 exceeds the
rebate to which the person was entitled,
(d) the
amount by which a farm fuel distribution allowance or grant provided to the
person under section 16 exceeds the farm fuel distribution allowance or grant
to which the person was entitled,
(e) the
amount by which a reimbursement provided to a vendor under section 16 exceeds
the amount of reimbursement to which the vendor was entitled, or
(f) the
amount a person is liable for under section 10, 18, 19, 20, 21 or 37.
(2) Subject to subsections (3) and (4),
the Minister may, within 4 years from the end of the calendar year in which the
amount owing was first owed by a person, assess the person for the amount
owing.
(3) If a person has
(a) made
any misrepresentation that is attributable to neglect, carelessness or wilful
default, or
(b) committed
a fraud in making a return or in supplying any information under this Act or
the regulations or in omitting to disclose any information,
the Minister may
assess the amount owing at any time the Minister considers reasonable.
(4) If a person has filed a waiver in a
form established by the Minister within 4 years from the end of the calendar
year in which the amount owing was first owed and
(a) the
person has not revoked the waiver, the Minister may, in accordance with the
terms of the waiver, assess the amount owing at any time, or
(b) the
person has revoked the waiver, the Minister may, in accordance with the terms
of the waiver, assess the amount owing within 6 months after the Minister
receives notice of the revocation.
(5) The Minister shall notify a person
of an assessment under this section by serving a notice of assessment on the
person.
(6) Evidence that an assessment has been
made under this section is proof, in the absence of evidence to the contrary,
that the amount assessed is owing to the Crown from the person on whom the
notice of assessment under subsection (5) is served.
Overpayment of tax
25(1) Where
the Minister has reason to believe that a person has paid more tax than was
required, the Minister may, within 4 years after the overpayment was made,
assess the person for the amount that was required to be paid.
(2) The
Minister shall notify a person of an assessment under this section by serving a
notice of assessment on the person.
Assessment of penalties
26(1) If
an assessment is made against a person under section 23 or 24 and all or a
portion of the amount assessed against that person is attributable to
(a) neglect,
carelessness or wilful default by or on behalf of that person, or
(b) fraud
or evasion committed by or on behalf of that person,
the Minister may, in
addition to the amount owing under the assessment under section 23 or 24,
assess a penalty against the person in the amount of 50% of the amount so
attributable.
(2) Evidence
that an assessment of a penalty has been made under subsection (1) is proof, in
the absence of evidence to the contrary, that the amount owing and the penalty
under this section are owing to the Crown from the person on whom the notice of
assessment under subsection (4) is served.
(3) If
a person fails to submit a return or report as and when required by this Act or
the regulations, the Minister may assess a penalty against the person in the
amount that is the greater of $25 for each day of default and 5% of any unpaid
tax, to a maximum penalty of $1000.
(4) The
Minister shall notify a person of an assessment under subsection (1) or (3) by
serving a notice of assessment on the person.
Effect of assessment
27(1) Unless
it is varied or vacated on an objection or appeal,
(a) an
assessment made under section 23, 24, 26, 29 or 30 is deemed to be valid and
binding notwithstanding any error, defect or omission in it or in any
proceeding under this Act relating to it, and
(b) the
amount assessed in an assessment made under section 23, 24, 26, 29 or 30 is,
for the purposes of collection and recovery, deemed to be an amount owing under
this Act and to be conclusively established as a debt due to the Crown.
(2) Every
person assessed under section 23, 24, 26, 29 or 30 shall, within 30 days after
the service of the notice of assessment, pay the amount assessed against the
person whether or not an objection to or appeal from the assessment is
outstanding.
(3) Liability
for an amount owing under this Act is not affected by the fact that no
assessment has been made or no notice of assessment has been served.
(4) The Minister is not bound by a return or
information delivered by or on behalf of any person under this Act or the
regulations and may, notwithstanding a return or information so delivered, or
if no return or information has been delivered, assess an amount payable under
this Act.
(5) Subject to subsection (6), if a
notice of assessment shows an amount in favour of the person assessed, the
Minister shall pay that amount to the person within 30 days of service of the
notice of assessment.
(6) Notwithstanding the Financial
Administration Act, if a notice of assessment indicates an amount owing or
a refund of less than the amount prescribed under subsection (8), the Minister
may
(a) in
the case of an amount owing, not collect it, or
(b) in
the case of a refund, not pay it unless specifically requested by the person to
whom the amount is payable.
(7) A request under subsection (6)(b)
must be made no later than the day on which all rights of objection and appeal
with respect to the assessment expire.
(8) The Minister may by regulation
prescribe the amount for the purpose of subsection (6).
Interest
28 Interest is payable on any amounts owing
or assessed under this Act in accordance with the regulations.
Certificate of payment
29(1) A
trustee in bankruptcy, assignee, liquidator, administrator, receiver, receiver‑manager
or any similar person (referred to in this section as the “responsible
representative”) who administers, winds up, controls or otherwise deals with
the property or business of a person who owes an amount under this Act
(referred to in this section as the “debtor”) shall, before distributing any
property over which the responsible representative has control, obtain a
certificate from the Minister certifying that all amounts
(a) for
which the debtor is liable under this Act up to the date of the certificate,
and
(b) for
the payment of which the responsible representative is or can reasonably be
expected to become liable in the capacity of responsible representative
have been paid or that
security for the payment of the amounts has been accepted by the Minister.
(2) If a responsible representative
distributes property in contravention of subsection (1), the responsible
representative is personally liable to a penalty in an amount equal to the
value of the property distributed, and the Minister may assess the responsible
representative for the amounts in the same manner and with the same effect as
if it were an assessment under this Part against the debtor for whose property
or business the responsible representative is responsible.
(3) The Minister shall notify a person
of an assessment under subsection (2) by serving a notice of assessment on the
person.
Liability in respect of
transfers by insolvent person
30(1) If
property is transferred at any time by a person who owes an amount under this
Act (referred to in this section as the “debtor”) to a person with whom the
debtor does not deal at arm’s length at that time and the debtor is insolvent
or becomes insolvent because of the transfer or because of the transfer and one
or more other transactions with that person, the person is jointly and
severally liable with the debtor to pay the liability under this Act of the
debtor equal to the amount, if any, by which the fair market value of the
property at that time exceeds the fair market value at the time of the
consideration given for the property, but nothing in this subsection limits the
liability of the debtor under any other provisions of this Act.
(2) If
(a) property
is transferred at any time from a person (in this subsection referred to as the
“transferor”) to another person (in this subsection referred to as the
“transferee”) with whom the transferor does not deal at arm’s length,
(b) the
transferor is liable because of subsection (1) or this subsection to pay an
amount of the liability of the debtor under this Act, and
(c) it
can reasonably be considered that one of the reasons for the transfer would be,
but for this subsection, to prevent the enforcement of this section,
the transferee is
jointly and severally liable with the transferor and the debtor to pay an
amount of the debtor’s liability under this Act equal to the lesser of the
amount of the liability that the transferor was liable to pay at that time and
the amount, if any, by which the fair market value of the property at that time
exceeds the fair market value at the time of the consideration given for the
property, but nothing in this subsection limits the liability of the debtor or
the transferor under any other provisions of this Act.
(3) The Minister may at any time assess
a person in respect of any amount payable because of this section.
(4) Where a person has become jointly
and severally liable under this section with a debtor in respect of part or all
of a liability under this Act of the debtor,
(a) a
payment by the person on account of that person’s liability discharges the
joint liability to the extent of the payment, but
(b) a
payment by the debtor on account of that debtor’s liability discharges the
person’s liability only to the extent that the payment operates to reduce the
debtor’s liability to an amount less than the amount in respect of which the
person is, by this section, made jointly and severally liable.
(5) The Minister shall notify a person
of an assessment under subsection (3) by serving a notice of assessment on the
person.
Amounts recoverable as
debts
31 Taxes, penalties, interest and other
amounts owing under this Act are debts recoverable by the Crown in an action in
debt.
Set‑off
32(1) If
a person to whom an amount is owing under this Act owes money to the Crown, the
Minister may, instead of making a payment to that person, apply the whole or
any part of the payment owing to the person to reduce or eliminate the debt the
person owes to the Crown.
(2) Where the Minister applies a payment
under subsection (1), the Minister shall notify the person referred to in
subsection (1) of the reduction or elimination of the debt.
Certificate of amount
not paid
33(1) Where
an amount owing under this Act has not been paid or has been paid only in part,
the Minister may issue a certificate stating the amount or the part of the
amount that has not been paid.
(2) A
certificate issued under subsection (1) may be filed in the Court as if it were
a judgment of the Court.
(3) When
a certificate issued under subsection (1) is filed in the Court,
(a) the
certificate has the same force and effect as if it were a judgment of the Court
in the amount stated in the certificate, together with interest to the day of
payment, and
(b) proceedings
may be taken to enforce payment of the amount owing as stated in the
certificate in the same manner as if the certificate were a judgment of the
Court.
(4) All reasonable costs and charges payable in
respect of the filing of a certificate in the Court are recoverable as if they
had been certified and the certificate had been filed under this section.
Payment by third party
34(1) If
the Minister has knowledge or suspects that a person is or will be, within one
year, liable to make any payment to a person who owes an amount under this Act
(referred to in this section as the “debtor”), the Minister may, by written
notice, require the person to pay the amount otherwise payable to the debtor in
whole or in part to the Minister on account of the amount owing by the debtor.
(2) Without limiting the generality of
subsection (1), if the Minister has knowledge or suspects that within 90 days
(a) a
bank, credit union, trust corporation, loan corporation or other similar person
(referred to in this section as the “institution”) will lend or advance money
to, or make a payment on behalf of, or make a payment in respect of a
negotiable instrument issued by, a debtor who is indebted to the institution
and who has granted security in respect of the indebtedness, or
(b) a
person other than an institution will lend or advance money to, or make a
payment on behalf of, a debtor who the Minister knows or suspects
(i) is employed by, or is engaged in providing services or property
to, that person or was or will be, within 90 days, so employed or engaged, or
(ii) if that person is a corporation, is not dealing at arm’s length
with that person,
the Minister may, by
written notice, require the institution or person to pay in whole or in part to
the Minister on account of the amount owing by the debtor under this Act the
money that would otherwise be so lent, advanced or paid, and any money so paid
to the Minister is deemed to have been lent, advanced or paid to the debtor.
(3) The receipt of the Minister for
money paid under this section is a good and sufficient discharge of the amount
owing by the debtor to the extent of that payment.
(4) The Minister shall apply any amount
received under this section to the account of the debtor and shall notify the
debtor of the amount received.
(5) A person who receives a notice under
subsection (1) or (2) is not entitled to set off any amount payable under this
section against an amount otherwise owing to that person.
(6) A person who, after receiving a
notice under subsection (1), discharges any liability to the debtor without
complying with a requirement under this section is liable to pay to the Crown
the lesser of
(a) an
amount equal to the liability discharged, and
(b) the
amount that the person was required under this section to pay to the Minister.
(7) An institution or other person who,
after receiving a notice under subsection (2), fails to comply with a
requirement under this section with respect to money to be lent, advanced or
paid is liable to pay to the Crown an amount equal to the lesser of
(a) the
total amount of money so lent, advanced or paid, and
(b) the
amount that the institution or person was required under subsection (2) to pay
to the Minister.
(8) If the person who is or is about to
become liable carries on business under a name or style other than the person’s
own name, the notice under subsection (1) or (2) may be addressed to the name
or style under which the person carries on business and, in the case of
personal service, is deemed to have been validly served if it has been left
with an adult person employed at the place of business of the addressee.
(9) If the person who is or is about to
become liable carries on business in a partnership, the notice under subsection
(1) or (2) may be addressed to the partnership name and, in the case of
personal service, is deemed to have been validly served if it has been served
on one of the partners or left with an adult person employed at the place of
business of the partnership.
Amounts in jeopardy
35(1) In
this section, “judge” means a judge of the Court.
(2) Where, 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 against a person
would be jeopardized by a delay in the collection of it, the judge shall, on
the terms the judge considers reasonable in the circumstances, authorize the
Minister to file a certificate under section 33 notwithstanding that the 30
days referred to in section 27(2) has not yet elapsed.
(3) Where a judge is satisfied that the
receipt of a notice of assessment by a person in respect of an amount assessed
against the person would likely jeopardize the collection of that amount, an
authorization under subsection (2) may be granted by the judge notwithstanding
that the notice of assessment in respect of that amount has not been served on
the person at or before the time the application is made.
(4) Statements contained in an affidavit
filed in support of an application under this section may be based on belief
with the grounds for it.
(5) An authorization granted under this
section in respect of a person must be served on the person by the Minister
within 72 hours after it is granted, except
(a) where
the judge orders the authorization to be served at some other time specified in
the authorization, and
(b) where
a notice of assessment must be served together with the authorization.
(6) For the purpose of subsection (5),
service on a person must be effected by
(a) personal
service on the person, or
(b) service
in accordance with directions, if any, of a judge.
(7) Where 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.
(8) Where a judge has granted an
authorization under this section in respect of a person, the person may, on 6
clear days’ notice to the Deputy Minister of Justice and Deputy Attorney
General, apply to a judge to review the authorization.
(9) An application under subsection (8)
must be made
(a) within
30 days from the day on which the authorization was served on the person in
accordance with this section, or
(b) within
any further time a judge may allow, on being satisfied that the application was
made as soon as practicable.
(10) An application under subsection (8)
may, on the application of the person, be heard in private if the person
establishes to the satisfaction of the judge that the circumstances of the case
justify private proceedings.
(11) On an application under subsection
(8), the judge shall determine the question summarily and may confirm, set
aside or vary the authorization and make any other order as the judge considers
appropriate.
(12) Where 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 with regard to it that, in the judge’s opinion, is
appropriate.
(13) No appeal lies from an order of a
judge made pursuant to subsection (11).
Liability of directors
for failure to remit
36(1) Where
a corporation has failed to remit tax payable by that corporation, the
directors of that corporation at the time the corporation was required to remit
the tax are jointly and severally liable, together with the corporation, to pay
that tax owing and any interest and penalties relating to it.
(2) A director is not liable under
subsection (1) unless
(a) a
certificate for the amount of the corporation’s liability referred to in
subsection (1) has been filed in the Court under section 33 and execution for
that amount has been returned unsatisfied in whole or in part,
(b) the
corporation has commenced liquidation or dissolution proceedings or has been
dissolved and a claim for the amount of the corporation’s liability referred to
in subsection (1) has been proved within 6 months after the earlier of the date
of commencement of the proceedings and the date of dissolution,
(c) the
corporation has made an assignment or a receiving order has been made against
it under the Bankruptcy and Insolvency Act (Canada) and a claim for the
amount of the corporation’s liability referred to in subsection (1) has been
proved within 6 months after the date of the assignment or receiving order, or
(d) a
compromise or arrangement has been proposed under the Companies’ Creditors
Arrangement Act (Canada) in respect of the corporation.
(3) Notwithstanding subsection (2), a
director is not liable under subsection (1) if the director exercised due
diligence in attempting to ensure the corporation remitted the tax.
(4) The Minister shall not take action
to collect an amount owed by a director under this section until
(a) all
reasonable efforts to collect the amount from the corporation have been made by
the Minister, and
(b) the
director has been notified in writing of the director’s liability under this
section.
(5) A notice under subsection (4)(b) may
not be sent more than 2 years after the director last ceased to be a director
of the corporation.
(6) Where a director pays an amount in
respect of a corporation’s liability referred to in subsection (1) that is
proved in liquidation, dissolution or bankruptcy proceedings, the director is
entitled to any preference that the Crown would have been entitled to had that
amount not been so paid and, where a certificate that relates to that amount
has been filed, the director is entitled to an assignment of the certificate to
the extent of the director’s payment, which assignment the Minister is hereby
empowered to make.
(7) A director who has satisfied a claim
under this section is entitled to a contribution from the other directors who
were liable for the claim.
Delegation of duty
37 If a person has, in accordance with the
regulations, delegated the responsibility to remit tax owing under this Act or
to do anything else that the person is required to do under this Act or the
regulations to another person and that other person fails to remit the tax or fails
to do anything required to be done under this Act or the regulations that is
delegated to that person, both persons are jointly and severally liable for any
taxes, penalties, interest or other amounts related to, arising from or
connected with the failure to remit the tax or the failure to do anything
required to be done under this Act or the regulations that is so delegated.
Notice of objection
38(1) A
person who objects to
(a) a
notice of assessment under section 23, 24, 25, 26, 29 or 30,
(b) a
notice of refusal under section 9(2),
(c) a
notice of disallowance under section 14(6),
(d) a
notice of disallowance under section 15(2),
(e) a
notice of disallowance under section 16(4) or (6),
(f) a
notice of cancellation of a fuel tax exemption certificate pursuant to the
regulations, or
(g) a
notice of refusal, cancellation or suspension of a registration under section
22(6)
may, within 90 days
after the day the Minister gives the notice, serve on the Minister a notice of
objection in a form established by the Minister setting out the reasons for the
objection and the relevant facts.
(2) A
notice of objection under this section must be served by being sent by
registered mail addressed to the Minister.
(3) The
Minister may accept a notice of objection under this section notwithstanding
that it was not served in the manner required by subsection (2).
(4) On
receipt of a notice of objection, the Minister shall with all due dispatch
reconsider the action and shall
(a) vacate,
confirm or vary the assessment or disallowance and notify the objector of the
Minister’s decision,
(b) serve
a new notice of assessment or give a new notice of disallowance,
(c) issue
a fuel tax exemption certificate under section 9 or give a new notice
confirming the Minister’s refusal to issue a fuel tax exemption certificate,
(d) revoke
the cancellation of the fuel tax exemption certificate or issue a new fuel tax
exemption certificate or give a new notice confirming the cancellation of the
fuel tax exemption certificate, or
(e) confirm
the refusal, cancellation or suspension of registration, register the applicant
or renew the registration or revoke the suspension or cancellation of the
registration.
(5) Notwithstanding subsection (4), on
receipt of a notice of objection, the Minister may, if the person indicates in
the notice of objection that the person wishes to appeal immediately to the
Court and waives reconsideration of the action by the Minister, file a copy of
the notice of objection with the clerk of the Court and notify the person of
the filing.
(6) If the Minister files a copy of the
notice of objection pursuant to subsection (5),
(a) the
Minister is deemed for the purpose of section 41 not to have acted under
section 38(4), and
(b) the
person is deemed to have instituted an appeal in accordance with section 41.
Extension of time by
Minister
39(1) Where
no notice of objection has been served under section 38 within the time limited
by that section for doing so, the person may apply to the Minister for an
extension of the time for serving a notice of objection.
(2) An application made under subsection
(1) must set out the reasons why the notice of objection was not served within
the time otherwise limited by section 38 for doing so.
(3) An application made under subsection
(1) must be served by being sent by registered mail addressed to the Minister
and must be accompanied with a copy of the notice of objection.
(4) The Minister may accept an
application made under subsection (1) notwithstanding that it was not served in
the manner required by subsection (3).
(5) On receipt of an application made
under subsection (1), the Minister shall with all due dispatch consider the
application and grant or refuse it and notify the person of the decision in
writing.
(6) Where an application made under
subsection (1) is granted, the notice of objection is deemed to have been
served on the day the person is notified of the Minister’s decision.
(7) No application may be granted under
this section unless
(a) the
application is made within one year after the expiration of the time otherwise
limited by section 38 for serving a notice of objection, and
(b) the
person demonstrates that
(i) within the time otherwise limited by section 38 for serving the
notice, the person
(A) was unable to act or to instruct another to act in the person’s
name, or
(B) intended in good faith 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.
Extension of time by
Court
40(1) A
person who has made an application under section 39 may apply to the Court to
have the application granted after
(a) the
Minister has refused the application, or
(b) 90
days has elapsed after service of the application under section 39 and the
Minister has not notified the person of the Minister’s decision,
but no application
under this section may be made after the expiration of 90 days after the day on
which notice of the Minister’s decision was mailed to the person or otherwise
communicated in writing to the person.
(2) An application under subsection (1)
must be made by serving on the Minister by registered mail a copy of the documents
referred to in section 39(3) and the notice referred to in section 39(5), if
any, and by filing a copy of each with the clerk of the Court.
(3) The Court may grant or dismiss an
application made under subsection (1) and, in granting an application, may
impose any terms it considers just or may order that the notice of objection is
deemed to have been served on the date of its order.
(4) No application may be granted under
this section unless
(a) the
application was made under section 39 within one year after the expiration of
the time otherwise limited by section 38 for serving a notice of objection, and
(b) the
person demonstrates that
(i) within the time otherwise limited by section 38 for serving the
notice, the person
(A) was unable to act or to instruct another to act in the person’s
name, or
(B) intended in good faith 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 under section 39 as soon as
circumstances permitted.
Notice of appeal
41(1) A
person who has served a notice of objection under section 38(1) may appeal to
the Court to have the assessment or disallowance vacated or varied, a fuel tax
exemption certificate issued under section 9 or the refusal, cancellation or
suspension of registration revoked after
(a) the
Minister has confirmed the assessment or disallowance or served a new notice of
assessment or given a new notice of disallowance under section 38(4),
(b) the
Minister has given a new notice confirming the Minister’s refusal to issue a
fuel tax exemption certificate under section 9,
(c) the
Minister has given a new notice confirming the Minister’s cancellation of a fuel
tax exemption certificate,
(d) the
Minister has confirmed the Minister’s refusal, cancellation or suspension of
registration, or
(e) 90
days has elapsed after service of the notice of objection and the Minister has
not acted under section 38(4),
but no appeal under
this section may be instituted after the expiration of 90 days from the day a
notification or notice under section 38(4) was served or otherwise given to the
objector.
(2) An
appeal to the Court must be instituted by serving on the Minister a notice of
appeal and by filing a copy of the notice of appeal with the clerk of the
Court.
(3) A
notice of appeal must be served on the Minister by being sent by registered
mail addressed to the Minister.
(4) The notice of appeal must be attached to the
notice of objection and, for the purpose of section 44, is deemed to be a
statement of claim.
Reply to notice of
appeal
42(1) The Minister shall, within 60 days from the day
a notice of appeal is received or within any further time that the Court may allow
either before or after the expiration of that time, serve on the appellant and
file in the Court a reply to the notice of appeal admitting or denying the
facts alleged and containing a statement of any further allegations of fact and
of any applicable statutory provisions and any reasons on which the Minister
intends to rely.
(2) The
Court may strike out a notice of appeal or any part of a notice for failure to
comply with section 41 and may permit an amendment to be made to a notice of
appeal or a new notice of appeal to be substituted for the one struck out.
(3) The
Court may
(a) strike
out any part of a reply for failure to comply with this section or permit the
amendment of a reply, or
(b) strike
out a reply for failure to comply with this section and order a new reply to be
filed within a time that it considers appropriate.
(4) If
a notice of appeal is struck out for failure to comply with section 41 and a
new notice of appeal is not filed as and when permitted by the Court, the Court
may dismiss the appeal.
(5) If a reply is not filed as required by this
section or is struck out under this section and a new reply is not filed as
ordered by the Court within the time ordered, the Court may dispose of the
appeal ex parte or after a hearing on the basis that the allegations of fact
contained in the notice of appeal are true.
Powers of Court
43(1) On the filing of the material referred to in
sections 41 and 42(1), (2) and (3), the matter in respect of which the material
is filed is deemed to be an action in the Court.
(2) A
fact or statutory provision not set out in the notice of appeal or reply may be
pleaded or referred to in any manner and on any terms that the Court may
direct.
(3) The
Court may
(a) dismiss
the appeal, or
(b) allow
the appeal and
(i) vacate the assessment or disallowance,
(ii) vary the assessment or disallowance,
(iii) restore the assessment or disallowance,
(iv) refer the assessment or disallowance back to the Minister for
reconsideration,
(v) order the Minister to issue a fuel tax exemption certificate
under section 9,
(vi) order the Minister to revoke the cancellation of a fuel tax
exemption certificate or issue a new certificate, or
(vii) order the Minister to register the applicant under section 22 or
renew the registration or revoke the cancellation or suspension of the
registration.
(4) The Court may, in delivering judgment on an
appeal, order payment or repayment of tax, a refund, credit or allowance under
section 14, a rebate under section 15, an allowance, grant or reimbursement
under section 16 and interest, penalties or costs of the appellant or the
Minister.
Practice and procedure
44 Except as provided in the regulations,
the practice and procedure of the Court, including the right of appeal and the
practice and procedure relating to appeals to the Court of Appeal or the
Supreme Court of Canada, apply to every matter deemed to be an action under
section 43, and every judgment and order given or made in each such action may
be enforced in the same manner and by the same process as a judgment or order
given or made in an action commenced in the Court.
Irregularities
45 An assessment or disallowance shall not
be vacated or varied on appeal by reason only of an irregularity, informality,
omission or error on the part of a person in the observance of a directory
provision of this Act.
Documents deemed signed
46 A document purporting to have been
executed under or in the course of the administration or enforcement of this
Act over the name in writing of the Minister or an official authorized by the
Minister to exercise powers or perform duties of the Minister under this Act is
deemed to have been signed, made and issued by the Minister or the official
unless called into question by the Minister or by a person acting for the
Minister or for the Crown.
Part 3
Investigations, Enforcement and Offences
Division 1
Investigations and Enforcement
Definition
47 In this Part, “property” includes
computer hardware.
Authority to enter on
land
48 For the purpose of carrying out duties
under this Act and the regulations, the Minister or an officer may enter on any
land, whether or not that land is enclosed.
General powers
respecting inspections
49(1) For
the purpose of carrying out duties under this Act and the regulations, the
Minister or an officer may do all or any of the following:
(a) subject
to subsection (4), enter, without a warrant, at any reasonable time, the
following premises for the purpose of conducting an inspection, audit or
examination:
(i) any premises used by the person in connection with the
refinement, production, importation, exportation, storage, transportation,
distribution, purchase, sale, blending, rebranding or marking of fuel;
(ii) any premises containing any records or property that relates to
the refinement, production, importation, exportation, storage, transportation,
distribution, purchase, sale, blending, rebranding or marking of fuel or any
other records or property that is required to be kept under this Act or the
regulations;
(b) make
any inquiries of a person that are or may be relevant to an inspection, audit
or examination under this section;
(c) require
any person keeping any records or property related to the refinement,
production, importation, exportation, storage, transportation, distribution,
purchase, sale, blending, rebranding or marking of fuel or any other records or
property that is required to be kept under this Act or the regulations to
provide those records or that property to the Minister or an officer;
(d) examine
any fuel on the premises, including any fuel contained in the fuel tank of any
motor vehicle found on the premises or in any other receptacle, and take
samples of that fuel;
(e) use
any computer hardware or software to obtain readings or other information from
the engine of a motor vehicle found on the premises.
(2) If any records or property is
provided to the Minister or an officer pursuant to subsection (1)(c), the
Minister or officer may
(a) examine
the records or property, and
(b) remove
the records for the purpose of making copies in accordance with section 54.
(3) For the purpose of producing a
readable record from a computer system used by a person to whom a request is
made pursuant to subsection (1), the Minister or an officer may use any computer
hardware or software in the possession of that person.
(4) The Minister or an officer shall not
enter any premises that are a dwelling house except with the consent of the
occupant or under the authority of a warrant obtained pursuant to section 50.
Warrant
50(1) Where
a justice of the peace or provincial judge is satisfied by information on oath
of the Minister or an officer that there are reasonable grounds to believe that
an offence against this Act or the regulations has occurred and that evidence
of that offence is likely to be found, the justice of the peace or the
provincial judge may issue a warrant to authorize the Minister or officer to do
all or any of the following:
(a) enter
and search any place or premises named in the warrant;
(b) stop
and search any motor vehicle described in the warrant;
(c) seize
and remove anything that may be evidence of an offence against this Act or the
regulations.
(2) Under the authority of a warrant
issued pursuant to subsection (1), the Minister or officer may do all or any of
the following:
(a) at
any time, enter and search any place or premises named in the warrant;
(b) stop
and search any motor vehicle described in the warrant;
(c) open
and examine any trunk, box, bag, parcel, closet, cupboard or other receptacle
that the Minister or officer finds in the place, premises or motor vehicle;
(d) require
the production of and examine any records or property that the Minister or
officer believes, on reasonable grounds, may contain information related to an
offence against this Act or the regulations;
(e) remove,
for the purpose of making copies in accordance with section 54, any records
examined pursuant to this section;
(f) seize
and remove from any place, premises or motor vehicle searched anything that may
be evidence of an offence against this Act or the regulations.
(3) Subject to subsection (4), the
Minister or officer may exercise all or any of the powers mentioned in
subsection (2) without a warrant if
(a) the
conditions for obtaining a warrant exist, and
(b) the
Minister or officer has reasonable grounds to believe that the delay necessary
to obtain a warrant would result
(i) in danger to human life or safety, or
(ii) in the loss, removal or destruction of evidence.
(4) The Minister or an officer shall not
enter any premises that are a dwelling house without a warrant obtained
pursuant to this section unless the occupant of those premises consents to the
entry.
Authority to stop and
inspect motor vehicles
51(1) For
the purpose of carrying out duties under this Act and the regulations, an
officer may, without a warrant, signal or request the operator of a motor
vehicle to stop the vehicle to enable the officer to examine its fuel and take
a sample of it when the officer has reasonable cause to suspect that the
operator or owner of the motor vehicle is not authorized to be in possession of
marked fuel or is using marked fuel other than for a prescribed purpose or use
or farming operations in Alberta.
(2) The operator of a motor vehicle shall,
when signalled or requested by an officer who is readily identifiable as an
officer,
(a) immediately
bring the motor vehicle to a safe stop,
(b) immediately
provide access to the fuel tank of the motor vehicle or other receptacle on or
attached to the motor vehicle where the officer reasonably believes that marked
fuel may be located, and
(c) permit
the officer to examine the fuel in the fuel tank of the motor vehicle or in
another receptacle on or attached to the motor vehicle and take samples of that
fuel.
Searches of motor
vehicles transporting fuel in bulk
52(1) When
requested to do so by an officer, every person transporting fuel in bulk and
every operator of a motor vehicle transporting fuel in bulk, other than in the
fuel tank of a motor vehicle, shall provide the officer with written proof of
(a) the
quantity and type of fuel being transported,
(b) the
name and address of the person or persons from whom the fuel was obtained,
(c) the
name and address of every person to whom the fuel was delivered or is to be
delivered, and
(d) the
use or intended use, if known, of the fuel delivered or to be delivered.
(2) An officer may detain a motor
vehicle transporting fuel in bulk, other than fuel in the fuel tank of a motor
vehicle, if
(a) the
written proof requested under subsection (1) is not provided, or
(b) the
officer wishes to verify any written proof provided under subsection (1).
(3) An officer may detain a motor
vehicle under subsection (2) until the written proof requested under subsection
(1) has been provided and verified to the satisfaction of the officer.
Demand for records and
property
53(1) For
the purpose of carrying out duties under this Act, the Minister or an officer
may serve a written demand on any person requiring that person to produce any
records or property in that person’s control that relates to the refinement,
production, importation, exportation, storage, transportation, distribution,
purchase, sale, blending, rebranding or marking of fuel or any other records or
property that is required to be kept under this Act or the regulations within a
reasonable period of time stipulated in the demand.
(2) A person on whom a written demand is
served pursuant to this section shall produce the records or property mentioned
in the written demand within the time specified in the demand.
(3) The Minister or an officer may
inspect and examine any records or property produced pursuant to a written
demand served pursuant to subsection (1) and remove the records for the purpose
of making copies in accordance with section 54.
(4) If
a person is served with a written demand under this section and the person does
not comply with the demand, the Minister or an officer may apply to the Court
for an order directing the person to comply with the demand.
(5) An
application under this section shall be by way of an originating notice.
(6) On
the filing of an originating notice with the clerk of the Court, the Court may,
if it considers it necessary in the circumstances, hear an interim application
on 2 days’ notice and make an interim order granting any relief that the Court
considers appropriate pending the determination of the application.
(7) An
interim order under subsection (6) may be made ex parte if the Court considers
it appropriate in the circumstances.
(8) On
hearing an application, the Court may do one or more of the following:
(a) direct
the person to produce the records or property where the Court is satisfied that
(i) the records or property demanded is in the possession of or under
the control of the person, and
(ii) the records or property demanded is relevant to the
administration or enforcement of this Act or the regulations;
(b) make
its order subject to any terms or conditions that the Court considers
appropriate in the circumstances;
(c) award costs in respect of the matter.
Copies of records
54(1) Where
any records are removed pursuant to section 49, 50 or 53, the Minister or
officer may make copies of those records.
(2) The Minister or officer shall
(a) make
those copies with reasonable dispatch, and
(b) promptly
return the originals of the records to
(i) the place they were removed from, or
(ii) any other place that may be agreed to by the Minister or officer
and the person who produced them or from whom they were seized.
(3) A record certified by the Minister
or an officer to be a copy made pursuant to this section
(a) is
admissible in evidence without proof of the office or signature of the person
purporting to have issued the certificate, and
(b) has
the same probative force as the original record.
Hindering Minister or
officer
55(1) No
person shall hinder, molest or interfere with the Minister doing anything that
the Minister is authorized to do by or pursuant to section 48, 49, 50 or 53 or
attempt to prevent the Minister doing that thing and, notwithstanding any other
law to the contrary, a person shall, unless the person is unable to do so, do
everything the person is required to do pursuant to section 48, 49, 50 or 53.
(2) No person shall hinder, molest or
interfere with any officer doing anything that the officer is authorized to do
by or pursuant to section 48, 49, 50, 51, 52 or 53 or prevent or attempt to
prevent any officer doing that thing and, notwithstanding any other law to the
contrary, a person shall, unless the person is unable to do so, do everything
the person is required to do by or pursuant to section 48, 49, 50, 51, 52 or
53.
Division 2
Offences
Offences and penalties
re recipients
56 A recipient other than a consumer who
contravenes section 4, 5, 6, 12, 21 or 22 is guilty of an offence and liable
(a) for
a first offence, to a fine of not more than $10 000 or to a term of
imprisonment of not more than 6 months or to both a fine and imprisonment, and
(b) for
a subsequent offence, to a fine of not more than $25 000 or to a term of
imprisonment of not more than one year or to both a fine and imprisonment.
Offences and penalties
re vendors
57 A vendor who contravenes section 10 or
18(1) or (3) is guilty of an offence and liable
(a) for
a first offence, to a fine of not more than $10 000 or to a term of
imprisonment of not more than 6 months or to both a fine and imprisonment, and
(b) for
a subsequent offence, to a fine of not more than $25 000 or to a term of
imprisonment of not more than one year or to both a fine and imprisonment.
Offences and penalties
re consumers
58 A consumer who contravenes section 4, 5,
6, 12, 17, 18(5), 19 or 20 is guilty of an offence and liable
(a) for
a first offence, to a fine of not more than $1000, and
(b) for
a subsequent offence, to a fine of not more than $5000 or to a term of
imprisonment of not more than 6 months or to both a fine and imprisonment.
Offences re documents
and records
59 A person who
(a) makes,
participates in, assents to or acquiesces in the making of false or deceptive
statements in an application, return, statement, record, report or document
delivered or made under this Act or the regulations,
(b) destroys,
alters, mutilates or disposes of the records of a person required to keep
records under this Act or the regulations,
(c) makes
or assents to or acquiesces in the making of false or deceptive entries or
omits or assents to or acquiesces in the omitting of material particulars in
the records of a person required to keep records under this Act or the
regulations,
(d) wilfully
evades or attempts to evade compliance with this Act or the regulations, or
(e) conspires
with any person to commit an offence described in clauses (a) to (d)
is guilty of an offence and, in addition to any penalty
otherwise provided for by this Act, is liable to a fine of not more than 300%
of the tax evaded or sought to be evaded, the difference between the amount
that should have been remitted and the amount remitted, or the refund, credit,
allowance, reimbursement or rebate obtained or sought to be obtained, or to
that fine and a term of imprisonment of not more than 2 years.
Failure to file returns
or maintain records
60(1) A person who fails to submit a return or report
or to provide or produce information or a document as and when required by this
Act or the regulations is guilty of an offence and liable to a fine of $50 for
each day of default.
(2) A person who fails to maintain records and
books of account when required by the Minister to do so under section 69(a) is
guilty of an offence and liable to a fine of $50 for each day from the day the
person receives notification of the requirement to the day the person complies
with the requirement.
General offences and
penalties
61(1) A
person other than a consumer who contravenes section 17 or 20 is guilty of an
offence and liable
(a) for
a first offence, to a fine of not more than $10 000 or to a term of
imprisonment of not more than 6 months or to both a fine and imprisonment, and
(b) for
a subsequent offence, to a fine of not more than $25 000 or to a term of
imprisonment of not more than one year or to both a fine and imprisonment.
(2) A person who contravenes a provision
of this Act or the regulations for which a penalty is not otherwise provided is
guilty of an offence and liable
(a) for
a first offence, to a fine of not more than $1000 or to a term of imprisonment
of not more than one month or to both a fine and imprisonment, and
(b) for a subsequent offence, to a fine of not
more than $5000 or to a term of imprisonment of not more than 6 months or to
both a fine and imprisonment.
Part 4
Administrative Provisions
and Regulations
Records
62(1) Every
person who is required to be registered under section 22 shall keep records in
accordance with the regulations.
(2) Subject to subsections (3) and (4),
a record must be retained for 6 years from the end of the calendar year in
which the record was created.
(3) A person referred to in subsection
(1) may apply to the Minister for permission to destroy a record before the 6‑year
period has elapsed.
(4) The Minister may before the end of
the 6‑year period require a person referred to in subsection (1) to
retain a record for a further period as specified by the Minister.
Communication of
information
63(1) Information
collected under this Act may be disclosed to the Government of Canada or the
government of a province or territory if the information is used solely for the
purpose of administering or enforcing a taxation statute of Canada or of that province
or territory and the Government of Canada or government of that province or
territory supplies the Government of Alberta with similar information under an
information‑sharing agreement.
(2) A person who receives information
under subsection (1) holds that information subject to the same prohibitions
and restrictions respecting communication of the information that applied to
the person from whom the information was received.
(3) Notwithstanding subsection (2), a
person may communicate information to any person engaged or employed in the
investigation or prosecution of offences under the Criminal Code
(Canada) solely for the purpose of investigating and prosecuting an offence.
(4) The
Minister may, in accordance with the regulations, disclose information,
including personal information, about a registrant or other person where the
information is required by the person to whom it is disclosed
(a) for
the purpose of complying with this Act or the regulations, or
(b) to
determine if the registrant or other person is complying with this Act or the
regulations.
(5) The Minister may, in accordance with
the regulations, publish the following information, including personal
information, about a registrant:
(a) the
name of the registrant;
(b) the
address of the registrant;
(c) the
type of registration;
(d) any
other prescribed information.
Security for amounts
owing
64(1) The Minister may, if the Minister considers it
advisable in a particular case, accept security for payment of debts due to the
Crown under this Act by way of mortgage or other charge on, or a security
interest of any kind under the Personal
Property Security Act on, property of the person liable for the debt or any
other person or by way of guarantee from other persons.
(2) If a person who has furnished security under
subsection (1) requests in writing that the Minister surrender the security,
the Minister may surrender the security to the extent that the value of the
security exceeds the aggregate of amounts payable under this Act by that person
at that time.
Service
65 Where a notice or other document is to be
served on or is to be sent or given to a person by the Minister or an officer
under this Act, the notice or document may be served on or sent or given to the
person by personal service, fax, registered or regular mail or any other method
specified in the regulations.
Limitation on
prosecution
66 A prosecution for an offence under this
Act or the regulations may be commenced within 4 years from the date of the
contravention, but not afterwards.
Limitations Act
67 The Limitations
Act does not apply to the Crown with respect to any matter arising under
this Act.
Certificates as evidence
68 In a prosecution for an offence under
this Act or the regulations,
(a) a
certificate of the Minister or a person lawfully acting on the Minister’s
behalf stating that the defendant is or is not registered under this Act, or
was or was not so registered at a time or during a period of time specified in
it,
(b) a
certificate of the chief chemist or the deputy chief chemist of the gasoline
and oil laboratory of the Alberta Science and Research Authority or any other
person designated or appointed by the Minister stating the results of the
examination of any substance referred to in the certificate and stating one or
more of the following:
(i) that the substance is or is not a fuel or a blend stock,
(ii) if the substance is a fuel, the type of fuel,
(iii) if the substance is a fuel, that the fuel is or is not marked
fuel,
(iv) that the substance does or does not contain a colouring matter or
identifying substance authorized to be used under the regulations,
or
(c) a
certificate of the Minister stating that a person named in the certificate is
an officer for the purposes of this Act,
shall be admitted in
evidence as proof, in the absence of evidence to the contrary, of the matters
stated in it without any proof that the certificate was signed by the person
purporting to sign it or of the appointment of the person signing it.
Powers of Minister
69 The Minister may
(a) require
any person, in a particular case,
(i) to keep any record in the manner and place required by the
Minister,
(ii) to make any return or report,
(iii) to comply with a specified method of accounting, or
(iv) to make or reconcile an inventory of fuel as of a specified time,
for a purpose related to the
administration of this Act or the regulations;
(b) establish
or approve the form of any agreement or other document or form used in the
administration of this Act;
(c) extend
the time for making a report or return under this Act;
(d) designate
a fuel distribution facility as a terminal;
(e) enter
into agreements with the government of any jurisdiction inside or outside
Canada, or with any other person, with respect to the administration and
enforcement of this Act or any fuel tax legislation in any other jurisdiction,
including, without limitation, agreements with respect to the collection of
taxes under this Act or similar taxes imposed by other jurisdictions and the
determination of fuel used in a jurisdiction;
(f) enter into the International Fuel Tax
Agreement.
Waiver or cancellation
of penalties or interest
70 Notwithstanding the Financial
Administration Act, the Minister may, on application by a person against
whom a penalty or interest is assessed within 4 calendar years from the end of
the calendar year in which the penalty or interest is assessed,
(a) waive
or cancel all or any portion of any penalty or interest payable under this Act
by the person, or
(b) refund
all or any portion of any penalty or interest paid under this Act by the
person.
Regulations
71(1) The
Lieutenant Governor in Council may make regulations
(a) defining
words or expressions to be defined by the regulations, and any other word or
expression used in this Act but not defined in this Act;
(b) excluding
any substance from the definition of fuel in section 1(n);
(c) prescribing
substances for the purpose of section 1(q);
(d) prescribing
circumstances under which no tax is payable under section 4(3) or 6(3);
(e) respecting
the manner in which or the basis on which the use of locomotive fuel in Alberta
is calculated;
(f) respecting
the remittance of tax under this Act;
(g) exempting
any person or class of persons from the payment of tax imposed by this Act
subject to any terms set out in the regulations;
(h) prescribing
the types of evidence of exemption for the purpose of sections 8 and 18;
(i) prescribing
purposes or uses for which tax‑exempt fuel may be used;
(j) respecting
the possession of marked fuel;
(k) respecting
fuel tax exemption certificates, including, without limitation, regulations
respecting
(i) applications for a fuel tax exemption certificate,
(ii) the types of fuel tax exemption certificates that may be issued,
and
(iii) the cancellation of a fuel tax exemption certificate;
(l) respecting
the circumstances in which tax‑exempt fuel must be marked fuel;
(m) prescribing
activities for the purpose of section 12(2)(h);
(n) respecting
refunds, credits and allowances under section 14 including, without limitation,
regulations respecting applications for refunds, credits or allowances;
(o) respecting
rebates under section 15, including, without limitation, regulations respecting
applications for rebates;
(p) respecting
the farm fuel distribution allowance;
(q) respecting
grants under section 16(3), including, without limitation, regulations
respecting applications for grants;
(r) respecting
reimbursements under section 16(5), including, without limitation, regulations
respecting applications for reimbursement;
(s) respecting
the colouring and identifying of fuel as marked fuel;
(t) respecting
the accounting for the receipt, possession and disposition of marked fuel under
section 21;
(u) respecting
registrations under section 22, including, without limitation, regulations
respecting applications for registrations;
(v) requiring
security bonds, bank guarantees or other financial arrangements to be furnished
or made by any person who remits tax pursuant to this Act and prescribing the
form and amount of the bonds, guarantees or other financial arrangements;
(w) respecting
the form and contents of waivers under sections 23 and 24;
(x) prescribing
the rate of interest and the manner of calculation of interest payable for the
purpose of section 28;
(y) respecting
the delegation of duties for the purpose of section 37;
(z) respecting
records and property to be kept under this Act, including, without limitation,
regulations respecting the manner and place where records and property are to
be kept;
(aa) respecting
certificates to be issued under this Act;
(bb) respecting
the disclosure and publishing of information for the purposes of section 63;
(cc) respecting
returns and reports to be made and submitted to the Minister, including the
persons required to make them;
(dd) respecting
the practice and procedures of the Court in respect of proceedings under this
Act;
(ee) respecting
the service of notices and documents under this Act;
(ff) prescribing
any other matter or thing required or authorized by this Act to be prescribed
by regulation;
(gg) respecting
any other matter or thing the Lieutenant Governor in Council considers
necessary or expedient to carry out the intent of this Act.
(2) The Minister may make regulations
(a) respecting
forms for the purposes of this Act;
(b) prescribing
fees for any applications, services or other matters under this Act.
(3) A regulation made under this Act is,
if it so provides, effective with reference to a period before it was made.
Part 5
Transitional Provisions, Consequential Amendments, Repeal and Coming into Force
Transitional provisions
72(1) In
this section and section 73, “former Act” means the Fuel Tax Act, RSA
2000 cF‑28.
(2) Any registration issued or renewed
under section 4 of the former Act as that Act existed on the day before the
coming into force of this Act is deemed to be issued under this Act and may be
dealt with by the Minister as if it were issued under this Act.
(3) Any proceedings with respect to an
assessment made under the former Act that are not fully disposed of before the
coming into force of this section shall be dealt with and disposed of under the
former Act.
Transitional regulations
73 The Lieutenant Governor in Council may
make regulations
(a) respecting
the transition of any matter from the former Act to this Act;
(b) to
deal with any difficulty or impossibility resulting from the transition from
the former Act to this Act.
74 (This section amends the
Highways Development and Protection Act.
The amendment has been incorporated into that Act.)
Repeal
75(1) The
Fuel Tax Act, RSA 2000 cF‑28, is repealed.
(2) Section 3(a) of the Fuel Tax
Amendment Act, 2004 is repealed.
Coming into force
76 This Act comes into force on Proclamation.
(NOTE: Proclaimed in force April 1, 2007.)