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Copyright 2000: Queen’s Printer,
St. John's, Newfoundland and Labrador, Canada

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Revised Statutes of Newfoundland 1990


CHAPTER G-1

AN ACT RESPECTING A TAX UPON THE CONSUMER OF GASOLINE AND OTHER SIMILAR LIQUIDS

Analysis

1. Short title

2. Definitions

3. Tax levied

4. Tax on fuel for vessels

5. Tax reduction for south coast Labrador

6. Gasoline brought into province

7. Gasoline held for consumption

8. Gasoline not purchased at retail sale

9. Application of taxing sections

10. No double tax

11. Records

12. Estimating tax in default and result

13. Tax-exempt gasoline

14. Agreement to pay tax and refunds

15. Power to issue licences

16. Application for licences

17. Power to suspend, etc.

18. Saving provision

19. Prohibited sales of gasoline

20. Retailer to post licence

21. Accounts and returns

22. Availability of returns

23. Automatic revocation of licence

24. Collection agreements

25. Levying the tax

26. Liability for tax, penalties, etc.

27. Purchaser's liability for tax

28. Action to recover

29. Certificate of default

30. Demand on 3rd party

31. Onus of proof

32. Effect of fine or penalty

33. Effect of default

34. Bulk sale of outlet

35. Application of Financial Administration Act

36. Eligibility of member of House of Assembly

37. Preservation of records

38. Marking gasoline

39. Gasoline delivery

40. Breaches of Act

41. No defence from prior breach

42. Appointment of inspectors

43. Powers of inspectors

44. Interference

45. Confiscation

46. Actions against inspectors

47. Evidence

48. Regulations

49. Average retail price

50. Penalty

51. Penalty re marked gasoline

52. Licensee considered consumer

53. Additional penalty

54. Penalty for default on returns

55. Interest

56. Review re licence

57. Review of estimated tax

58. Review

59. Onus of proof

60. Appeal to Trial Division

61. Appeal to Court of Appeal

62. Irregularity

63. Effect of delay, etc.

64. Remission authorized

65. Application of Financial Administration Act

66. Delegation of functions

67. Offence: failure to keep books, etc.

68. Offence: selling gasoline unlawfully

69. Offence: failure to keep records

70. Offence: default in collecting tax, etc.

71. General offence and penalty

72. Application of Criminal Code

73. Corporate liability

74. No time limitation

75. Meters required

76. Sealed equipment

77. Interprovincial agreements

78. Service or return

79. Consolidated Revenue Fund


Short title

1. This Act may be cited as the Gasoline Tax Act.

1978 c39 s1

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Definitions

2. In this Act

(a) "average retail price" means the average retail price of gasoline as prescribed by the regulations;

(b) "collector" means a person appointed an agent of the minister for the collection of the tax imposed by this Act;

(c) "gasoline" includes every liquid or combination of liquids, under whatever name it is known or sold, that is capable of being used for the purpose of generating power in an internal combustion engine whether or not the liquid or combination or a part of it is produced, derived or recovered from petroleum, natural gas, shale or coal;

(d) "inspector" means a person appointed under section 42;

(e) "licence" means a valid licence issued under this Act;

(f) "licensee" means a person who holds a valid licence issued to that person under this Act;

(g) "marked" means marked by a specific dye as required by the regulations;

(h) "marked gasoline" means gasoline marked in accordance with the regulations;

(i) "minister" means the Minister of Finance;

(j) "outlet" means a station, shop, establishment, vehicle or other place or thing from or in which gasoline is kept for sale;

(k) "retail purchaser" means a person who, by a sale, acquires gasoline not for resale but

(i) for his or her own consumption or use or his or her own intended consumption or use or for the consumption or use or the intended consumption or use of other persons at his or her expense, or

(ii) on behalf of or as the agent for a principal who wishes to acquire the gasoline for consumption or use by that principal or by other persons at the expense of that principal;

(l) "retail sale" means a sale to a retail purchaser;

(m) "retailer" means a person holding a valid licence issued under this Act authorizing that person to sell gasoline or keep gasoline for sale direct to retail purchasers;

(n) "return" means information obtained under this Act or the regulations from the records of a licensee or taxpayer, or from a 3rd party where that information relates to the licensee or taxpayer;

(o) "sale" means a sale for cash or on credit or a sale where the price is payable by instalments, and includes a barter, an exchange and another contract by which, at a price or other consideration, a person gives gasoline to another;

(p) "tax" means the tax imposed by this Act and includes all penalties and interest that are added to the tax under this Act;

(q) "tax-exempt gasoline" means gasoline that is not taxed under this Act;

(r) "taxpayer" means a person who is liable to pay money by way of tax under this Act; and

(s) "wholesaler" means a person who holds a valid licence issued under this Act authorizing that person to sell or keep gasoline for sale otherwise than to retail purchasers.

1978 c39 s2; 1980 c22 s1; 1981 c34 s1; 1989 c6 s1

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Tax levied

3. (1) A person who acquires gasoline at a retail sale in the province shall pay to the Crown at the time of the sale

(a) on all grades of gasoline, other than diesel fuel grade of gasoline, a tax, rounded down to the nearest 1/10 of a cent a litre, that is equal to 23% of the average retail price; and

(b) on diesel fuel grade of gasoline, a tax, rounded down to the nearest 1/10 of a cent a litre, that is equal to 27% of the average retail price.

(2) In addition to the tax payable under paragraph (1)(a), a person who acquires leaded gasoline at a retail sale in the province shall pay to the Crown, at the time of the sale, on all grades of leaded gasoline, a tax of 1.5 cents a litre.

(3) Notwithstanding subsection (1), a person who acquires gasoline at a retail sale in the province for use in an aircraft shall pay to the Crown at the time of the sale a tax of 7/10 of a cent a litre.

(4) In this section "litre" means the unit of measurement known as the litre and set out in Schedule II of the Weights and Measures Act (Canada).

1989 c6 s2

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Tax on fuel for vessels

4. Notwithstanding subsection 3(1), a person who acquires gasoline at a retail sale in the province for the operation of sea-going vessels or boats, other than pleasure craft, shall pay to the Crown at the time of the sale a tax of 12% of the purchase price of the gasoline.

1989 c6 s3

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Tax reduction for south coast Labrador

5. Notwithstanding paragraph 3(1)(a) but subject to subsection 3(2) and section 4, a person who acquires gasoline, other than diesel fuel, at a retail sale in the coastal area of southern Labrador extending from the border with the province of Quebec to and including the community of Red Bay, in respect of the consumption or use of the gasoline in that area, shall pay to the Crown at the time of the sale a tax rounded down to the nearest 1/10 of a cent a litre that is equal to 22% of the average retail price less 1.5 cents a litre.

1984 c5 s1

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Gasoline brought into province

6. (1) A person who brings gasoline into the province, or who receives delivery of gasoline in the province, for that person's own consumption or use as a consumer, shall immediately report the matter in writing to the minister.

(2) A person who is required to make a report under subsection (1) shall supply with the report to the minister the invoice for the gasoline and all other pertinent information that may be required by the minister in respect of the consumption or use of the gasoline.

(3) A person who is required to make a report under subsection (1) shall pay to the Crown, at the same time as the report, a tax in the amount that would be payable if the gasoline had been purchased at a retail sale in the province by that person.

1978 c39 s4

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Gasoline held for consumption

7. A person who has or keeps in that person's possession or under that person's control gasoline in respect of which no tax has been paid under this Act and that he or she has, keeps or controls for himself or herself as a consumer shall immediately pay to the Crown a tax in the amount that would be payable if the gasoline had been purchased at a retail sale in the province by that person.

1978 c39 s5

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Gasoline not purchased at retail sale

8. (1) A person who consumes or uses gasoline originally acquired by that person at a sale other than a retail sale and in respect of which no tax has been paid under this Act shall, as soon as that person consumes or uses that gasoline, pay to the Crown a tax in the amount that would be payable if the gasoline had been purchased at a retail sale in the province by that person.

(2) Where a person who is not a collector acquires tax-exempt gasoline for resale, that person shall report that fact to the minister.

(3) Where a person makes a report to the minister under subsection (2) and

(a) sells a quantity of that gasoline for use in an internal combustion engine in circumstances in which it would stop being tax-exempt gasoline; or

(b) consumes or uses a quantity of that gasoline in an internal combustion engine in circumstances in which it would stop being tax-exempt gasoline,

that person shall collect and pay, or pay, as the case may require, to the Crown a tax in the amount that would be payable if the gasoline had been purchased in the first instance by that person at a retail sale in the province.

1978 c39 s6

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Application of taxing sections

9. Sections 3 to 8 do not apply

(a) to a person visiting the province as a genuine tourist who brings into the province gasoline in accordance with, and not exceeding the quantity prescribed by, the regulations; or

(b) to a person engaged in an interprovincial trucking operation in respect of which an agreement has been entered into under section 77.

1978 c39 s7

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No double tax

10. Sections 3 to 8 do not authorize the imposition of a tax under this Act more than once upon the same gasoline.

1978 c39 s8

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Records

11. (1) A person who acquires gasoline for that person's own consumption shall, when required to do so by the minister, maintain records, in a form satisfactory to the minister, that show the details of the purchases and consumption of the gasoline.

(2) Records kept under subsection (1) shall be made available to an inspector at reasonable times by the person maintaining them.

1978 c39 s9

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Estimating tax in default and result

12. (1) When a collector, deputy collector or taxpayer fails to make a return or payment as required by this Act or the regulations, or the returns by a person are not substantiated by that person's records, the minister may estimate the amount of tax collected by the collector or deputy collector or payable by the taxpayer, and the amount so estimated is considered to be the tax collected or payable by that person.

(2) The collector, deputy collector or taxpayer shall pay the amount of tax estimated under subsection (1) to the Crown.

(3) The minister may, by written notice either mailed or served on the collector, deputy collector or taxpayer or his or her heirs, administrators, executors or assigns, require the collector, deputy collector or taxpayer to pay over to the Crown, or otherwise account for, the amount estimated under subsection (1) within 30 days after the date on which the notice is mailed or served.

1978 c39 s10

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Tax-exempt gasoline

13. (1) The tax imposed by this Act is not payable in respect of

(a) gasoline used by a department of the government of the province for its own operations;

(b) gasoline used

(i) for its own operation by the St. John's Municipal Council, the Corner Brook City Council, the Mount Pearl City Council, the St. John's Metropolitan Area Board, or a town, community, regional council or local service district established or continued under the Municipalities Act, in vehicles and equipment operated by those bodies, whether rented, leased or owned by those bodies, but not including vehicles operated in the provision of a transportation system operated for hire, or

(ii) in vehicles and equipment operated by a council, board or corporation referred to in subparagraph (i), whether the vehicles and equipment are rented, leased or owned by it, and not being vehicles operated in the provision of a transportation system or otherwise operated for hire or on behalf of a council, board or corporation;

(c) gasoline delivered for consumption or use in aircraft on flights that begin or end at points outside of points in North America;

(d) gasoline purchased in bulk for direct export from the province and so exported;

(e) furnace oil, stove oil, kerosene, propane gas, butane gas, liquefied petroleum gas or naphtha used for a purpose other than the generating of power in an internal combustion engine; or

(f) gasoline or a product falling within the definition of gasoline under this Act that is exempted from this Act by another Act or by the regulations.

(2) Where a tax is paid under this Act for gasoline in respect of which it is not payable, the minister may, on proof satisfactory to the minister of the circumstances, refund, in accordance with the regulations, to the person entitled to receive it the amount of the payments made.

1978 c39 s11; 1979 c25 s2; 1979 c33 Sch C;
1979 c45 s1; 1980 c24 s7; 1983 c5 s2; 1989 c12 s13

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Agreement to pay tax and refunds

14. Subject to the regulations, a person who operates a vehicle or equipment in which tax-exempt gasoline may lawfully be consumed while on other occasions tax-exempt gasoline may not be so consumed, that person and the minister may enter into an agreement under which that person would

(a) purchase gasoline and pay the tax on that gasoline;

(b) claim for the amount of the gasoline that would have been tax-exempt gasoline in the period set out in the agreement; and

(c) be refunded an amount equal to the amount of the tax paid on the tax-exempt gasoline on the requisition of the minister and an adequate proof of the facts asserted to establish the claim for refund.

1978 c39 s12

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Power to issue licences

15. (1) The minister may issue to a person

(a) a retailer licence authorizing that person to sell or keep gasoline for sale directly to retail purchasers at that outlet only as may be specified in that licence; or

(b) a wholesaler licence authorizing that person to sell or keep gasoline for sale otherwise than directly to retail purchasers.

(2) Where in the minister's sole discretion the minister considers it desirable to do so, the minister may issue both a retailer licence and a wholesaler licence to a person.

(3) The minister may, for cause, refuse to issue a licence to a person.

(4) A licence issued under this Act expires at midnight on December 31 of the calendar year in respect of which it was issued.

1978 c39 s13; 1983 c55 s1

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Application for licences

16. An application for a licence must be made to the minister on a form to be supplied by the minister and be accompanied by the fee that may be prescribed by regulations in respect of the licence applied for.

1978 c39 s14

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Power to suspend, etc.

17. The minister may, for cause,

(a) suspend or cancel a licence;

(b) limit the operation of a licence as to the kind of gasoline to be sold by the licensee or as to the location where gasoline may be sold or apply both of those limitations in respect of the operation of a licence; or

(c) limit the operation of a licence in another manner.

1978 c39 s15

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Saving provision

18. (1) Nothing in this Act requires a person to obtain either a retailer or wholesaler licence merely because that person sells furnace oil, stove oil, kerosene, naphtha, butane gas, propane gas or liquefied petroleum gas for purposes other than use in the generation of power in internal combustion engines.

(2) A person mentioned in subsection (1) shall not rebrand products described in subsection (1) and sell them for consumption in internal combustion engines, whether as taxable gasoline or otherwise, unless that person is in possession of a wholesaler licence issued under section 15.

1978 c39 s16; 1983 c55 s2

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Prohibited sales of gasoline

19. (1) A person shall not offer for sale, keep for sale, or sell gasoline in the province, except under the authority conferred by a licence issued to that person.

(2) A wholesaler shall not sell gasoline at a retail sale, unless the wholesaler also holds a valid retailer licence.

(3) A wholesaler shall not sell gasoline to a person for resale at retail sale, unless that person holds a valid retailer licence issued to that person.

(4) A retailer shall not sell or keep gasoline for retail sale unless the gasoline has been purchased by that retailer from a wholesaler or another retailer.

(5) A wholesaler shall not sell to a person a smaller quantity of gasoline than 180 litres.

1978 c39 s17

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Retailer to post licence

20. A retailer shall post the retailer's licence and keep it posted in a conspicuous place at the retail outlet or in other places that may be prescribed by the regulations.

1978 c39 s18

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Accounts and returns

21. (1) A licensee shall keep accounts in the form prescribed

(a) of all purchases, sales, deliveries, rebrandings, transfers and losses of all grades of gasoline by that licensee in the province;

(b) of sales and deliveries by that licensee to points outside the province;

(c) of sales and deliveries of tax-exempt gasoline; and

(d) of quantities on hand and quantities used in the province by that licensee,

and a licensee shall make returns to the minister in the form, in the manner, and at the time prescribed by the regulations.

(2) The minister may require a licensee, person supplying gasoline to a licensee or another person or a class of licensees or persons to keep those records and accounts in the form that the minister may prescribe.

(3) A licensee shall keep on file at the licensee's outlet or place of business a bill, receipt or invoice covering purchases of gasoline made by the licensee.

1978 c39 s19

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Availability of returns

22. (1) Returns made under this Act shall not be made available to persons except persons authorized by the minister to receive them.

(2) The minister may not authorize a person to receive returns made under this section unless it is necessary to do so for the purpose of this Act.

(3) Notwithstanding subsections (1) and (2), the minister may

(a) communicate to a person employed by the Government of Canada or of a province information obtained under this Act; or

(b) permit a person employed by the Government of Canada or of a province to inspect or have access to a form, return or statement provided under this Act.

(4) Subsection (3) applies only in those circumstances where

(a) on a reciprocal basis similar information is communicated to the minister by a reciprocating jurisdiction and persons employed by this province may inspect and have access to similar forms, returns and statements under the control of the reciprocating jurisdiction; and

(b) the information communicated under subsection (3) and the inspection and access permitted under that subsection will not be used for a purpose other than the administration or enforcement of a law of the reciprocating jurisdiction that provides for the imposition of a tax.

(5) The minister may communicate to a collector information on the type of gasoline sold in the province and on the identity of the sellers.

1978 c39 s20; 1983 c55 s3

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Automatic revocation of licence

23. Where a licensee stops carrying on a business of selling gasoline in respect of which a licence was issued to the licensee under this Act, that licence is automatically revoked and shall be returned, by the person to whom it was issued or that person's personal representative, to the minister within 15 days of the date that business stops being carried on.

1978 c39 s21

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Collection agreements

24. (1) The minister may enter into an agreement with a person appointing that person an agent of the minister for the collection of the tax imposed by this Act.

(2) The tax received by a collector shall be accounted for and remitted to the minister at the time and in the manner prescribed by the regulations.

(3) The minister may pay collectors or retailers the remuneration or allowance that may be prescribed by the regulations.

1978 c39 s22; 1983 c55 s4

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Levying the tax

25. (1) At the time of a sale of gasoline to a retail purchaser the person making the sale shall levy and collect the tax imposed by this Act and shall, in accordance with the regulations, pay over the tax so collected to the collector from whom the gasoline was acquired or, where the minister so requires, directly to the minister.

(2) Where money by way of tax is collected on gasoline that was sold to a retail purchaser but acquired by the seller otherwise than from a collector, that money shall be paid over to the minister at the time and in the manner prescribed by the regulations.

(3) A person selling gasoline to a retail purchaser shall, on the request of the retail purchaser, deliver to the retail purchaser an invoice showing the number of litres of gasoline sold to the retail purchaser and the amount of the tax paid.

1978 c39 s23; 1983 c55 s5

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Liability for tax, penalties, etc.

26. (1) A person who collects money by way of tax under this Act holds that money in trust for the Crown and shall pay over the money in the manner and at the time prescribed by the regulations.

(2) The amount of tax collected under this Act and not paid over as required under subsection (1)

(a) is recoverable by action in a court as a debt due to the Crown; and

(b) until so paid, is a 1st lien on the entire assets of the estate of the person who collected it and has priority over all other claims of a person.

(3) Penalties or interest imposed under section 50, 51, 53, 54 or 55,

(a) is recoverable with costs by action in the name of the minister in a court as a debt due to the Crown; and

(b) until paid is a 1st lien upon the entire assets of the estate of the person owing the sum, and has priority over all other claims of a person.

1978 c39 s24

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Purchaser's liability for tax

27. (1) The retail purchaser and other persons on whom the tax is imposed by this Act is and remains liable for the tax until it has been collected.

(2) Where a person selling gasoline to a retail purchaser fails to collect the tax, that person shall immediately notify the minister.

(3) The tax may be recovered from the retail purchaser, or another person on whom the tax is imposed, by action in a court as a debt due to the Crown.

1978 c39 s25

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Action to recover

28. (1) The amount of the tax may be recovered with costs, by action in the name of the minister in a court, as a debt due to the Crown.

(2) An action under subsection (1) shall be tried without a jury and the court may make an order as to costs in favour of or against the Crown.

1978 c39 s26

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Certificate of default

29. (1) Where default is made by a person in the payment of a tax or a part of a tax that is due or that has been collected on behalf of the Crown under this Act, the minister may issue a certificate stating the amount due and remaining unpaid to the Crown and the name of the person by whom it is payable, and file the certificate with the Registrar of the Supreme Court.

(2) When a certificate is filed with the Registrar of the Supreme Court, it is of the same effect and all proceedings may be taken on the certificate, as if it were a judgment of the Trial Division for the recovery of the amount stated in the certificate against the person named in the certificate.

1978 c39 s27

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Demand on 3rd party

30. (1) Where the minister has knowledge that a person is or is about to become indebted to a taxpayer, a retailer or a collector, the minister may demand of that person that the money otherwise payable by that person to the taxpayer, retailer or collector be in whole or in part paid to the minister on account of the liability of that taxpayer, retailer or collector under this Act.

(2) The receipt of the minister for money paid by a person in response to a demand made under subsection (1) constitutes a sufficient discharge of the liability of that person to the taxpayer, retailer or collector to the extent of the amount set out in the receipt.

(3) A person discharging a liability to a taxpayer, retailer or collector after receipt of a demand made under subsection (1) is personally liable to the Crown in an amount that is the lesser of

(a) the liability discharged as between that person and the taxpayer, retailer or collector; and

(b) the liability of the taxpayer, retailer or collector for the money due under this Act or that has been collected on behalf of the Crown, but not remitted, including penalties.

1978 c39 s28

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Onus of proof

31. In a prosecution for failure to pay the tax or to collect or remit the tax and in an action to recover money for which a person is liable under this Act, an affidavit by an officer of the Department of Finance that the office has charge of the appropriate records and that after careful examination and search of those records the officer has been unable to find a record that the tax has been paid or collected or remitted is, in the absence to the contrary, proof that the tax or money has not been paid, collected or remitted to the minister.

1978 c39 s29

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Effect of fine or penalty

32. The liability of a person for the payment of a tax under this Act or the liability to remit the tax collected is not affected by the fact that a fine or penalty has been imposed on or paid by that person in respect of a contravention of this Act.

1978 c39 s30

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Effect of default

33. Where a collector fails to make the returns required by the regulations or to pay over to the minister a tax collected by the collector at the time prescribed by the regulations, the minister may cancel the agreement with and revoke the appointment of that collector.

1978 c39 s31

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Bulk sale of outlet

34. (1) A person shall not dispose of gasoline through a sale in bulk without first obtaining a certificate in duplicate from the minister

(a) that all taxes collectable or payable by that person have been paid; or

(b) that an arrangement satisfactory to the minister has been entered into with that person for the payment of the taxes or for receiving their payment.

(2) Where a person purchases the gasoline of another person through a sale in bulk, the purchaser is liable, in addition to a liability imposed on the purchaser by this Act for payment of the tax on stock acquired by the purchaser through that sale, for payment of a tax then collected and due by that other person but not remitted to the minister, unless the purchaser obtains from that person a copy of the certificate issued by the minister under subsection (l).

(3) In this section, "sale in bulk" and "stock" have the same meaning as in the Bulk Sales Act.

1978 c39 s32

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Application of Financial Administration Act

35. A person who collects the tax imposed under this Act shall be considered to act subject to sections 77 to 80 and section 83 of the Financial Administration Act, and for the purposes of those sections that person is a person who has received money on behalf of the Crown.

1978 c39 s33

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Eligibility of member of House of Assembly

36. Notwithstanding anything contained in another Act, a retailer or collector collecting a tax or a collector receiving a remuneration or allowance provided under this Act is not, by reason only of his or her so collecting the tax or receiving a remuneration or allowance, ineligible to be elected as a member of or to sit and vote in the House of Assembly.

1978 c39 s34

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Preservation of records

37. (1) A person required by this Act or the regulations to keep accounts, books or records shall preserve all those accounts, books and records until the minister consents in writing to their destruction.

(2) For the purpose of subsection (1), a bill, receipt or invoice referred to in subsection 21(3) is considered to be a record required to be kept by this Act.

1978 c39 s35

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Marking gasoline

38. For the purposes of distinguishing gasoline used or to be used for specified purposes, the minister may order a kind of gasoline to be marked in accordance with the regulations.

1978 c39 s36

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Gasoline delivery

39. The driver of a vehicle engaged in transporting or delivering gasoline

(a) shall have in his or her possession in that vehicle at all times an invoice or bill of lading respecting the products being carried on or by the vehicle and correctly identifying each product and the quantity of each product loaded;

(b) shall, when requested to do so by an inspector, produce the invoice or bill of lading mentioned in paragraph (a); and

(c) shall not place tax-exempt gasoline in the storage tank of an internal combustion engine unless the owner or operator of the engine produces a tax-exempt permit or certificate issued under the regulations that authorizes the use of tax-exempt gasoline.

1978 c39 s37

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Breaches of Act

40. (1) A person contravenes this Act who

(a) sells, keeps with intent to sell, purchases, uses or keeps with intent to use marked gasoline for a purpose other than the purpose in respect of which it is marked under the regulations;

(b) adds to or introduces into marked gasoline a substance, compound or preparation, or submits marked gasoline to a mechanical, chemical or other process, for the purpose of removing the marking colouring from the gasoline or of making the colouring invisible;

(c) mixes or combines with marked gasoline another type or grade of gasoline; or

(d) marks gasoline in a manner other than that prescribed by the regulations.

(2) A person contravenes this Act who has marked gasoline, or a trace of the dye used to mark gasoline under section 38, in the fuel system of motorized equipment when marked gasoline is not authorized under this Act or the regulations for consumption in that motorized equipment.

(3) A person who contravenes this Act as described in subsection (2) is guilty of an offence and is liable on summary conviction to a fine of not more than $5,000 and not less than $100 or to imprisonment for a term of not more than 6 months or to both a fine and imprisonment.

1978 c39 s38; 1983 c55 s6; 1989 c6 s4

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No defence from prior breach

41. The fact that marked gasoline or a trace of the dye used to mark gasoline that was found in a motor vehicle, ship, boat, aircraft or other motorized equipment is the same gasoline or trace that was found in the motor vehicle, ship, boat, aircraft or other motorized equipment on another occasion that constituted a contravention of this Act is not a defence in a prosecution for a subsequent contravention of this Act if a period of more than 24 hours has elapsed since taking a sample of gasoline from that motor vehicle, ship, boat, aircraft or other motorized equipment.

1978 c39 s39

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Appointment of inspectors

42. The Lieutenant-Governor in Council may appoint or designate those inspectors, officers and other persons that the Lieutenant-Governor in Council considers necessary for the administration of this Act.

1978 c39 s40

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Powers of inspectors

43. (1) A licensee and another person having gasoline in his or her possession or keeping gasoline for sale shall permit in accordance with this section an inspector, officer or other person appointed or designated under section 42 to enter upon the premises and shall disclose and make available for examination by that inspector all books, invoices, letters and documents relating to sales, purchases, use or consumption of gasoline.

(2) An inspector may enter at a reasonable time the business premises occupied by a person, or the premises where the records of a person are kept so long as it is reasonably necessary to determine compliance with this Act

(a) to inspect, audit or examine books of account, records or documents; or

(b) to ascertain the quantities of gasoline on hand or sold by that person or on those premises,

and the person occupying or in charge of the premises shall answer all questions concerning those matters and produce those books of account, records or documents that may be required by the inspector.

(3) Where an inspector believes on reasonable grounds that a person has contravened this Act or the regulations the inspector may with a warrant issued under subsection (4) enter and search the premises, motor vehicle, ship, boat, aircraft or other mechanized equipment or storage or bulk delivery facility, and examine and take a sample of gasoline and examine books, documents, correspondence or records in relation to the investigation.

(4) A Provincial Court judge or justice of the peace who is satisfied by information upon oath or affirmation that there are reasonable grounds for believing that there is on a premises, motor vehicle, ship, boat, aircraft or other mechanized equipment or storage or bulk delivery facility anything that there are reasonable grounds to believe will give evidence with respect to an offence under this Act may issue a warrant authorizing an inspector named in the warrant to enter and search the premises, motor vehicle, ship, boat, aircraft, other mechanized equipment or storage or bulk delivery facility, and subject to those conditions that may be specified in the warrant

(a) make those inquiries and copies that are considered necessary;

(b) seize a sample of gasoline for evidence or for analysis; or

(c) seize the whole amount of gasoline and bring it to a place of safe custody and keep it there until the court by its judgment has disposed of it, after which, if it is confiscated, the inspector shall dispose of it as the minister directs.

(5) Where an inspector seizes gasoline under subsection (4), he or she may also seize and detain in safe custody a motor vehicle, ship, boat, aircraft or other motorized equipment in which that gasoline was found or carried until

(a) the matter has been disposed of and a tax required to be paid under this Act has been paid; or

(b) a charge has been laid under this Act and a deposit or bond in an amount satisfactory to the minister has been provided by the owner or operator of a motorized equipment so detained.

(6) Notwithstanding subsection (3), an inspector may exercise the power of search referred to in that subsection without a warrant issued under subsection (4) if the conditions for obtaining the warrant exist but because of urgent circumstances it would not be practical to obtain the warrant.

(7) For the purpose of subsection (6), urgent circumstances include circumstances in which the delay necessary to obtain the warrant would result in danger to human life or safety or the loss or destruction of evidence.

1985 c11 s45

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Interference

44. A person contravenes this Act who interferes with or hinders an inspector conducting a search or making an investigation under this Act or exercising a right or discharging a duty conferred or imposed on him or her by this Act or the regulations.

1978 c39 s42

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Confiscation

45. When in respect of gasoline seized under this Act a person is convicted of an offence under this Act or the regulations, the gasoline may be declared confiscated to the Crown by the court recording the conviction.

1978 c39 s44

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Actions against inspectors

46. Where a court before which a proceeding is taken against an inspector for anything done by him or her under this Act or the regulations is satisfied that there was probable cause for the action of the inspector, and that his or her action was not malicious, a verdict or judgment shall not be given against the inspector for more than $0.05 damages or for the costs of suit.

1978 c39 s45

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Evidence

47. In a prosecution under this Act or the regulations,

(a) it is proof, in the absence of evidence to the contrary, that a liquid is gasoline and was used to propel a motor vehicle, ship, boat or other motorized equipment when it is established that it was found in the fuel tank or an auxiliary tank or a part of the fuel supply system of that motor vehicle, ship, boat or other motorized equipment; and

(b) a certificate by an analyst in the employment of the government of the Crown in right of Canada or of the Crown in right of the province certifying the ingredients of the gasoline or that the gasoline is marked gasoline or contains marked gasoline is, in the absence of evidence to the contrary, proof of the facts stated in the certificate and of the authority of the person giving the certificate without proof of his or her appointment or signature.

1978 c39 s46

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Regulations

48. (1) The Lieutenant-Governor in Council may make regulations

(a) prescribing the manner in and the times at which the tax collected by collectors or payable by other persons is to be paid to the minister;

(b) prescribing the remuneration or allowance to be paid to collectors or retailers, the time and the manner of and conditions precedent to the payment of the remuneration or allowance;

(c) requiring the providing of surety bonds by a person who under this Act is required to collect tax and prescribing the form and amount of the bonds;

(d) providing for the accounting for a sum of money collected by collectors and collected or payable by other persons under this Act and regulating the time and manner of the accounting;

(e) prescribing the returns and statements to be made by licensees and other persons, the information to be given in the returns and statements, and by whom and in what manner they are to be made;

(f) prescribing the form in and the date before which all applications for licences may be made, and the form of all returns, statements, accounts, books and records to be made, provided, supplied, rendered or kept under this Act or the regulations;

(g) declaring that the use of gasoline for a purpose specified in the regulations is to entitle the user to a refund of tax in the method and to the extent and under the conditions specified in the regulations;

(h) exempting from this Act gasoline used for a purpose specified in the regulations;

(i) providing that gasoline of a prescribed quantity brought into the province by a tourist is to be exempted from this Act and prescribing the quantity to and the condition under which the exemption is to apply;

(j) exempting a class of persons from the payment of the tax;

(k) authorizing and regulating tax exemption permits or certificates to be issued to persons or classes of persons exempted, by this or another Act or otherwise, from the payment of tax under this Act and prescribing the form and contents of the permits and certificates, the periods for which they may be issued, the fees for them and authorizing the issue of the permits and certificates by the minister or other persons;

(l) authorizing the issue of tax-exemption permits or certificates, subject to those rules that the minister may prescribe, to refuse to issue the permits or certificates and to suspend or cancel the permits or certificates in the circumstances that the minister may prescribe;

(m) providing the method of refunding to a retail purchaser the tax or a portion of the tax paid in respect of tax-exempt gasoline, and prescribing the records and material to be provided upon an application for a refund;

(n) prescribing the duties of inspectors;

(o) providing for the holding of inquiries into the operation of this Act and into a charge or complaint that a person has contravened this Act or the regulations, or has made a false statement in a return or statement required to be made by this Act or the regulations, or into another matter arising in the administration of this Act, and providing that the person holding that inquiry has the powers that may be conferred upon a commissioner under the Public Inquiries Act, including the power to take evidence under oath or affirmation;

(p) designating the places at which retailers are to post and keep licences posted;

(q) prescribing the fees payable for licences, which may be different for wholesaler licences and retailer licences, and for the different forms of each of those licences;

(r) requiring licensees to indicate the grade and price of gasoline offered for sale;

(s) prescribing the octane classification of gasoline to be marked;

(t) prohibiting the marking of gasoline of an octane classification other than that prescribed by the regulations;

(u) prohibiting the treatment of gasoline by the addition of a substance, compound or preparation, or by submitting it to a mechanical, chemical or other process, or in another manner, so as to give it the appearance of marked gasoline;

(v) prescribing the type, ingredients and other specifications of the colouring to be used to mark gasoline and the manner in which the gasoline is to be marked;

(w) prescribing the persons who may mark gasoline and the time and manner of the marking;

(x) prescribing the minimum and maximum amount of gasoline that may be marked by a person at a time and the amount of gasoline that may be marked by that person during a period;

(y) prescribing the manner in which marked gasoline may be sold;

(z) requiring that all persons who mark gasoline or deal with marked gasoline file reports and statements with the minister, and prescribing the periods to be covered by the reports and statements and the times of filing them and the contents and form of the reports and statements;

(aa) providing for the refunding to a collector of all or a part of money paid as tax by the collector on behalf of a deputy or dealer of the deputy or taxpayer who has defaulted in paying that amount of tax to him or her, prescribing the circumstances in which and the conditions on which those refunds are to be made; and

(bb) generally, to give effect to the purpose of this Act.

(2) Regulations made under this section exempting gasoline from the tax imposed under section 4 may be made with retroactive effect to July 1, 1989.

1978 c39 s47; 1981 c34 s3; 1982 c15 s2; 1983 c5 s3; 1983 c55 s8; 1989 c6 s5

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Average retail price

49. The minister may by order

(a) set out the manner and method in which the average retail price of gasoline and diesel fuel grade of gasoline may be determined for the purpose of section 3; and

(b) provide for the publication of the average retail price of gasoline and diesel fuel grade of gasoline.

1982 c15 s3; 1983 c23 s9

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Penalty

50. (1) Where a person sells gasoline at a retail sale and fails to collect a tax that by this Act he or she is required to collect, that person is, irrespective of a penalty imposed by this Act and without the interposition of a court, liable to, and shall pay to the minister, a penalty in an amount equal to the total of

(a) the amount of the loss sustained by the Crown because of the failure of that person to so collect; and

(b) 10% of the amount of that loss, unless the minister decides not to require that 10%.

(2) Subsection (1) applies whether or not the person who sells the gasoline is a retailer.

(3) In a case referred to in subsection (1), the minister may make an estimate of the amount of the loss sustained by the Crown and the amount so estimated shall, for the purpose of this Act, be considered to be the actual loss so sustained.

(4) The minister may, by written notice either mailed to or served on the person concerned, require that person to pay to the minister, or otherwise account for, the penalty referred to in subsection (1) within 30 days after the day on which the notice is mailed or served.

1978 c39 s48

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Penalty re marked gasoline

51. (1) Where a person sells marked gasoline to a purchaser other than a person entitled to acquire marked gasoline, that person is, irrespective of another penalty imposed by this Act and without interposition of a court, liable to, and shall pay to the minister, a penalty in an amount equal to the total of

(a) the amount of tax that would have been paid had taxable gasoline been sold to the purchaser; and

(b) 10% of the amount determined under paragraph (a), unless the minister decides not to require that amount.

(2) In a case referred to in subsection (1), the minister may make an estimate of the amount of the tax that would have been paid had taxable gasoline been sold to the purchaser and the amount so estimated shall, for the purpose of this Act, be considered to be the amount of the tax payable.

(3) The minister may, by written notice either mailed to or served on the person concerned, require that person to pay over to the minister, or otherwise account for, the penalty referred to in subsection (1) within 30 days after the day on which the notice is mailed or served.

(4) For the purpose of this section, a "person entitled to acquire marked gasoline" refers to

(a) a person who is the holder of a valid exemption permit or valid exemption certificate issued under the regulations;

(b) a person authorized to purchase gasoline for a department referred to in paragraph 13(1)(a);

(c) a person acquiring a product described in paragraph 13(1)(e) or any gasoline or product described in paragraph 13(1)(f); or

(d) a person who is the holder of a valid licence issued under section 15.

1978 c39 s49; 1983 c55 s9

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Licensee considered consumer

52. Where under section 21 a licensee

(a) accounts for an amount of tax-exempt gasoline that is less than the total amount of tax-exempt gasoline delivered to that licensee for sale; or

(b) does not, to the satisfaction of the minister, account for the total amount of tax-exempt gasoline delivered to that licensee for sale,

the licensee is, irrespective of another penalty imposed by this Act and without interposition of a court, liable to, and shall pay to the minister, a penalty in an amount equal to the total of

(c) the amount of tax that would have been paid

(i) in the case described in paragraph (a), on the amount of gasoline equal to the difference between the 2 amounts, and

(ii) in the case described in paragraph (b), on the amount of gasoline not satisfactorily accounted for,

as if that gasoline had not been tax-exempt gasoline; and

(d) 10% of the amount determined under paragraph (c), unless the minister decides not to require that amount.

1983 c55 s10

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Additional penalty

53. (1) A person who

(a) fails to remit within the time required by the minister or collector money collected under this Act by way of tax; or

(b) fails to pay a tax that the person is required to pay under this Act

is, irrespective of a penalty imposed by this Act and without the interposition of a court, liable to, and shall pay to the minister, a penalty in the amount equal to 10% of the amount due.

(2) In a case referred to in subsection (1), the minister may make an estimate of the amount of the penalty under that subsection and the amount so estimated shall, for the purpose of this Act, be considered to be the amount of that penalty.

(3) The minister may, by written notice either mailed to or served on the person concerned, require that person to pay over to the minister, or otherwise account for, the penalty imposed under subsection (1) within 30 days after the date on which the notice is mailed or served.

1978 c39 s50

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Penalty for default on returns

54. Where a person fails to make a return required under this Act or the regulations in the manner and within the time provided under this Act or the regulations, the minister may impose upon that person, and that person shall pay to the minister, a penalty of not more than $100.

1978 c39 s51

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Interest

55. (1) The minister shall levy interest on tax collected or payable under this Act at the rate of 1 1/2% each month from the date that the tax should have been paid over to the minister.

(2) The minister may, by written notice either mailed to or served on the person concerned, require that person to pay over to the minister, or otherwise account for, interest levied under subsection (1) within 30 days after the day on which the notice is mailed or served.

(3) The expression "tax collected or payable" in subsection (1) includes an amount previously added by way of penalty or other levies of interest.

(4) In this section "month" includes part of a month but does not include the month in which the tax is paid to the minister.

1978 c39 s52; 1981 c71 s1; 1983 c55 s11

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Review re licence

56. Where a person is dissatisfied by a refusal to issue a licence under section 15 or by the cancellation or suspension of a licence under section 17, that person may apply to the minister for a review; and the minister, after considering the application, shall confirm or alter the decision to refuse, cancel or suspend the licence and notify the applicant accordingly.

1978 c39 s53

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Review of estimated tax

57. Where a collector or taxpayer is dissatisfied with the amount contained in an estimate of tax by the minister under section 12 or 51, he or she may, within 30 days of receiving the written notice under that section, apply to the minister for a review; and the minister, after considering the application, shall confirm, amend or revoke the estimate and notify the collector or taxpayer accordingly.

1978 c39 s54

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Review

58. (1) A person who is dissatisfied by a penalty or interest imposed under sections 50 to 55 may apply to the minister for a review of the amount fixed; and the minister, after considering the application, shall confirm or amend the amount imposed by way of penalty or interest and, where the minister is satisfied that no loss has been sustained by the Crown, revoke the imposition of a penalty or interest and notify the person accordingly.

(2) The amount of penalty or interest fixed in the notification given under this section shall for the purpose of this Act be considered to be the amount fixed by the minister.

1978 c39 s55; 1983 c55 s12

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Onus of proof

59. Proof that a notification given under section 55, 56 or 57 has been mailed or served is, in the absence of evidence to the contrary, proof that the amount stated in it is due.

1978 c39 s56

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Appeal to Trial Division

60. (1) A person may appeal to a judge of the Trial Division where

(a) that person feels aggrieved by a review under section 56 relating to a suspension or cancellation of or a refusal to issue a licence;

(b) that person disputes the amount of estimated tax confirmed or amended by the minister under section 57 or his or her liability for the tax; or

(c) that person feels aggrieved by a penalty or interest as confirmed or amended by the minister under section 58.

(2) In order to appeal under subsection (1), the appellant shall, within 30 days after the notification under section 56, 57 or 58 has been mailed or served on the appellant, file in the Registry of the Supreme Court a notice of appeal.

(3) The notice of appeal under subsection (2) shall set out the grounds of the appeal; and a copy of the notice of appeal shall be served on the minister.

(4) The appellant shall, within 14 days after service of a copy of the notice of appeal under subsection (3), apply to a judge of the Trial Division for the appointment of a day for the hearing of the appeal and shall, not less than 14 days before the day appointed for the hearing, serve upon the minister a written notice of that day.

(5) The appeal and evidence brought forward by the appellant and the Crown shall be heard by the judge in a summary manner; and the judge shall, after considering all the aspects that he or she in his or her discretion considers appropriate to consider in the interests of justice, equity and fairness, decide the appeal

(a) by upholding, reducing or cancelling

(i) the suspension or cancellation of or refusal to issue a licence as confirmed or altered by the minister,

(ii) the estimate of the tax as confirmed or amended by the minister, or

(iii) the penalty or interest as confirmed or amended by the minister; or

(b) by making the other decisions that the judge considers appropriate in the circumstances.

(6) All papers and documents in the possession of the minister and affecting the matter of the appeal shall be produced before the judge on the hearing of the appeal.

(7) The costs of the appeal are in the discretion of the judge who hears the appeal and he or she may make an order respecting costs in favour of or against the Crown and may fix the amount of the costs.

1978 c39 s57; 1986 c42 Sch B

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Appeal to Court of Appeal

61. (1) An appeal may be taken to the Court of Appeal from a decision of a judge of the Trial Division upon a point of law raised upon the hearing before the judge.

(2) The rules governing appeals to the Court of Appeal from a decision of a judge of the Trial Division apply to appeals under this section.

1978 c39 s58; 1986 c42 Sch B

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Irregularity

62. An estimate made by the minister and confirmed or amended under section 57 shall not be varied or disallowed because of an irregularity, informality, omission or error on the part of a person in the observation of a directory provision of this Act or the regulations up to the date of the issuing of the notice of the estimate.

1978 c39 s59

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Effect of delay, etc.

63. Neither the giving of a notice of appeal by a person nor a delay in the hearing of that appeal,

(a) affects

(i) the due date of a tax or part of a tax under this Act that is the subject-matter of an appeal, or

(ii) liability for payment of a tax provided by this Act; or

(b) delays the collection of a tax,

but if the tax is set aside or reduced on appeal, the minister shall refund to the person entitled to the tax the excess of tax paid and of an additional penalty or interest paid on it.

1978 c39 s60

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Remission authorized

64. (1) Notwithstanding another Act, the minister, where the minister considers it appropriate to do so, may remit a penalty or interest imposed under sections 50 to 55.

(2) A remission under this section may be total or partial, conditional or unconditional, and may be granted whether before or after or pending a suit or proceeding for the recovery of a penalty or interest and before or after a payment of the penalty or interest has been made or enforced by process or execution.

1978 c39 s61; 1983 c55 s13

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Application of Financial Administration Act

65. Subsections 19(3) and (4) of the Financial Administration Act apply, with the necessary changes, to remissions under section 64.

1978 c39 s62

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Delegation of functions

66. (1) Without affecting subsection 22(2) of the Interpretation Act, the Lieutenant-Governor in Council may assign to an officer of the Department of Finance designated by the Lieutenant-Governor in Council the performance of the duties and the exercise of the powers imposed or conferred on the minister under this Act.

(2) An officer to whom the performance of those duties or the exercise of those powers is assigned in accordance with subsection (1) shall perform the duties and may exercise the powers as if they were imposed or conferred on him or her by this Act.

(3) This section does not apply to a power conferred upon the minister by section 56, 57 or 58.

1978 c39 s63

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Offence: failure to keep books, etc.

67. A licensee is guilty of an offence who

(a) fails to make a return that the licensee is required to make under this Act or the regulations;

(b) fails to keep records in the form containing the matter prescribed by this Act or the regulations;

(c) makes a false entry or statement in an account, record, book, statement or return required to be made, kept, provided or rendered under this Act or the regulations.

1978 c39 s64

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Offence: selling gasoline unlawfully

68. (1) A person is guilty of an offence who

(a) not being a retailer, sells gasoline to a retail purchaser;

(b) being a retailer, sells gasoline to a retail purchaser elsewhere than at the outlet specified in his or her retailer licence;

(c) being a wholesaler, sells gasoline for retail sale to a person who is not a retailer; or

(d) not being a wholesaler or retailer, sells gasoline to a retailer.

(2) A person who is guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 6 months or to both a fine and imprisonment.

1978 c39 s65

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Offence: failure to keep records

69. A person who fails to preserve an account, book or record in accordance with section 37 is guilty of an offence and liable on summary conviction to a fine of not less than $100 and not more than $5,000.

1978 c39 s66

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Offence: default in collecting tax, etc.

70. (1) A person is guilty of an offence who

(a) being required by this Act or the regulations to collect the tax imposed under this Act, fails to do so; or

(b) being required by this Act or the regulations to make returns or to pay money to the minister or another person, fails to do so by the date fixed for the return or payment.

(2) A person who is guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding $5,000 and to imprisonment for a term not exceeding 6 months or to both a fine and imprisonment.

1978 c39 s67

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General offence and penalty

71. A person who contravenes this Act or the regulations is guilty of an offence and, where no other penalty is provided by this Act for the offence, is liable on summary conviction to a fine of not more than $5,000 or to imprisonment for a term of not more than 6 months or to both a fine and imprisonment.

1978 c39 s68

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Application of Criminal Code

72. Sections 736 and 737 of the Criminal Code shall not be applied in disposing of a complaint made or in imposing punishment for an offence under this Act.

1978 c39 s69; 1979 c35 s34

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Corporate liability

73. Where a corporation is guilty of an offence under this Act, and an officer, director, employee or agent of the corporation directed, authorized, assented to, or acquiesced or participated in the commission of the offence, that officer, director, employee or agent is a party to and guilty of the offence, and is liable on summary conviction to the punishment for that offence whether or not the corporation has been prosecuted or convicted.

1978 c39 s70

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No time limitation

74. A complaint may be made and all proceedings may be taken in respect of an offence under this Act or the regulations, without a limitation of time.

1978 c39 s71

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Meters required

75. (1) The minister may require a collector or another person dealing with gasoline to install at that person's expense automatic meters or other equipment approved by the minister, and that person may use the information supplied by the approved meters or equipment to establish the quantities of gasoline refined, acquired, delivered or sold.

(2) The minister shall be notified immediately by the person who operates equipment approved under subsection (1) when meter heads are changed on the equipment and that person shall at the time report the old and new meter readings to the minister.

1978 c39 s72

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Sealed equipment

76. (1) The minister may place a seal approved by the minister or a lock on a meter or mechanical injection system, drum or receptacle containing gasoline, notwithstanding where that meter, system, drum or receptacle is located.

(2) It is a breach of this Act to remove an approved seal or lock placed on a meter, mechanical injection system, drum or receptacle without first obtaining authority from the minister to do so.

1978 c39 s73; 1983 c55 s14

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Interprovincial agreements

77. The minister, with the approval of the Lieutenant-Governor in Council, may, on behalf of the province, enter into reciprocal agreements with the other provinces

(a) for the purpose of determining the amount of gasoline tax properly due to or by each province as a result of interprovincial trucking operations; and

(b) for the collection and payment of the gasoline tax, as between the province and the other provinces to those agreements,

and may enter into agreements, consistent with this Act, amending the terms and conditions of those agreements.

1978 c39 s74

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Service or return

78. Where under this Act a document or information is required to be mailed to, or served upon, or sent or given to the minister, that document or information is mailed to, served upon or sent or given to the minister if it is mailed to, served upon or sent or given to the Deputy Minister of Finance or a person designated by the minister to receive that document or information.

1978 c39 s75

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Consolidated Revenue Fund

79. All amounts received by the minister by way of tax forms part of the Consolidated Revenue Fund.

1978 c39 s76

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