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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 T-5

AN ACT RESPECTING THE TAX ON USERS OF TOBACCO

Analysis

1. Short title

2. Definitions

3. Tax levied

4. Importation of tobacco in motor vehicle

5. Importation by other means

6. Exemption from ss.4 & 5

7. Offence

8. Refund of tax

9. Rate of tax

10. Calculating tax

11. Purchase price of cigars

12. When tax payable

13. Licences

14. Sale under certificate

15. Wholesaler's licence required

16. Prohibited sales

17. Collecting and paying tax

18. Collection agreement

19. Deputy collectors

20. Liability for tax

21. Assignment of book debts

22. Application of Financial Administration Act

23. Eligibility

24. Preserving accounts

25. Dealers' records

26. Retention of invoices

27. Wholesaler's invoice

28. Proof of ownership

29. Availability of returns

30. Liability of purchaser for tax

31. Action to recover tax

32. Demand on 3rd party

33. Affidavit of official

34. Effect of fine or penalty

35. Effect of default

36. Certificate on default of tax

37. Sales in bulk

38. Estimate in default of tax

39. Appointment of inspectors

40. Powers of inspectors

41. Search for tobacco or records

42. Detention of vehicle

43. Seizure of tobacco

44. Actions against inspectors

45. Regulations

46. Prohibition against rebate

47. Penalty for failure to collect tax

48. Sale without wholesaler's licence

49. Sale without registration certificate

50. Additional penalty

51. Interest

52. Penalty recoverable

53. Notice of export

54. Amount instead of tax

55. Refund of amount

56. Review re wholesaler's licence

57. Review of penalty and interest

58. Review of estimated tax

59. Affidavit of official

60. Appeal

61. Appeal to Court of Appeal

62. Irregularity in estimates

63. Effect of delay

64. Remission

65. Application of Financial Administration Act

66. Offence: illegal sale of tobacco

67. Offence: failure to keep accounts

68. Offence: obstructing search

69. Offence: failure to collect tax

70. Offence: general

71. Penalty

72. Corporate liability

73. Liability of directors

74. Non-application of Criminal Code

75. No time limitation

76. Consolidated Revenue Fund

77. Computer print-outs


Short title

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

1986 c1 s1

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Definitions

2. In this Act

(a) "collector" means a person appointed under section 18 to collect the tax;

(b) "consumer" means a person who,

(i) in the province, purchases or receives delivery of tobacco, or

(ii) brings into the province tobacco acquired outside the province,

for that person's own use or consumption or for the use or consumption by others at that person's expense, or on behalf of, or as the agent for, a principal who wishes to acquire the tobacco for use or consumption by the principal or other person at the principal's expense;

(c) "dealer" means a person who, in the province, sells or offers to sell tobacco or keeps tobacco for sale, by wholesale or by retail;

(d) "deputy collector" means a person referred to in section 19;

(e) "inspector" means a person appointed or designated as an inspector under section 39;

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

(g) "motor vehicle" means a motor vehicle as defined in the Highway Traffic Act and includes a trailer as defined in that Act;

(h) "registration certificate" means a registration certificate issued under the Retail Sales Tax Act;

(i) "retail purchaser" means a person who by a sale acquires tobacco not for resale but as a consumer;

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

(k) "retailer" means a person who holds a valid registration certificate and sells tobacco at a retail sale;

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

(m) "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 contract by which at a price or for other consideration a person gives tobacco to another;

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

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

(p) "tobacco" means tobacco in all forms in which tobacco is consumed, including snuff;

(q) "wholesaler" means a person who sells tobacco in the province for the purpose of resale; and

(r) "wholesaler's licence" means a licence issued to a wholesaler under this Act.

1986 c1 s2

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Tax levied

3. A person who acquires tobacco at a retail sale in the province shall, in respect of the consumption or use of that tobacco, pay to the Crown at the time of the sale a tax calculated in accordance with section 9.

1986 c1 s3

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Importation of tobacco in motor vehicle

4. (1) A person who, at Port aux Basques, brings tobacco into the province in a motor vehicle shall immediately report the matter to an official at the nearest commercial vehicle weighing station and shall sign a declaration in a prescribed form stating the amount of tobacco that the person has brought into the province.

(2) A driver of a commercial vehicle who enters the province at Port aux Basques shall, at the time of reporting to the nearest commercial vehicle weighing station, sign a declaration in a prescribed form.

(3) Where a person making a report under subsection (1) has a wholesaler's licence or a registration certificate or is bringing the tobacco into the province on behalf of a person who has a wholesaler's licence or certificate and possesses an appropriate waybill or bill of lading or other appropriate documentation satisfactory to the minister, the minister may require security for the tax to be collected.

(4) A person who makes a report under subsection (1) and does not have a wholesaler's licence or a registration certificate or cannot provide proof that the tobacco is being transported on behalf of a person who has a wholesaler's licence or certificate is considered to be a consumer and shall, within 7 days of making the report, pay to the Crown a tax in the amount that would be payable if the tobacco had been purchased at a retail sale in the province.

1986 c1 s4

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Importation by other means

5. (1) A person who, at a place of entry other than Port aux Basques, brings tobacco into the province shall within 7 days report the matter in writing to the minister.

(2) Where a person making a report under subsection (1) has a wholesaler's licence or a registration certificate or is bringing the tobacco into the province on behalf of a person who has a wholesaler's licence or certificate and possesses records or documents to that effect, the minister may require security for the tax to be collected.

(3) A person who makes a report under subsection (1) and does not have a wholesaler's licence or a registration certificate or cannot provide proof that the tobacco is being brought into the province on behalf of a person who has a wholesaler's licence or certificate is considered to be a consumer and shall, within 7 days of making the report, pay to the Crown a tax in the amount that would be payable if the tobacco had been purchased at a retail sale in the province.

1986 c1 s5

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Exemption from ss.4 & 5

6. Sections 4 and 5 do not apply to a person who brings into the province or acquires in a way other than that mentioned in section 3 tobacco in less than the following quantities:

(a) 200 cigarettes;

(b) 200 grams of tobacco; or

(c) 25 cigars.

1986 c1 s6

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Offence

7. (1) A person who fails to make a report or declaration as required by section 4 or 5 or makes a false report or declaration is guilty of an offence and is liable on summary conviction to the penalties set out in section 71.

(2) Where a person who fails to make a report or declaration as required by section 4 or 5 or makes a false report or declaration is found in possession of tobacco, an inspector may seize the tobacco.

(3) Tobacco seized under subsection (2) shall be forfeited to the Crown to be disposed of as the minister directs.

1986 c1 s7

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Refund of tax

8. (1) Where

(a) tax has been paid in respect of tobacco that is exempted from it by this Act or the regulations;

(b) tax has been paid in respect of tobacco that is stolen or destroyed before being acquired by a retail purchaser;

(c) tax has been paid by a collector or deputy collector on behalf of another person and that person fails to remit the tax to the collector or deputy collector; or

(d) there has been an overpayment of tax

the minister may, on presentation of the proof that the minister may require, refund the tax or overpayment according to the method prescribed to the person who originally paid it.

(2) A refund of tax need not be paid under this section unless a claim for the refund has been made by the person entitled to the refund within 3 years from the date of the payment of the tax.

1986 c1 s8

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Rate of tax

9. (1) The tax imposed on tobacco by this Act shall be calculated as follows:

(a) in the case of cigarettes, a tax of 5.28 cents on a cigarette;

(b) in the case of tobacco, other than cigarettes and cigars, the tax shall be 2/3 of the tax imposed upon a cigarette for each gram of tobacco and the tax shall be rounded to the nearest 1/100 of a cent;

(c) in the case of cigars, a tax of 125% of the manufacturers suggested retail price on a cigar, and the tax shall be rounded to the nearest 1/100 of a cent.

(2) Notwithstanding paragraph (1)(a), cigarettes sold by retailers in and for consumption in the following areas of the province shall be subject to the tax on tobacco at the rate of 2.75 cents on a cigarette:

(a) the town of Labrador City;

(b) the town of Wabush; and

(c) the coastal area of southern Labrador extending from the border with the province of Quebec to and including the community of Red Bay.

1986 c1 s9; 1986 c19 s2; 1989 c5 s1

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Calculating tax

10. (1) The tax payable on tobacco other than cigars shall be calculated separately on every package.

(2) The tax payable on cigars shall be calculated separately on the purchase price of each cigar, whether or not it is sold in a package.

1986 c1 s10

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Purchase price of cigars

11. For the purpose of determining the amount of tax payable on a cigar, the purchase price shall be determined in the manner following:

(a) where a retail purchaser acquires the cigar from a dealer, "purchase price" means the price paid by the purchaser for the cigar, but where that price is not known to the collector, the "purchase price" means an amount equal to the sum of

(i) the price at which a cigar of that kind is sold at wholesale by the collector, and

(ii) an additional amount determined according to a prescribed method of calculation; and

(b) where the consumer acquires the cigar otherwise than from a dealer, the "purchase price" means the price paid by the consumer for the cigar, but where that price cannot be determined or no price is paid for the cigar, the "purchase price" shall be determined according to a prescribed method of calculation.

1986 c1 s11

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When tax payable

12. (1) Where a retail purchaser acquires tobacco from a dealer, the purchaser shall pay the tax to the dealer at the time the tobacco is purchased or delivery of the tobacco is received.

(2) Where tobacco is sold on credit at a retail sale, the retail purchaser is assessable for the full amount of the tax as imposed by this Act and the tax shall be imposed when the retail sale is made.

1986 c1 s12

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Licences

13. (1) The minister may issue to a person a licence, to be known as a wholesaler's licence, authorizing that person to sell tobacco for resale.

(2) A wholesaler's licence shall expire at midnight on December 31 of the calendar year in which it is issued.

(3) The minister may for cause refuse to issue or may cancel or suspend a wholesaler's licence and the minister may refuse to issue a licence to or may cancel or suspend the licence of

(a) a person who the minister is satisfied or has reason to believe has used or will use the licence to purchase tobacco for that person's consumption or use or who has otherwise failed to comply with this Act or the regulations; and

(b) a person who is under the supervision and control of a person

(i) whose licence has been cancelled or suspended under paragraph (a), or

(ii) who supervised or controlled a person whose licence has been cancelled or suspended under paragraph (a).

(4) The minister may refuse to issue a licence to a corporation or may cancel or suspend the licence of a corporation unless the corporation sends to the minister a copy of the certificate of incorporation, together with the names and addresses of the officers or directors of the corporation holding office at the time the minister makes the request for the names and address.

(5) An application for a wholesaler's licence shall be made to the minister before the date, in the form and accompanied by the fee that may be prescribed in respect of that licence.

1986 c1 s13

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Sale under certificate

14. A person shall not sell or offer to sell tobacco at a retail sale or keep tobacco for sale at a retail sale, in the province, unless that person holds a valid registration certificate and except in accordance with a condition prescribed in respect of that certificate.

1986 c1 s14

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Wholesaler's licence required

15. A person shall not sell tobacco at a sale that is not a retail sale unless that person holds a valid wholesaler's licence issued under this Act.

1986 c1 s15

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Prohibited sales

16. A wholesaler shall not sell tobacco to a person for resale at a retail sale unless that person holds a valid registration certificate.

1986 c1 s16

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Collecting and paying tax

17. The tax shall be collected, accounted for and paid to the minister by those persons, at those times and in the manner that may be required by this Act or prescribed by the regulations.

1986 c1 s17

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Collection agreement

18. (1) The minister may appoint as a collector a person who enters into an agreement with the minister respecting the collection of the tax.

(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 shall pay collectors the remuneration or allowance that may be prescribed by the regulations.

1986 c1 s18

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Deputy collectors

19. (1) A licensed wholesaler or retailer, not being a collector, who sells tobacco is a deputy collector and an agent of the Crown for the collection of the tax.

(2) A deputy collector shall levy and collect the tax and shall, and at the time and in the manner prescribed by the regulations, pay over the tax so collected to the collector or deputy collector from whom the tobacco was acquired.

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

1986 c1 s19

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Liability for tax

20. (1) A collector, deputy collector or other person who collects money by way of tax under this Act holds that money in trust for the Crown and shall pay the money over 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 paid, is a 1st lien on the entire assets of the estate of the person who collected it and has priority over other claims.

1986 c1 s20

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Assignment of book debts

21. Where a collector or deputy collector makes an assignment of book debts, whether by way of specific or general assignment, or in another manner disposes of a present or future right to collect book debts, that assignment does not include the portion of the book debts that the collector or deputy collector, as an agent of the Crown, charged the person to whom the collector or deputy collector sold tobacco as tax under this Act and an assignee or another person who collects the book debts shall be considered to be a collector or deputy collector and shall collect, remit and account under this Act for the unassigned portion of the book debts.

1986 c1 s21

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Application of Financial Administration Act

22. 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.

1986 c1 s22

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Eligibility

23. Notwithstanding anything contained in another Act, a collector or deputy collector collecting a tax or receiving a remuneration or allowance under this Act is not, by reason only of 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.

1986 c1 s23

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Preserving accounts

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

(2) For the purposes of subsection (1) a bill, receipt or invoice referred to in section 26 is a record required to be kept by this Act.

1986 c1 s24

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Dealers' records

25. (1) A dealer shall keep records of

(a) purchases, sales, consignments, imports and deliveries of grades of tobacco by that dealer in the province;

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

(c) quantities of tobacco on hand and quantities used in the province by that dealer.

(2) The minister may prescribe the form in which those records shall be kept.

1986 c1 s25

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Retention of invoices

26. A dealer shall keep on file at his or her place of business bills, receipts or invoices that relate to a purchase by that dealer of tobacco.

1986 c1 s26

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Wholesaler's invoice

27. At the time of making a sale of tobacco a wholesaler shall issue an invoice containing the information that the minister may prescribe.

1986 c1 s27

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Proof of ownership

28. (1) A person who has possession or control of more than a prescribed quantity of tobacco may be required by the minister to show proof of ownership satisfactory to the minister and proof that the tax has been paid.

(2) Where a person is unable to provide proof of ownership of tobacco as required by subsection (1), an inspector may seize the tobacco.

(3) Tobacco seized under subsection (2) shall be forfeited to the Crown to be disposed of as the minister directs unless, within 30 days after the seizure of the tobacco, the person from whom it has been seized provides the minister with satisfactory proof of ownership.

(4) Where a person, not being a licensed wholesaler or a retailer, establishes ownership of the tobacco to the satisfaction of the minister but is unable to show proof that the tax has been paid the person is considered to be a consumer who has not paid the tax and that person shall pay the tax within 7 days.

(5) Where a person who is unable to show proof that the tax has been paid possesses a wholesaler's licence or a registration certificate the minister may require security for the tax to be collected.

1986 c1 s28

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Availability of returns

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

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

(3) The minister may

(a) communicate or permit to be communicated to a person employed by the Government of Canada;

(b) communicate or permit to be communicated to a person employed by the government of a province

information obtained under this Act, 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 or statement provided under this Act.

(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 and statements under the control of the reciprocating jurisdiction.

1986 c1 s29

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Liability of purchaser for tax

30. (1) A retail purchaser, or other person on whom the tax is imposed by this Act, is and remains liable for the tax until it has been collected.

(2) Where a wholesaler or retailer sells tobacco and fails to collect the tax imposed by this Act, the wholesaler or retailer shall immediately notify the minister.

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

(4) Where a person selling tobacco receives a payment made as or in place of the tax payable under this Act, the person shall deal with the payment and account for it as tax under this Act.

(5) A person who fails to deal with and account for a payment referred to in subsection (4) in accordance with this Act and the regulations is guilty of the same offences and liable to the same penalties and fines as would apply if the payment were the tax payable under this Act, and the minister may collect and receive the payment by the same remedies and procedures as are provided by this Act or the regulations for the collection and enforcement of the tax payable under this Act.

1986 c1 s30

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Action to recover tax

31. (1) The amount of the tax that is due or that has been collected under this Act may be recovered with costs by action 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.

1986 c1 s31

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Demand on 3rd party

32. (1) Where the minister has knowledge that a person is or is about to become indebted to a retail purchaser, collector or deputy collector 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 that person to the retail purchaser, collector or deputy collector be in whole or in part paid to the minister on account of the retail purchaser's, collector's or deputy collector'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 complete discharge of the liability of that person to the retail purchaser, collector or deputy collector to the extent of the amount set out in the receipt.

(3) A person discharging a liability to a retail purchaser, collector or deputy collector after receipt of a demand under this section is personally liable to the Crown in an amount that is the lesser of

(a) the liability discharged as between that person and the retail purchaser, collector or deputy collector; and

(b) the liability of the retail purchaser, collector or deputy collector for the taxes due under this Act or that have been collected on behalf of the Crown, but not remitted, including interest and penalties.

1986 c1 s32

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Affidavit of official

33. 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 sworn or affirmed before a person authorized to take affidavits, that the officer has charge of the appropriate records and that after careful examination and search of those records the officer has been unable to find that a return or remittance required by this Act has been received in the department shall be received, in the absence of evidence to the contrary, as proof that the required return or remittance has not been received or paid.

1986 c1 s33

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Effect of fine or penalty

34. The liability of a person for the payment of a tax under this Act or the liability of a person 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.

1986 c1 s34

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Effect of default

35. Where a collector fails to make the returns prescribed or to pay over to the minister tax collected by the collector at the time prescribed, the minister may cancel the agreement with and revoke the appointment of that collector and may cancel the wholesaler's licence of the collector.

1986 c1 s35

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Certificate on default of tax

36. (1) Where default is made by a person in the payment of tax, or a part of it 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 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) Where a certificate is filed with the Registrar of the Supreme Court, it is of the same force and proceedings may be taken on it 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 it.

1986 c1 s36

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Sales in bulk

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

(a) that 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 securing their payment.

(2) Where a person purchases the tobacco of another person through a sale in bulk, the purchaser is, in addition to liability imposed by this Act for payment of the tax on the stock acquired through that sale, liable also to pay the tax due under this Act by the seller of the tobacco unless the purchaser obtains from the seller a copy of the certificate issued by the minister under subsection (1).

(3) Notwithstanding subsections (1) and (2), where a person purchases the stock of another person through a sale in bulk, the purchaser or the solicitor of the purchaser shall, upon a demand of the minister, hold back a sufficient amount of money to cover the tax that the minister considers payable by the previous owner of the stock.

(4) The holdback given under subsection (3) may be in the form of a bond or other suitable instrument as approved by the minister.

(5) The liability of a person who receives a demand from the minister under subsection (3) shall be limited to the amount of the holdback under that subsection.

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

1986 c1 s37

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Estimate in default of tax

38. (1) Where a person fails to make a return or remittance as required by this Act or the regulations, or the return or remittance of that person is not substantiated by that person's records, or where the minister reasonably believes that an amount of tax is due, the minister may make an estimate of the amount of the tax collected by the person or payable by the person for which the person has not accounted, and the amount so estimated shall be considered to be the tax collected or payable by that person.

(2) A person shall pay the amount estimated under subsection (1) to the Crown.

(3) The minister may by written notice either mailed to or served on a person or the heirs, administrators, executors or assigns of the person, or the custodian or trustee in bankruptcy of the person, require the person 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.

(4) An affidavit by an officer of the Department of Finance sworn or affirmed before a person authorized to take affidavits that a notice given under subsection (3) has been mailed or served shall be received, in the absence of evidence to the contrary, as proof that the amount stated in it is due by the person to whom the notice is mailed or on whom the notice is served.

1986 c1 s38

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Appointment of inspectors

39. The minister may appoint or designate persons as inspectors, for the purposes of this Act.

1986 c1 s39

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Powers of inspectors

40. An inspector may, at reasonable times, enter upon the business premises of a person or upon the premises where that person's tobacco or records are kept where it is reasonably necessary to determine compliance with this Act and may

(a) inspect, audit or examine books of account, records, financial statements, including balance sheets and profit and loss statements, or other documents; or

(b) ascertain the quantities of tobacco purchased, on hand, sold or used by that person, and whether the taxes collected or payable by that person have been remitted or paid to the minister

and the person occupying or in charge of the premises shall answer questions pertaining to those matters and shall produce for inspection those books of account, records, financial statements, including balance sheets and profit and loss statements, or other documents that the inspector may request.

1986 c1 s40

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Search for tobacco or records

41. (1) Where an inspector believes on reasonable grounds that a person is contravening or has contravened this Act, the inspector may with a warrant issued under subsection (2)

(a) enter and search a premises, motor vehicle, aircraft, ship or boat, cargo container or receptacle in the province for tobacco in respect of which the tax has not been paid;

(b) make those inquiries that the inspector considers are necessary;

(c) make copies or abstracts of books or records that may give evidence of a contravention of this Act; or

(d) take away those books or records for the purpose of making copies of the books, and the copies shall be returned immediately.

(2) 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 in a premises, motor vehicle, aircraft, ship or boat, cargo container or receptacle anything that there are reasonable grounds to believe will give evidence with respect to a contravention of this Act may issue a warrant authorizing an inspector named in the warrant to enter and search those premises for tobacco in respect of which the tax has not been paid and to make those inquiries and copies of books, documents, correspondence and records that are necessary, subject to the conditions that may be specified in the warrant.

(3) The owner or person in charge of the premises referred to in this section and a person found there shall give an inspector 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.

(4) Notwithstanding subsection (1), an inspector may exercise the power of search referred to in that subsection without a warrant issued under subsection (2) where the conditions for obtaining the warrant exist but by reason of urgent circumstances it would not be practical to obtain the warrant.

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

1986 c1 s41

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Detention of vehicle

42. (1) Where, upon a search of a motor vehicle, aircraft, ship or boat, cargo container or receptacle under section 41, tobacco is found in respect of which the tax has not been paid, the motor vehicle, aircraft, ship or boat, cargo container or receptacle may be detained by an inspector until the tax and a penalty imposed under this Act are paid or security satisfactory to the minister is given for the payment of them.

(2) The motor vehicle, aircraft, ship or boat, cargo container or receptacle detained under subsection (1) may be sold after the expiry of 30 days from the date of the detention to pay the tax and penalty and expenses incurred in the detention and sale, unless within that period payment is made of the taxes and penalty imposed under this Act.

1986 c1 s42

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Seizure of tobacco

43. (1) Where

(a) a person who does not hold a valid wholesaler's licence or a valid registration certificate has possession or control of tobacco in respect of which the tax has not been paid; or

(b) the tobacco referred to in paragraph (a) is transported or stored by or for that person or another person,

an inspector may seize, hold and dispose of that tobacco.

(2) Where a person transports tobacco on which the tax imposed under this Act has not been paid and is not, at the time the tobacco is being transported, in possession of a bill of lading, waybill or other document showing the origin and destination of the tobacco that person is guilty of an offence.

(3) Tobacco seized under subsection (1) shall be forfeited to the Crown to be disposed of as the minister directs unless, within 30 days after the seizure of the tobacco, the person from whom it has been seized

(a) pays the tax imposed under this Act; or

(b) provides security to the minister for the collection of the tax imposed by this Act in respect of the consumption of the tobacco and has applied for and been issued a wholesaler's licence.

(4) Where, within 30 days after the seizure of tobacco under subsection (1), the person from whom it has been seized

(a) pays the tax imposed under this Act; or

(b) provides security to the minister and applies for and is issued a wholesaler's licence or a registration certificate,

the tobacco so seized shall be returned to that person upon payment by that person of costs incurred by the minister in seizing, impounding and holding the tobacco.

(5) Where, under subsection (3), a sale of tobacco is directed by the minister, the proceeds of that sale remaining after payment of costs incurred by the minister in seizing, impounding, holding and disposing of the tobacco shall be paid into the Consolidated Revenue Fund.

(6) Where a person pays the tax imposed under this Act on tobacco seized under subsection (1), the person shall not receive a refund of the tax paid where the person exports the tobacco from the province after it has been returned to the person.

1986 c1 s43

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Actions against inspectors

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

1986 c1 s44

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Regulations

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

(a) prescribing the methods of collecting the tax and other conditions or requirements affecting the collection;

(b) prescribing the manner in and times at which the tax collected by collectors and deputy collectors and collected or payable by other persons shall be paid over to the minister;

(c) providing for the division of collectors into classes and prescribing what classes of collectors are to receive remuneration or allowance and what classes are not to receive remuneration or allowance;

(d) prescribing the remuneration or allowance to be paid to collectors and the time and manner of payment;

(e) providing for the division of wholesalers into classes and prescribing that persons seeking licences as wholesalers in a class must as a condition of their receiving those licences accept appointments as collectors;

(f) requiring surety bonds by collectors and other persons who collect taxes and prescribing the form and amount of the bonds;

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

(h) prescribing the returns and statements to be made or provided by dealers and other persons, the information to be given in the returns, statements, accounts, books and records to be made, provided, supplied, given or kept;

(i) prescribing that a statement, return, record or account to be made, provided or kept under this Act or the regulations may be made, provided or kept in conjunction with and as part of a statement, return, record or account provided, kept or made under the Retail Sales Tax Act, and regulations made under that Act;

(j) prescribing the form in and the date before which applications for wholesaler's licences may be made, the conditions which may be attached to those licences and the fees payable for those licences;

(k) exempting tobacco of a prescribed quantity brought into the province by a tourist from this Act and prescribing the quantity to and the conditions under which the exemption will apply;

(l) exempting from tax tobacco purchased at retail or used for a purpose under circumstances or by a class of persons referred to in the regulations;

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

(n) providing for the payment to collectors of money paid as tax in the case of money paid on behalf of a deputy collector, dealer or taxpayer who has defaulted in paying the tax, and prescribing the conditions to be attached to those payments;

(o) prescribing the method of calculation for determining the purchase price of cigars in cases where that method is required by section 11;

(p) prescribing the duties of inspectors, officers and other persons acting under this Act;

(q) 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 the inquiry is to have the powers that are or may be conferred upon a commissioner under the Public Inquiries Act, including the power to take evidence under oath or affirmation;

(r) prescribing the information to be included in invoices issued by wholesalers;

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

(t) defining a word or expression that is not already defined in this Act; and

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

(2) Regulations made under paragraph (1)(t) may be made with retroactive effect.

1986 c1 s45; 1989 c5 s2

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Prohibition against rebate

46. A dealer shall not advertise or hold out or state to the public or to a retail purchaser, directly or indirectly, that the tax or a part of the tax will be assumed or absorbed by the dealer.

1986 c1 s46

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Penalty for failure to collect tax

47. (1) Where a person who is required by this Act to collect a tax fails to do so, that person is, notwithstanding another 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 minister because of the failure of that person to collect the tax; and

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

(2) 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 purposes of this section, be considered to be the actual loss so sustained.

(3) The minister may, by written notice either mailed to or served on the person or the person's heirs, administrators, executors or assigns, or the person's custodian or trustee in bankruptcy, require the person to pay to the Crown or otherwise account for the penalty imposed under subsection (1) within 30 days after the date on which the notice is mailed or served.

1986 c1 s47

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Sale without wholesaler's licence

48. (1) Where a person sells tobacco in the province for resale to a consumer other than by authority of a valid wholesaler's licence, that person is, notwithstanding another 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 tax that would have been paid on the tobacco so sold by that person if that tobacco had been purchased by a consumer; and

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

(2) Where a person sells tobacco in the province for resale to a consumer without holding a valid wholesaler's licence, that person is guilty of an offence and is liable on summary conviction to a fine of not less than the amount of tax that would be payable on the tobacco so sold by that person if that tobacco had been purchased by a consumer and not more than an amount equal to twice the amount of the tax so ascertained or to imprisonment for a term not exceeding 6 months or to both a fine and imprisonment.

(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 purposes of this section, be considered to be the actual loss so sustained.

1986 c1 s48

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Sale without registration certificate

49. (1) Where a person sells tobacco in the province to a consumer other than by authority of a registration certificate, that person is, notwithstanding another penalty imposed under the Retail Sales Tax 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 tax imposed on the tobacco under this Act; and

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

(2) In a case referred to in subsection (1), the minister may make an estimate of the tax owing and the amount so estimated shall, for the purposes of this section, be considered to be the amount of tax owing.

1986 c1 s49

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Additional penalty

50. The minister may, notwithstanding another penalty imposed by this Act and without the interposition of a court,

(a) impose a penalty of 10% of the amount of the tax collected or payable under this Act upon a person who fails to pay to the minister the tax collected or payable by that person, in the manner and within the time provided by this Act or the regulations; and

(b) impose a penalty of not less than $25 nor more than $200 upon a person who fails to make a return required by this Act or the regulations in the manner and within the time provided for it.

1986 c1 s50

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Interest

51. (1) The minister shall levy interest upon a tax collected or payable under this Act at the rate of 1 1/2% a month from the date that the tax should have been paid 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) Interest shall not be levied under subsection (1) for the month in which the Crown receives payment of the tax.

(4) Where a certificate is issued by the minister under section 36, the interest shall continue to be added to the amount of the tax payable as contained in the certificate.

(5) The expression "tax collected or payable" in subsection (1) includes an amount previously added to it by way of penalty.

(6) In this section "month" includes part of a month.

1986 c1 s51

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Penalty recoverable

52. A penalty or interest imposed under section 47, 48, 49, 50 or 51,

(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 penalty and has priority over other claims of a person.

1986 c1 s52

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Notice of export

53. (1) A wholesaler who intends to export tobacco from the province shall provide written notice of the intention to do so to the minister not later than 10 days before the shipment is to leave the province.

(2) A person who exports tobacco from the province shall compile and retain records satisfactory to the minister to prove that the tobacco has been exported.

1986 c1 s53

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Amount instead of tax

54. (1) Where a person purchases tobacco for export from the province, that person shall pay to the dealer who sold the tobacco and the dealer who sold the tobacco shall collect and pay to the minister an amount equal to the tax that would be payable if the tobacco were purchased at a retail sale in the province, unless the minister otherwise directs.

(2) Where a dealer sells tobacco for export from the province and fails to collect from the purchaser an amount equal to the tax that would be payable if the tobacco were not exported from the province, the dealer shall pay to the minister an amount equal to the tax that would be payable if the tobacco were purchased at a retail sale in the province, unless the minister otherwise directs.

(3) A dealer shall remit an amount collected under subsection (1) or required to be paid under subsection (2) to the minister in the same manner and at the same time as tax is required to be remitted to the minister under this Act.

1986 c1 s54

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Refund of amount

55. The minister may, on application, refund an amount collected under section 54 provided that

(a) the notice required by section 53 has been given;

(b) an application for a refund is delivered to the minister not more than 3 years after the date on which the amount was remitted to the minister;

(c) invoices verifying the purchase of the tobacco and proof of payment of the amount of refund claimed are provided to the minister;

(d) documentary evidence satisfactory to the minister that the tobacco exported from the province was delivered in another jurisdiction is provided to the minister; and

(e) certification by the jurisdiction to which the tobacco is imported from the province for consumption confirming that tax has been paid to that jurisdiction on the tobacco with respect to which the refund is being claimed or that the tobacco is exempt from tax is provided to the minister.

1986 c1 s55

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Review re wholesaler's licence

56. (1) A person who is dissatisfied by the minister's refusal to issue a wholesaler's licence under section 13 or by the cancellation or suspension of a wholesaler's licence may apply to the minister for a review.

(2) The minister, after considering an application made under subsection (1), shall confirm or alter the decision to refuse, cancel or suspend the licence and shall notify the applicant accordingly.

1986 c1 s56

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Review of penalty and interest

57. (1) A person who is dissatisfied by a penalty or interest imposed under sections 47 to 51 may, within 30 days of the date on which the penalty or interest is imposed, apply to the minister for a review of the amount fixed.

(2) The minister, after considering an application made under subsection (1), shall confirm or amend the amount imposed by way of penalty or interest or, where the minister is satisfied that no loss has been sustained by the Crown, revoke the imposition of the penalty or interest and notify the person accordingly.

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

1986 c1 s57

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Review of estimated tax

58. (1) A person who is dissatisfied with the amount contained in the estimate of tax by the minister under section 38 may, within 30 days of receiving the written notice under that section, apply to the minister for a review.

(2) The minister, after considering an application made under subsection (1), shall confirm, amend or revoke the estimate and notify the person accordingly.

1986 c1 s58

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Affidavit of official

59. An affidavit by an officer of the Department of Finance sworn or affirmed before a person authorized to take affidavits that a notice given under section 56, 57 or 58 has been mailed or served shall be received, in the absence of evidence to the contrary, as proof that the amount stated in it is due by the person to whom the notice was mailed or on whom it was served.

1986 c1 s59

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Appeal

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

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

(b) the person feels aggrieved by a penalty or interest, as confirmed or amended by the minister under section 57; or

(c) the person disputes the amount of estimated tax confirmed or amended by the minister under section 58, or the liability for the tax.

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

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

(4) The appellant shall, within 14 days after service of a copy of the notice of appeal on the minister 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 on the minister a written notice of that day.

(5) The appeal and the evidence brought forward by the appellant and the Crown shall be heard by the judge in a summary manner and the judge shall 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 penalty or interest as confirmed or amended by the minister, or

(iii) the estimate of tax as confirmed or amended by the minister; or

(b) by making another decision that the judge considers appropriate in the circumstances.

(6) 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 the judge may make an order respecting costs in favour of or against the Crown and may fix the amount of them.

1986 c1 s60; 1986 c42 Sch B

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Appeal to Court of Appeal

61. 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 a hearing before the judge under section 60.

1986 c1 s61; 1986 c42 Sch B

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Irregularity in estimates

62. An estimate of tax made by the minister and confirmed or amended under section 58 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.

1986 c1 s62

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Effect of delay

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

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

(iii) a 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 it the excess of tax paid and of an additional penalty or interest paid on the tax.

1986 c1 s63

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Remission

64. (1) Notwithstanding another Act, the minister may remit a penalty or interest imposed under sections 47 to 51.

(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 it has been made or enforced by process or execution.

1986 c1 s64

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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.

1986 c1 s65; 1990 c62 s24

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Offence: illegal sale of tobacco

66. A person is guilty of an offence who

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

(b) being a retailer, sells tobacco to a retail purchaser otherwise than in accordance with a condition provided in respect of a registration certificate;

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

(d) not having a valid wholesaler's licence, sells tobacco to a retailer.

1986 c1 s66

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Offence: failure to keep accounts

67. A person who fails to preserve an account, a book or record in accordance with section 24 is guilty of an offence and liable on summary conviction to a fine of not less than $100 and not more than $5,000.

1986 c1 s67

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Offence: obstructing search

68. A person is guilty of an offence who

(a) interferes with or hinders a person conducting an inspection, examination or search under this Act;

(b) refuses to answer questions put to that person in accordance with section 40 or 41; or

(c) fails to produce for inspection when requested to do so books of account, records, financial statements including balance sheets and profit and loss statements, or other documents, or tobacco that the person has possession or control of.

1986 c1 s68

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Offence: failure to collect tax

69. A person is guilty of an offence who

(a) being required by this Act or the regulations to collect the tax, 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 to another person, fails to do so by the date fixed for doing so.

1986 c1 s69

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Offence: general

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

(a) contravenes this Act or the regulations;

(b) fails otherwise to comply with a requirement or obligation imposed on that person under this Act or the regulations; or

(c) makes a false statement in a form or return completed or made under this Act or the regulations,

in circumstances in which that contravention, failure or false statement is not an offence under another provision of this Act.

(2) Every contravention, failure or false statement described in subsection (1) that relates to a separate sale or transaction constitutes a separate offence.

1986 c1 s70

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Penalty

71. (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 imprisonment for a term of not less than 2 weeks nor more than 6 months.

(2) In addition to the penalties imposed under subsection (1) a court shall order the person found guilty of an offence 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.

(3) A period of imprisonment imposed under subsection (2) shall be served consecutively to a term imposed under subsection (1).

1986 c1 s71

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Corporate liability

72. 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.

1986 c1 s72

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Liability of directors

73. (1) In addition to the penalties imposed under section 71, where a corporation is guilty of an offence for failing to pay the tax due by the corporation under this Act or the regulations and an officer, director or agent of that corporation has been convicted of directing, authorizing or participating in the commission of that offence, the court shall order that director or agent to pay the tax for which the corporation has been convicted of failing to pay and in default of the payment of that tax, the court shall order that officer, director or agent imprisoned for a term of not less than 1 month nor more than 6 months.

(2) In a prosecution under this section, an officer, director or agent of a corporation is not liable to pay the tax for which the corporation has been convicted of failing to pay under subsection (1) where that officer, director or agent shows that the degree of care, diligence and skill to prevent the failure that a reasonably prudent person would have exercised in comparable circumstances was exercised.

(3) Notwithstanding section 75, an action or proceedings to recover an amount payable by an officer, director or agent of a corporation under this section shall not be started more than 4 years after that officer, director or agent last stopped being an officer, director or agent of that corporation.

1986 c1 s73

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Non-application of Criminal Code

74. 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.

1986 c1 s74

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No time limitation

75. 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.

1986 c1 s75

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Consolidated Revenue Fund

76. Amounts received by the minister by way of tax form part of the Consolidated Revenue Fund.

1986 c1 s76

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Computer print-outs

77. 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 of Finance or a designate of the comptroller general.

1986 c1 s77

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