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

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Revised Statutes of Newfoundland 1990


CHAPTER H-1

AN ACT RESPECTING A TAX ON EMPLOYERS FOR THE PURPOSE OF FUNDING HEALTH AND POST-SECONDARY EDUCATION

Analysis

1. Short title

2. Interpretation

3. Imposition of tax

4. Ceasing to have an establishment

5. Returns

6. Trustee

7. Tax as lien

8. Recovery of tax

9. Action on default in paying tax

10. Demand on 3rd party and effect

11. Recovery by distress upon goods, etc.

12. Powers to recover tax non-exclusive

13. Interest

14. Failure to file return

15. Additional information

16. Inspectors

17. Investigations

18. Power to search and seize

19. Production of documents

20. Copies of documents

21. Proceedings against inspectors

22. Availability of returns

23. Books and records

24. Assessment

25. Review to minister

26. Appeal to Trial Division

27. Irregularity in estimates

28. Effect of delay

29. Remission

30. Application of Financial Administration Act

31. Refund of over- payments

32. Regulations

33. Evasion of tax

34. Failure to produce records, etc.

35. Offence

36. Penalty

37. Corporate liability

38. Liability of directors

39. Non-application of Criminal Code

40. No time limitation

41. Continuing offence

42. Notices, etc.

43. Affidavit of inspector

44. Consolidated Revenue Fund

45. Computer print-outs

46. Crown bound


Short title

1. This Act may be cited as the Health and Post-Secondary Education Tax Act.

1990 c18 s1

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Interpretation

2. (1) In this Act

(a) "assessment" includes a reassessment;

(b) "business" means an undertaking or activity carried on by an employer whether or not it is carried on for gain or profit and includes the carrying on of government or of a government function;

(c) "department" means the Department of Finance;

(d) "employee" means a natural person employed in the province by an employer, including an officer of an employer, who receives remuneration in respect of the performance of the duties of the employment or the office;

(e) "employer" means a person or a government, including the government of a province, a local authority and the Government of Canada, paying remuneration in relation to a business in the province;

(f) "establishment" means a place of business and includes an office, branch, agency, factory, workshop, work site, warehouse, storage area, farm, mine, sawmill, timberland, transportation terminal, oil or gas well, refinery or generating station occupied or utilized during a year or part of a year;

(g) "inspector" means a person appointed or designated as an inspector under section 16;

(h) "local authority" means

(i) the City of Corner Brook,

(ii) the City of Mount Pearl,

(iii) the City of St. John's, and

(iv) a town, community or region established or continued under the Municipalities Act;

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

(j) "person" includes a partnership, the Crown and each local authority, and each council, board, commission or authority established under an Act of the Legislature;

(k) "remuneration" includes all payments, benefits or allowances paid or credited to or on behalf of each employee who reports for work to or who is paid by an employer through an establishment in the province and which, because of subsection 5(1) or section 6 or 7 of the Income Tax Act (Canada) are declared to be or are required to be included in income of a person for the purpose of that Act and includes

(i) salary and wages,

(ii) bonuses,

(iii) commissions or other similar amounts fixed by reference to the volume of sales made or the contracts negotiated, and

(iv) other taxable allowances or benefits paid or accrued to an employee or officer,

but does not include a pension, annuity or superannuation benefit paid by an employer to a former employee after retirement of that employee;

(l) "return" means the prescribed employer tax return or other information that the minister requires or orders;

(m) "tax" means the tax imposed under this Act and includes all penalties and interest that are, or may be, payable in respect of the tax; and

(n) "year" means a calendar year.

(2) For the purpose of this Act, and without restricting the generality of the definition of "establishment",

(a) a corporation has an establishment in the place designated in its charter or by-laws as being its head office;

(b) the use by an employer of machinery or equipment in a particular place at any time during a month constitutes an establishment of the employer in that place for that month;

(c) an employer which produced, grew, mined, fished, refined, harvested, collected, created, manufactured, fabricated, improved, packed, preserved, processed or constructed, in whole or in part, anything in the province, whether or not the employer exported that thing or removed that thing from the province before selling it, is considered to maintain an establishment at the places where the employer did any of those things; and

(d) an employer which has no fixed place of business is considered to have an establishment in the principal place in which the employer conducted business and in each place from which the employer carried on or transacted a portion of his or her business.

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Imposition of tax

3. (1) Every employer shall pay for each month after July 31, 1990 to the Crown at the time and in the manner prescribed a tax equal to 1.5% of remuneration paid to employees of that employer during that month.

(2) In calculating the tax to be paid from August 1, 1990 to December 31, 1990, the amount of $125,000 shall be deducted from the remuneration that an employer pays during that period to the employees of that employer.

(3) In calculating the tax to be paid the amount of $300,000 shall be deducted from the remuneration that an employer pays each year to the employees of that employer starting after December 31, 1990.

(4) Notwithstanding subsection (1), an employer shall pay tax upon remuneration in relation to a renewable resource industry at the rate of 0%, but where an employer is engaged in both a renewable resource industry and another business, the employer shall pay tax upon remuneration in relation to that other business at the rate set out in subsection (1) and the amount deducted under subsection (2) or (3) shall apply.

(5) The amount deducted under subsection (2) or (3) shall apply only to 1 employer in a group of associated corporations, but where all the associated corporations in the group file with the minister at the time and in the form prescribed an agreement allocating the amount referred to in subsection (2) or (3) among the employers in the group, an associated corporation may deduct the amount allocated in the agreement.

(6) The amount deducted under subsection (2) or (3) shall apply only to a partnership or 1 of the partners in a partnership, but where all the partners file with the minister at the time and in the form prescribed an agreement allocating the amount referred to in subsection (2) or (3) among the employers in the partnership, a partner or the partnership may deduct the amount allocated in the agreement.

(7) Notwithstanding subsection (1), an employer that is a local authority is not required to pay tax before January 1, 1991.

(8) Where an employer is

(a) a registered charity or registered non-profit organization for the purposes of the Income Tax Act (Canada); or

(b) considered by the minister to be a private sector non-profit organization,

the remuneration paid to employees at each establishment shall be considered to be paid by a separate person for the purposes of calculating tax.

(9) In this section

(a) "associated corporation" means a corporation which is an associated corporation as defined in section 256 of the Income Tax Act (Canada); and

(b) "renewable resource industry" means the fishing industry, forestry industry and the agricultural industry in the province.

1990 c18 s3

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Ceasing to have an establishment

4. Where an employer ceases to have an establishment in the province at any time during a month, the employer shall, with respect to that month, pay the tax in the same manner as though the month ended on the date on which the employer ceased to have an establishment in the province.

1990 c18 s4

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Returns

5. (1) The minister may require a person to file with the department a return covering information that the minister may specify and the person shall, within a reasonable time that the minister may specify, provide the return and remit to the Crown all tax payable in respect of the period specified.

(2) The minister may defer the date on which an employer or class of employers is required to file a return or pay the tax in respect of a period which the minister may specify.

1990 c18 s5

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Trustee

6. Every trustee in bankruptcy, assignee, liquidator, receiver, administrator or other person administering, managing, winding-up, controlling or otherwise dealing with property or business of an employer

(a) shall make returns and pay tax that the employer is required to make or pay; and

(b) before distributing assets under his or her control, shall obtain a clearance certificate from the inspector certifying that no tax, interest or penalties chargeable against or payable by the employer under this Act are outstanding.

1990 c18 s6

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Tax as lien

7. (1) Until the amount of the tax required to be paid under this Act is paid, it is a 1st lien in favour of the Crown on the entire assets of the estate of the employer and the lien has priority over all other claims of a person against the employer.

(2) The lien referred to in subsection (1) attaches on the date the tax was due to the Crown and continues in force until paid, or until a clearance certificate has been issued by the minister.

(3) A lien for tax in respect of real property is considered to be a 1st mortgage ranking in priority over every grant, deed, lease or other conveyance and over every judgment, mortgage or other lien or encumbrance affecting the real property affected or the title to the real property affected and the minister may discharge the lien by power of sale under the Conveyancing Act.

(4) The registration of a grant, deed, lease or other conveyance, or of a judgment, mortgage, or other lien or encumbrance, whether the registration was before or after the time the lien was attached, does not affect the priority of the lien.

(5) The minister may register the lien in the Registry of Deeds.

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Recovery of tax

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

(2) A proceeding 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.

1990 c18 s8

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Action on default in paying tax

9. (1) Where default is made in the payment of a tax or a part of the tax that is due to the Crown, the minister may issue a certificate stating the amount due and remaining unpaid, and the name of the person by whom it is payable, and may 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 the certificate were a judgment of the Trial Division for the recovery of a debt of the amount stated in the certificate against the person named in the certificate.

1990 c18 s9

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Demand on 3rd party and effect

10. (1) Where the minister has knowledge that a person is or is about to become indebted to an employer who has not paid or remitted the tax payable under this Act, the minister may demand of that person that the money otherwise payable by him or her to the employer be in whole or in part paid to the minister on account of the employer's liability 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 employer to the extent of the amount set out in the receipt.

(3) A person discharging a liability to an employer after receipt of a demand under this section is personally liable to the Crown in an amount that is the lessor of

(a) the liability discharged as between the person and the employer; and

(b) the liability of the employer for the taxes due under this Act to the Crown, but not remitted, including interest and penalties.

1990 c18 s10

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Recovery by distress upon goods, etc.

11. (1) The minister or his or her agent may levy the amount of taxes that are due, with costs, by distress

(a) of the goods and chattels of the person liable to pay the taxes over to the minister;

(b) of the goods and chattels in the possession of that person when they are found within the province; or

(c) of the goods and chattels found on the premises of that person, the property of or in the possession of another occupant of the premises that would be subject to distress for arrears of rent due to a landlord,

and the costs chargeable shall be those payable as between landlord and tenant.

(2) Where distress is made under subsection (1) for the recovery of taxes,

(a) the minister shall, by advertisement posted up in at least 3 conspicuous public places in the locality where the sale of the property distrained is to be made, give at least 10 days' notice of the time and place of the sale and of the name of the person whose property is to be sold; and

(b) at the time named in the notice, an authorized agent of the minister shall sell at public auction the property distrained or so much of the property that may be necessary to satisfy the claim of the minister for taxes, costs and expenses and for the costs and expenses incidental to the distress and sale.

(3) Where the property distrained is sold for more than the amount of taxes, costs and expenses referred to in subsection (2) and a claim for the surplus is not made by another person on the grounds that the property sold belonged to him or her or that he or she was entitled by lien or other right to the surplus, the surplus shall be paid over to the person in whose possession the property was when the distress was made and his or her receipt shall be taken for the property.

(4) Where the property distrained is sold for more than the amount of taxes, costs and expenses referred to in subsection (1) and a claim for the purpose is made by another person other than the person in whose possession the property was taken when the distress was made, then,

(a) where the claim is not contested, the surplus shall be paid to the claimant and his or her receipt shall be taken for the surplus; and

(b) where the claim is contested, the minister shall retain the surplus until the respective rights of the parties have been determined by action at law or otherwise.

(5) For the avoidance of doubt, a claim by the minister for distress under this section shall take priority over a claim for distress against goods and chattels for arrears of rent due to a landlord no matter which is 1st in time.

(6) Notwithstanding subsection (2), if the property subject to distraint is perishable in the opinion of the minister or his or her agent, it may be sold at the time and manner reasonably practical, provided prior notice is given to the employer, and neither the minister nor his or her agent shall be liable for damages for a loss occurring that would not have occurred if there had been no seizure.

1990 c18 s11

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Powers to recover tax non-exclusive

12. The powers conferred by this Act for the recovery of taxes, due under this Act, by proceedings in court and filing a certificate may be exercised separately or concurrently or cumulatively, and the liability of a person to pay taxes due or to remit taxes is not affected by the fact that a fine has been imposed on or paid by him or her in respect of an offence under this Act.

1990 c18 s12

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Interest

13. (1) Where an employer fails to remit the tax in the time and manner prescribed, interest shall be levied upon a sum due to be paid under this Act at the rate and the manner prescribed, and the regulations may provide for a minimum sum upon which the interest will be levied.

(2) Where a certificate is issued by the minister under section 7, the interest shall continue to be added to the amount of the tax payable as contained in the certificate.

1990 c18 s13

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Failure to file return

14. (1) An employer who fails to file a return or a complete return for a month within the time fixed or allowed for the filing of the return may be liable, regardless of whether the employer is prosecuted or convicted under another provision of this Act to a fine, to be assessed by the minister, not exceeding $100 for each day during which the failure continued, and an amount assessed under this subsection shall be considered to be tax payable under this Act and is in addition to another tax payable under this Act and may be collected as tax payable under this Act.

(2) An employer who fails to pay the tax payable under this Act in the amount and at the time required under this Act or the regulations may be liable, regardless of whether the employer is prosecuted or convicted under another provision of this Act or the regulations, to a fine of 10% of the amount of the tax that is unpaid at the time required, and a fine under this subsection shall be considered to be tax payable under this Act and is in addition to another tax payable under this Act and may be collected as tax payable under this Act.

(3) Neither the minister nor the inspector is bound by a return or information supplied by or on behalf of a person and the minister or the inspector may, notwithstanding a return or information supplied, or where no return has been filed, make the assessments contemplated under this Act.

1990 c18 s14

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Additional information

15. (1) The minister or the inspector may, for a purpose relating to the administration or enforcement of this Act, by registered letter or by demand served on the person, require a person, within the reasonable time that is stipulated in the letter or demand

(a) to provide information or additional information, or to file a return or supplementary return with the minister or with the inspector;

(b) to produce to the minister or to the inspector books of account, records, writing, financial statements or other documents in the possession or control of the person; or

(c) to make certain books of account, records, financial statements or other documents of an employer, or information, available to the minister or the inspector or to a person designated by the minister or inspector.

(2) A person who fails to comply with the requirement of the minister or inspector under subsection (1) may be liable, regardless of whether that person is prosecuted or convicted under another provision of this Act, to a fine to be assessed by the minister not exceeding $100 for each day during which the failure continues, and an amount assessed under this section shall be considered to be tax payable under this Act and is in addition to another tax payable under this Act and may be collected as tax payable under this Act.

1990 c18 s15

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Inspectors

16. (1) The minister may appoint or designate persons or a class of persons as inspectors for the purposes of this Act and the regulations.

(2) The minister may authorize a person employed in the department or those persons or class of persons designated under subsection (1) to perform and exercise those of the duties imposed and powers conferred by this Act upon the inspector that may, in the opinion of the minister, be conveniently performed or exercised by that person and the performance or exercise of those duties or powers by the person so authorized shall be of the same effect as if they were performed or exercised by the minister.

1990 c18 s16

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Investigations

17. For the purpose of enforcing and administering this Act and the regulations, an inspector appointed or designated under section 16 may, at reasonable times, enter into the business premises of an employer or the place where the employer's business is carried on, any property is kept, anything is done in connection with an employer or business or any books or records are, or should be, kept under this Act and may

(a) audit or examine the books of account, records, financial statements or other documents that relate or may relate to

(i) the information that is or should be in the books, records, financial statements or other documents, or

(ii) the amount of tax payable;

(b) require

(i) a person who is or may be liable to pay tax, or

(ii) in the case of a corporation liable to pay tax, the president, manager, secretary or director, agent or representative or another individual on the premises or in the place,

to give the inspector reasonable help with his or her audit or examination and to answer all questions relating to the audit or examination, orally, in writing, on oath or affirmation;

(c) for the purposes of paragraph (b), require a person mentioned in that paragraph to attend at the premises or place with the inspector; and

(d) where, during the course of an audit or examination, the minister or inspector believes on reasonable grounds that there has been a violation of this Act or the regulations, the minister or inspector may with a warrant issued under section 18 seize and take away, in the case of an inspector with the written permission of the minister, any of the books of account, records, financial statements and other documents that may be required as evidence of a violation and may retain those documents until the time they are required in a court proceeding.

1990 c18 s17

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Power to search and seize

18. (1) 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 premises or at a place where a business is carried on anything that will give evidence with respect to a contravention of this Act, may issue a warrant authorizing an inspector or other person named in the warrant to enter and search those premises or that place and to make inquiries and copies of books of account, records, financial statements and other documents that are considered necessary, subject to those conditions that may be specified in the warrant.

(2) The employer or person in charge of the premises or place referred to in this section and persons found in the premises or place shall give an inspector or other person reasonable help to enable the inspector to carry out his or her duties and functions under this section and shall provide the information that the inspector may reasonably require.

(3) Notwithstanding section 17, an inspector may exercise the power of search referred to in that section without a warrant issued under subsection (1) where the conditions for obtaining the warrant exist but because of urgent circumstances it would not be practical to obtain the warrant.

(4) For the purposes of subsection (3), 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.

1990 c18 s18

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Production of documents

19. (1) For the purposes of enforcing and administering this Act and the regulations, the minister may demand from a person, including the president, manager, secretary, director, agent or representative of a partnership or corporation

(a) a return, a supplementary return and information related to a return or supplementary return; and

(b) the production, including the production on oath or affirmation, of books, letters, accounts, invoices, financial or other statements or other documents,

which relates to a person liable to pay tax.

(2) For the purposes of administering and enforcing this Act and the regulations, the minister may demand from

(a) a person, syndicate, trust or corporation; and

(b) an agent or official of a person, syndicate, trust or corporation,

which is or may become a 3rd party, the production, including the production on oath or affirmation of books, letters, accounts, invoices, financial or other statements or other documents.

(3) The minister may specify a reasonable time within which a demand under this section is to be complied with, and a person to whom a demand is made shall comply with the demand within the specified time.

1990 c18 s19

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Copies of documents

20. Where a document is seized, inspected, examined or provided under this Act for the purposes of enforcement of this Act, the person by whom it is seized, inspected or examined or to whom it is provided or a person authorized by the minister may make 1 or more copies of it, and a document purporting to be certified by the person by whom it is seized, inspected or examined or to whom it was provided or by a person authorized by the minister to be a copy is evidence of the nature and content of the original document and has the same probative force as the original document would have if it had been proven in the ordinary way.

1990 c18 s20

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Proceedings against inspectors

21. 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 costs of suit.

1990 c18 s21

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Availability of returns

22. (1) Returns made or information received under this Act or the regulations shall not be made available to a person except persons authorized by the minister to receive them.

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

(3) The minister may

(a) communicate to a person employed by the Government of Canada;

(b) communicate to a person employed by the government of a province

information obtained under this Act or the regulations; and

(c) permit a person employed by the Government of Canada; or

(d) permit a person employed by the government of a province

to inspect or have access to a form, return, statement or other information provided under this Act or the regulations.

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

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

(b) with respect to paragraphs (b) and (d) only, 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, statements or other information under the control of the reciprocating jurisdiction.

1990 c18 s22

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Books and records

23. (1) An employer shall keep and maintain within the province and make available within the province for inspection, examination and audit under this Act books, records, financial statements and other documents relating to the operation of the employer or make those other arrangements with the inspector that may be satisfactory to the inspector to make them available for inspection, examination and audit under this Act.

(2) Where the books, records, financial statements and other documents kept by an employer are, in the opinion of the inspector, inadequate for the purpose of this Act, the inspector may, by written order, require the books and records to be kept by the employer, the nature of and the entries to be made in the books and records and the employer shall, within a reasonable time that the inspector may stipulate in the order, begin keeping the books and records as required.

(3) Where the inspector makes an order under subsection (2), the employer to which the order is directed shall comply with the order, and, where the employer fails to comply with the order, he or she is guilty of an offence.

1990 c18 s23

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Assessment

24. (1) Where

(a) an employer fails to file a return required under this Act in respect of a particular month or period;

(b) the return of an employer in respect of a particular month or period is not, in the opinion of the inspector, substantiated by books and records of the employer; or

(c) upon inspection or examination of a return or audit of books, records, financial statements and other documents, it appears to the satisfaction of the inspector that a tax payable by an employer under this Act in respect of a particular month or period has not been paid in accordance with this Act,

the inspector may make an assessment of the amount of tax payable by the employer in respect of that month or period, and the amount so assessed shall be considered to be the amount of tax payable by the employer in respect of that month or period.

(2) Where

(a) the books, records, financial statements and other documents kept by an employer are, in the opinion of the inspector, inadequate for the purpose of this Act;

(b) after being requested by the inspector to produce his or her books, records, financial statements and other documents an employer fails or refuses to produce his or her books, records, financial statements and other documents for examination for the purpose of this Act; or

(c) an employer alleges that his or her books, records, financial statements or other documents have been lost or destroyed,

the inspector may make an assessment of the tax payable by the employer in respect of a particular month or period on the basis of the inspector's valuation of the amount taxable of the employer, and the amount so assessed shall be considered to be the amount of tax payable by the employer in respect of that month or period.

(3) Where the inspector has made an assessment, the inspector is not, because of the assessment, prevented or prohibited from making a further assessment of the amount of tax payable by the employer in respect of that month or period.

(4) Where it appears from an inspection, audit or examination of the books of account, records, financial statements or other document of an employer that this Act or the regulations have not been complied with, the inspector making the inspection, audit or examination shall calculate the tax payable by the employer in a manner and form and by a procedure that the inspector considers adequate and expedient, and the inspector shall assess the amount of the tax payable by the employer.

(5) An inspector may serve personally or by registered mail a notice of an assessment on the employer and may require the employer to pay, or otherwise account, to the inspector for the assessed tax payable within 30 days after service of the notice of assessment.

(6) An employer that is served with a notice of assessment shall pay, or otherwise account for, the assessed tax payable within 30 days after the day on which the notice of assessment is served, whether or not an appeal is taken from, or an objection is made to, the assessment.

(7) The notice of assessment mentioned in subsection (5) is admissible in evidence, without proof of the office or signature of the person appearing to have signed the notice, as, in the absence of evidence to the contrary, proof that the amount stated in the notice is due.

1990 c18 s24

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Review to minister

25. (1) Where an employer disputes the amount of an assessment made under section 24, the employer may directly, or by his or her agent, within 60 days after receiving the notice of the assessment, serve notice of review upon the minister.

(2) The notice of review served under subsection (1) shall be in writing and shall set out clearly the reasons for the review and the facts relative to the review.

(3) Upon receipt of a notice served under subsection (1), the minister shall consider the matter being reviewed and may affirm, rescind or amend the assessment and shall send by registered mail to the employer or serve upon the employer notice of his or her decision.

1990 c18 s25

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Appeal to Trial Division

26. (1) Where an employer is dissatisfied with the decision of the minister given under section 25, the employer may appeal from that decision to the Trial Division.

(2) An appeal under subsection (1) shall be made by filing in the Trial Division, within 60 days after the date on which the notice of the decision reviewed was sent by registered mail or served under subsection 25(3), or a further period that a judge of the court may on application allow, a statement of claim naming the Crown as the defendant and setting out the grounds of the appeal.

(3) Upon a statement of claim being filed under subsection (2), the proceeding shall continue in the same manner as other proceedings in the Trial Division unless the court otherwise orders, and a party to the proceeding may apply to a judge of the Trial Division for directions as to the conduct of or steps to be taken in the proceeding and a judge of the Trial Division may make the order that he or she thinks advisable respecting the conduct of the proceeding and steps to be taken.

(4) Upon an appeal under this section, the court may affirm, set aside or vary the decision appealed and may, in delivering judgment disposing of the appeal, order payment or repayment of the tax, interest and penalties, or costs, by the employer or the government.

1990 c18 s26

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Irregularity in estimates

27. An assessment of tax made by the minister and confirmed or amended under section 25 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.

1990 c18 s27

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Effect of delay

28. 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 imposed under this Act that is the subject matter of an appeal,

(ii) the interest or fines provided by this Act in respect of a tax as due, or

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

(b) delays the collection of a tax,

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

1990 c18 s28

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Remission

29. (1) Notwithstanding another Act, the minister may remit a fine or interest imposed under this Act.

(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 fine or interest and before or after a payment of the fine or interest has been made or enforced by process or execution.

1990 c18 s29

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Application of Financial Administration Act

30. Subsections 19(3) and (4) of the Financial Administration Act apply, with the modifications that the circumstances require, to remissions under section 29.

1990 c18 s30

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Refund of overpayments

31. (1) Where it is disclosed that the amount of tax actually paid by an employer for a month or period exceeds the amount of tax that the employer is required to pay for that month or period, the minister shall refund the amount of the overpayment to the employer, together with interest at the prescribed rate and in the manner prescribed.

(2) Notwithstanding subsection (1), where the employer owes taxes to the Crown under this or another Act

(a) the amount of the overpayment, or as much of the overpayment that is required, is to be retained by the minister and applied to the tax owing; and

(b) the minister shall notify the employer of the set-off.

(3) Notwithstanding subsection (1), no refund is payable under this section where the overpayment is not discovered within 3 years after the day on which it is paid.

(4) A proceeding is not to be brought to recover an overpayment after the expiration of 3 years from the day on which it is paid.

(5) Interest shall not be paid under this section where the amount of the tax is less than $100.

(6) Overpayment of tax shall not be paid where the amount of the tax is less than $10.

(7) Refunds paid under this section are to be paid out of the Consolidated Revenue Fund and are to be accounted for as a reduction of revenues receivable under this Act.

1990 c18 s31

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Regulations

32. The Lieutenant-Governor in Council may make regulations

(a) prescribing forms for employer tax returns and other forms and information required under this Act;

(b) respecting information required to be disclosed in a return or other prescribed form;

(c) prescribing the records to be kept by employers;

(d) prescribing anything else that by this Act is to be prescribed or is to be determined or regulated by the regulations;

(e) prescribing the rates of interest payable or imposed under sections 13 and 31 and the time and manner in which the interest or refund is to be paid;

(f) providing for the method of refunding to an employer an overpayment of tax or portion of tax paid and prescribing the records and materials to be provided upon an application for an overpayment;

(g) respecting the retention or destruction of the books and records referred to in subsection 23(1);

(h) prescribing the doing of an act considered necessary or expedient for the collection of the tax or to prevent evasion of the tax;

(i) defining, enlarging or restricting the meaning of a word or expression used in this Act; and

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

1990 c18 s32

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Evasion of tax

33. An employer who attempts to evade payment of all or part of the tax payable by the employer under this Act by understating the amount of remuneration paid by the employer is liable, regardless of whether the employer has been prosecuted or convicted under this Act or the regulations, to a fine to be assessed by the minister not exceeding 50% of the amount of the tax evaded or sought to be evaded.

1990 c18 s33

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Failure to produce records, etc.

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

(a) refuses or wilfully neglects to produce, as required under this Act, books, records, financial statements or other documents to a person entitled under this Act to inspect, examine or audit them;

(b) refuses or wilfully neglects to answer a question put to him or her by a person entitled under this Act to do so relating to a matter concerning which he or she is required under this Act to answer;

(c) refuses or wilfully neglects to file a return or make a report required from him or her under this Act;

(d) files or makes a false or misleading return or report or gives false or misleading answers or information in a return or report under this Act, or makes a false or misleading answer to a question put to him or her by a person entitled to do so relating to a matter concerning which he or she is required under this Act to answer;

(e) destroys, alters, mutilates, secretes or disposes of books of accounts, records, financial statements or other documents of an employer to evade tax payable under this Act;

(f) fails to produce for inspection when requested to do so, books of account, records, financial statements or other documents;

(g) makes, permits, assents to, or acquiesces in, the making of false or misleading entries or omissions in the books, records or documents of an employer to evade tax under this Act; or

(h) wilfully evades or attempts to evade complying with this Act or payment of tax under this Act.

(2) A person who obstructs the minister or the inspector or another person authorized under this Act to make an inspection, examination or audit of books, records, financial statements or documents, assets or premises in making that inspection, examination or audit in the administration of this Act is guilty of an offence.

1990 c18 s34

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Offence

35. A person who disobeys, or refuses, or wilfully neglects, omits or fails, to comply with this Act or the regulations or a request or requirement made or imposed under the authority of this Act is guilty of an offence.

1990 c18 s35

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Penalty

36. (1) A person who is guilty of an offence under this Act or the regulations for which no other penalty has been prescribed is liable on summary conviction

(a) for a 1st offence to a fine of not less than $200 nor more than $10,000 or to imprisonment for a term of not more than 6 months or to both a fine and imprisonment;

(b) for a 2nd offence to a fine of not less than $500 nor more than $10,000 or to imprisonment for a term of not more than 6 months or to both a fine and imprisonment; and

(c) for a 3rd or subsequent offence to a fine of not less than $1,000 nor more than $10,000 or to imprisonment for a term of not less than 2 weeks nor more than 6 months or to both a fine and imprisonment.

(2) In addition to the penalties imposed under subsection (1) a court shall order the person found guilty to pay the tax due under this Act and in default of the payment of the tax, the court shall order that person imprisoned for a term of not less than 1 month nor more than 6 months.

1990 c18 s36

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Corporate liability

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

1990 c18 s37

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Liability of directors

38. (1) Where a corporation has failed to remit the tax or has failed to pay any interest or fine relating to the tax, each director of the corporation at the time the corporation was required to remit the taxes or to pay the interest or fine relating to the tax is jointly and individually liable, together with the corporation to pay those amounts.

(2) A director of a corporation is not liable under subsection (1) unless the minister has taken all action that the minister considers necessary to recover the debt of unpaid tax of the corporation.

(3) A director of a corporation is not liable for a failure described under subsection (1) where the director exercised the degree of care, diligence and skill to prevent the failure that a reasonably prudent person would have exercised in comparable circumstances.

(4) The minister may assess a person for an amount payable by the person under this section and, where the minister sends a notice of assessment, the sections of this Act respecting assessments, objections and appeals apply, with the modifications that the circumstances require.

(5) An assessment under subsection (4) of an amount payable by a person who is a director of a corporation shall not be made more than 4 years after the person last stopped being a director of the corporation.

(6) For the purposes of this section, the minister may apply payments made by or on behalf of the corporation under this Act to any of the liabilities described under subsection (1), including fine and interest relating to the liabilities, and to a liability for tax payable by the corporation under this Act, including any fine and interest relating to the tax.

1990 c18 s38

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Non-application of Criminal Code

39. 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.

1990 c18 s39

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No time limitation

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

1990 c18 s40

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Continuing offence

41. Where a person commits an offence under this Act and the offence continues for more than 1 day, the person offending is, for each day during which the offence continues, guilty of a further offence and may be convicted and is liable to the same punishment as for the original offence for each day during which the offence continues, and where an information relating to an alleged offence under this Act sets out that the alleged offence continued on several days or for a period of days it shall be treated as and is considered to be separate information alleging a separate offence for each of the days in the period.

1990 c18 s41

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Notices, etc.

42. (1) Where, under this Act or the regulations, a notice or document is required to be served on, delivered to or sent to an employer, it is sufficiently served, delivered or sent

(a) if it is delivered to an office of the employer in the province;

(b) if it is sent by registered mail addressed to the employer at the address in the province shown on the most recent return of the employer filed under this Act or as last known to the inspector; or

(c) where no address of the employer in the province is known to the inspector, if it is sent by registered mail addressed to the post office nearest to the place where the employer has a permanent establishment in the province.

(2) Where, under this Act or the regulations, a notice or document required to be served on, delivered to or sent to an employer is sent to the employer by registered mail, the employer shall be considered to have received the notice or document on the 2nd day after the day on which it was mailed not including a day on which the post office is closed.

1990 c18 s42

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Affidavit of inspector

43. In a prosecution or proceeding under this Act, an affidavit by the inspector as to facts necessary to establish that he or she has complied with this Act is admissible as, in the absence of evidence to the contrary, proof of the facts set out in the affidavit.

1990 c18 s43

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Consolidated Revenue Fund

44. All money received by the minister by way of tax forms part of the Consolidated Revenue Fund.

1990 c18 s44

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Computer print-outs

45. In a court proceeding taken under this Act the Crown may, in support of its case, produce copies of computer print-outs certified as correct copies by the Comptroller General or a designate of the Comptroller General.

1990 c18 s45

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Crown bound

46. This Act binds the Crown and an agent of the Crown.

1990 c18 s46

©Earl G. Tucker, Queen's Printer