General Provisions Concerning Charges and Other Amounts Payable (continued)
Marginal note: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
(a) the amount has previously been refunded, remitted, applied or paid to that person under this or any other Act of Parliament;
(b) the person has applied for a refund, payment or remission of the amount under any other Act of Parliament; or
(c) the amount has been or will be refunded to the person under section 32.
Marginal note:Single application
(2) Only one application may be made under this Act for a refund with respect to any matter.
Marginal note: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 reporting periods 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 reporting periods have been paid.
- 2002, c. 9, s. 5 "35"
- 2010, c. 25, s. 99
Marginal note: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.
Marginal note: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.
Records and Information
Marginal note: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.
Marginal note: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.
Marginal note:Language and location of record
(3) Unless otherwise authorized by the Minister, a record shall be kept in Canada in English or French.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note:Electronic funds transfer
- 2014, c. 20, s. 90
Marginal note:Requirement to provide information
38 (1) Despite any other provision of this Act, the Minister may, by a notice served or sent in accordance with subsection (2.1), require a person resident in Canada or a person that is not resident in Canada but that carries on business in Canada to provide any information or record.
(2) The notice shall set out
(a) a reasonable period of not less than 90 days for the provision of the information or record;
(b) a description of the information or record being sought; and
(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.
(2.1) A notice referred to in subsection (1) may be
(a) served personally;
(b) sent by registered or certified mail; or
(c) sent electronically to a bank or credit union (as defined in subsection 123(1) of the Excise Tax Act) that has provided written consent to receive notices under subsection (1) electronically.
Marginal note:Review of information requirement
(3) If a person is served or sent a notice of a requirement under subsection (1), the person may, within 90 days after the day on which the notice is served or sent, apply to a judge for a review of the requirement.
Marginal note:Powers on review
(4) On hearing an application in respect of a requirement, a judge may
(a) confirm the requirement;
(b) vary the requirement if satisfied that it is appropriate in the circumstances to do so; or
(c) set aside the requirement if satisfied that it is unreasonable.
Marginal note: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 that is not resident in Canada, if that person is related, for the purposes of the Income Tax Act, to the person on which the notice of the requirement is served or to which that notice is sent.
Marginal note:Time period 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 application is finally disposed of shall not be counted in the computation of
(a) the period set out in the notice of the requirement; or
(b) the period within which an assessment may be made under section 42.
Marginal note:Consequence of failure
(7) If a person fails to comply substantially with a notice served or sent 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.
- 2002, c. 9, s. 5 “38”
- 2018, c. 27, s. 62
- 2021, c. 23, s. 72
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.
Marginal note: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.
Marginal note: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.
Marginal note:Refund on reassessment
(4) If a person has paid an amount assessed under this section in respect of a reporting period and the amount paid exceeds the amount determined on reassessment to have been payable by the person in respect of that reporting period, 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.
Marginal note: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.
- 2002, c. 9, s. 5 "39"
- 2010, c. 25, s. 100
Marginal note: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.
(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.
(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.
(4) A refund shall not be paid until the person has filed with the Minister all returns and other records of which the Minister has knowledge that are required to be filed under this Act, the Excise Tax Act, the Income Tax Act, the Excise Act, 2001, the Underused Housing Tax Act and the Select Luxury Items Tax Act.
(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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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
(a) to give effect to a decision on an objection or appeal; or
(b) with the written consent of an appellant to dispose of an appeal.
Marginal note: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,
(a) made a misrepresentation that is attributable to their neglect, carelessness or wilful default; or
(b) committed fraud with respect to a return or an application for a refund filed under this Act.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Objections to Assessment
Marginal note: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.
Marginal note:Issue to be decided
(2) A notice of objection shall
(a) reasonably describe each issue to be decided;
(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.
Marginal note: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.
Marginal note: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
(a) only if the person complied with subsection (2) in the notice with respect to that issue; and
(b) only with respect to the relief sought in respect of that issue as specified by the person in the notice.
Marginal note: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.
Marginal note: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.
Marginal note:Acceptance of objection
(7) The Minister may accept a notice of objection even though it was not filed in the prescribed form and manner.
Marginal note: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.
Marginal note:Waiving reconsideration
(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.
Marginal note: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.
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