RSNL1990 CHAPTER M - 16 - MINING AND MINERAL RIGHTS TAX ACT - Point in Time

Short title

1. This Act may be cited as the Mining and Mineral Rights Tax Act.

1975 No68 s1

Definitions

2. In this Act

(a) "arm's length" has the same meaning as under section 251 of the Income Tax Act (Canada ) ;

(b) "assessment" means an assessment, a reassessment, an amended assessment or an additional assessment of tax under this Act;

(c) "commercial production" means a point when 60% of the stated processing capacity is achieved for 30 days or as the minister may determine;

(c.1) "contractor" means a person having a right to carry out a mining operation for the delivery of minerals to the lessor or for the sale of those minerals for valuable consideration from the lands on or in which that right exists;

(c.2) "exploration expenditure" means an expenditure relating to prospecting, sampling, mapping, diamond drilling and other work involved in searching for ore in the province;

(c.3) "fair market value" means the value of a transaction determined by bargaining in good faith between informed persons whether or not there is an actual transaction;

(d) "fiscal year" means the taxation year chosen by or applicable to the taxpayer under the Income Tax Act (Canada );

(e) "gross income" means the total income derived by an operator or a contractor from the sale of minerals consequent upon mining operations in a financial year, and, if those minerals are processed before the sale, includes the income from processing;

(e.1) "inspector" means an inspector appointed under section 3;

(e.2) "joint venture" means a business undertaking entered into by 2 or more persons which terminates upon completion of that undertaking or where the control and contribution of resources are shared;

(f) "mineral" means a naturally occurring inorganic substance, including coal, but does not include petroleum as defined in the Petroleum and Natural Gas Act;

(g) "mining operations" means the extraction or production within the province of minerals up to and including primary crushing and includes the transportation, handling, storing, distribution and sale of those minerals, but does not include processing;

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

(i) "net income" means the gross income less those amounts permitted to be deducted from the gross income by section 5;

(j) "operator" means a person who

(i) has the right to extract minerals, and

(ii) carries out mining operations on or under lands within the province;

(k) "person" in addition to the ordinary meaning ascribed to the word and the meaning conferred by the Interpretation Act , includes a partnership, limited partnership, association, syndicate, joint venture or co-venture of any kind;

(l) "pre-production expenditure" means costs incurred in order to bring a mine into production, less revenue earned prior to coming into production;

(l.1) "processing" means the processing of minerals extracted from land on or under which there are mining operations within the province and includes the concentrating and milling of minerals;

(l.2) "processing assets" means processing plants, machinery, equipment and structures acquired for the purpose of processing mineral substances, but does not include smelting assets;

(l.3) "smelting" means a metallurgical operation in which metal is separated from those impurities with which it may be chemically combined or physically mixed;

(l.4) "smelting assets" means assets used in the process of smelting metallic products and includes necessary plant, machinery, equipment and structures;

(m) "tax" means taxes imposed by this Act and includes all penalties, costs and interest that may be added to the taxes so imposed;

(n) "taxable income" means the net income less those payments permitted to be deducted from the net income by section 6; and

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

1975 No68 s2; 1992 c16 s24; 1994 c26 s1

Inspector

3. (1) The minister may appoint or designate a person or a class of persons as an inspector for the purposes of this Act.

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

1994 c26 s2

Mining operations tax

4. (1) An operator and a contractor is liable for and shall pay to the minister in the manner and at the time set out in this Act an annual tax of 15% of the taxable income derived by the operator or the contractor from mining operations within every mine within the province during each financial year.

(2) The Lieutenant-Governor in Council may by order declare with respect to a taxpayer that the tax payable by the operator or contractor under subsection (1) shall be based on the taxable income derived by the operator or contractor from mining operations within individual mines or groups of mines as may be prescribed in the order.

(3) For the purposes of subsection (2), "mine" means a work or undertaking in which mining operations are conducted and includes a quarry.

1975 No68 s5

Deduction

4.1 (1) A person may, in the current taxation year, deduct from the amount payable under section 4, the amount payable to the province under the Income Tax Act in respect of mining income in the province for that year.

(2) Subsection (1) shall apply only for each year of the 1st 10 years after the achievement of commercial production in the mine from which the mining income is derived.

(3) Notwithstanding paragraph 2(c), the minister may, where he or she considers it necessary, determine that a mine is not in commercial production in a year.

1994 c26 s3

Net income

5. (1) The net income of a taxpayer shall be ascertained by deducting from the gross income of the taxpayer

(a) all expenses and outlays reasonably incurred in mining operations and in processing;

(b) depreciation expenses that may be prescribed by regulation respecting vehicles, machinery, plant, equipment, buildings and other assets of a capital nature used in mining operations and in processing and the Lieutenant-Governor in Council may prescribe different rates and methods of depreciation for different kinds of capital assets;

(i) unamortized pre-production expenditures divided by the estimated remaining life of the mining operation, and

(ii) on-site and off-site exploration expenditures exclusively incurred by the taxpayer anywhere in the province during that or a previous financial year and those expenditures may be carried forward on 1 occasion and applied against future revenues within a period not exceeding 5 years from the time when those expenditures occurred;

(d) all money paid to the Crown during the financial year by way of rentals, royalties, charges and other payments for the right to engage in the mining operations which generates all or part of the gross income, but not a payment by way of taxation;

(e) reserves for doubtful debts that the minister in his or her absolute discretion permits for the mining operations during the financial year;

(f) those amounts respecting those items that are prescribed by regulation; and

(g) an amount by way of return on capital directly and necessarily employed by the taxpayer in processing equal to

(i) with respect to processing other than smelting, 8% of the original cost of the depreciable assets, exclusive of interest charges, including machinery, equipment, plant, buildings, works and improvements used by the taxpayer, and

(ii) with respect to smelting, 15% of the original cost of the depreciable assets, exclusive of interest charges, including machinery, equipment, plant, buildings, works and improvements used by the taxpayer,

but the amount deducted under this paragraph shall not exceed 65% of the portion remaining after deducting from the gross income the amounts specified in paragraphs (a) to (f).

(2) Notwithstanding paragraph (1)(g), if 15% of the taxable income calculated under section 6 exceeds the amount of the processing and smelting allowance calculated under paragraph (1)(g) then that 15% of the taxable income shall be the amount deductible under paragraph (1)(g).

(3) For the purpose of calculating the net income under paragraph (1)(b),

(a) where the vehicles, machinery, plant, equipment and buildings have been disposed of in a financial year, the proceeds from the disposal shall be applied to reduce the cost or value of additions to them in that year;

(b) where those proceeds exceed the cost of the additions, the excess shall be applied to reduce the balance remaining to be depreciated of those assets acquired in previous financial years; and

(c) where no balance remains to be depreciated, the excess shall be applied to reduce deductions otherwise allowable under subsection (1).

(4) A deduction shall not be made from gross income under subsection (1) with respect of those disbursements, expenditures or payments that are prescribed by regulation.

1994 c26 s4

Taxable income

6. For the purposes of section 4, the taxable income derived from mining operations by an operator and by a contractor is the net income less either

(a) all money paid during the financial year, by way of rental, royalty or similar payment to a person, other than to the Crown, for the grant of the right to engage in mining operations; or

(b) 20% of the net income,

whichever is the greater.

1975 No68 s7; 1994 c26 s5

Application of this part to special statutes

7. The tax imposed by this Part of this Act applies to every person carrying out mining operations as an operator or contractor in the province, but where a tax or royalty is payable to the Crown for the right to engage in mining operations or in respect of income from those mining operations

(a) by a person under a statute of the province relating specifically to that person;

(b) by a person under an agreement or lease ratified or confirmed by the statute; or

(c) by an operator or contractor who has assumed the obligation to pay that tax or royalty under an agreement entered into with such a person,

the tax or royalty imposed by the statute, agreement or lease or assumed shall be payable instead of the tax imposed by this Part.

1975 No68 s8

Tax on right to mine

8. (1) An operator and a contractor is liable for and shall pay to the minister in the manner and at the time set out in this Act an annual tax of 20% of the amount by which 20% of the net income of the operator or contractor exceeds the total of all money paid by the operator or contractor during the financial year by way of rental, royalty or similar payment to a person, other than the Crown, for the grant of the right to engage in mining operations.

(2) Section 7 applies to the tax imposed by this section upon operators and contractors.

1975 No68 s9; 1994 c26 s6

Tax on rentals, etc.

9. (1) A person who receives from

(a) an operator, contractor or other person during a financial year money by way of rental, royalty or similar payment for the grant to the operator, contractor or other person of the right to engage in mining operations; or

(b) the Minister of Mines and Energy during a financial year money by way of payment to that person, as owner of an undeveloped mineral area, under section 7 of theUndeveloped Mineral Areas Act,

is liable for and shall pay to the minister in the manner and at the time set out in this Act an annual tax of 20% of the net revenue received in consideration of the grant of the right during that financial year.

(2) For the purposes of subsection (1), "net revenue" means the total sum received from the operator, contractor, person or the Minister of Mines and Energy during the financial year less

(a) legal expenses incurred by the taxpayer in the collection of rental, royalty or similar payment from the operator or contractor;

(b) an amount, that the Lieutenant-Governor in Council may allow for costs and outlays incurred by the taxpayer during the financial year within the area of land in or upon which the taxpayer has the right to engage in mining operations or other areas of land that may be prescribed by regulation; and

(c) all money paid during the financial year, by way of rental, royalty or similar payment to a person, other than to the Crown, for the grant of the right to engage in mining operations.

(3) A person is liable to pay the tax under this section notwithstanding that the payment received for the grant of the right to engage in mining operations is a share of the profits derived from mining operations or other enterprise carried out by another person either solely or in association with the person receiving the payment.

(4) Where by an agreement, scheme or device a payment for the grant of the right to engage in mining operations does not, in the opinion of the minister, represent the true value of that right, or the payment is made as consideration for matters additional to the grant of that right, the minister may determine the true value of the right, and the value determined shall be applied for the purposes of assessment of the tax under this section.

(5) A determination made by the minister under subsection (4) is subject to review by the board upon an appeal taken under section 22, with power to the board, or to the Trial Division upon an appeal taken from a decision of the board under section 23, to make a determination of true value for the purposes of payment of the tax.

1975 No68 s10; 1975-76 No46 s3; 1981 c20 s1
1983 c23 s14; 1994 c26 s7

Deduction of tax at source

10. (1) An operator, contractor or other person or trustee, agent or other person acting on behalf of that contractor, operator or person who makes payment to a taxpayer of the rental, royalty or similar payment for which the taxpayer is liable to taxation under section 9 shall deduct from the total of each payment or instalment 20% of the sum paid on account of the tax due by the taxpayer.

(2) Notwithstanding anything contained in the Undeveloped Mineral Areas Act, the Minister of Mines and Energy shall deduct from each payment made to an owner under section 7 of that Act 20% of the sum paid on account of the tax due by the taxpayer.

(3) The total of the sum deducted from a rental, royalty or similar payment by an operator, contractor or person, or a trustee, agent or other person acting for that operator, contractor or person under subsection (1) shall be remitted to the minister by the operator, contractor, trustee, agent or other person charged with the responsibility of making the payment at the same time as the payment or instalment is paid to the taxpayer.

(4) Where a remittance is made to the minister under subsection (3), the operator, contractor or other person who makes the remittance, or in respect of whom the remittance is made is relieved of all liability at law for the obligation to pay the taxpayer to the extent of the amount of the remittance, notwithstanding the terms of a statute, agreement, lease, contract or other document which binds the operator, contractor or other person to make the payment to the taxpayer.

(5) An operator, contractor or person, or a trustee, agent or other person acting on behalf of that operator, contractor or person who fails to make the deduction required from the rental, royalty or similar payment required by subsection (1) or who fails to remit the sum deducted to the minister as required by subsection (3) is guilty of an offence under this Act.

(6) Without limiting the liability of the taxpayer for payment of the tax due under section 9, a person who is convicted of an offence under subsection (5) of this section is personally liable to the minister for the total sums which were required to be deducted and remitted to the minister under this section, and may be recovered by the minister as a debt due to the Crown by action in a court.

1975 No68 s11; 1994 c26 s8

Construction to be placed on prior statutes, contracts, etc.

11. Nothing in an Act of the province, or in a grant, deed, licence, contract, agreement or other document, whether or not that grant, deed, licence, contract, agreement or other document has received ratification by the Legislature, passed, given, made or entered into before January 1, 1975, shall be construed so as

(a) to defeat the liability of a taxpayer to pay the tax required to be paid by section 9; or

(b) to enable a person who is liable for and required to pay a tax under section 9, to require the operator, contractor or other person from whom that person receives money by way of rental, royalty or similar payment for the grant of the right to engage in mining operations,

(i) to pay the tax in its place, or

(ii) to indemnify that person against the tax; or

and where in the Act, grant, deed, licence, contract, agreement or other document is in conflict with this Act, the latter shall prevail.

1975 No68 s12; 1994 c26 s9

Duty to give notice

12. (1) An operator and a contractor who

(a) engages in mining operations; or

(b) is obliged to pay money to a person by way of rental, royalty or similar payment for the right to engage in mining operations

shall immediately notify the minister.

(2) A person who fails to give the notification required under subsection (1) is guilty of an offence and is liable on summary conviction to a fine of not less than $200 and not more than $10,000 or to imprisonment for a term of not more than 6 months or to both a fine and imprisonment.

1975 No68 s13; 1994 c26 s10

Return

13. (1) Every taxpayer shall make a return and pay tax in the form prescribed by the minister and in the time and manner that is prescribed by the regulations.

(2) The return referred to in subsection (1) shall be signed by the person required to complete and deliver it, or by the agent, trustee or representative of that person, and in the case of a corporation, association or a partnership, the return shall be signed by an officer or member of the corporation, association or partnership having personal knowledge of the facts and disclosures made in the return.

(3) The inspector may by written notice require a person who has submitted a return to supply further details and more explicit particulars, or to produce documentary evidence to support facts and disclosures made in the return, and upon receipt of that notice, the person to whom it is delivered shall comply with the requirements contained in that notice within 14 days after dispatch of it.

(4) A person who fails to submit a return containing the particulars required under this Act within the time provided in subsection (1), or who fails to comply with the requirements contained in a notice given under subsection (3), or who knowingly provides false or misleading information either on the return, or to the inspector following the notice by him or her, is guilty of an offence under this Act.

1975 No68 s14; 1993 c16 s25; 1994 c26 s11
1997 c13 s45

Secrecy

14. Subject to an Act of the province respecting the compilation of data and completion of statistics, or an agreement made with the Government of Canada or the provinces of Canada respecting exchange of confidential information under an Act, information given on returns or to the inspector under this Act is available only to persons authorized by the minister, and that authorization shall be given solely for the purposes of this Act or an Act of the province which provides for the imposition of a tax or the administration of legislation relating to minerals.

1975 No68 s15; 1977 c32 s1; 1994 c26 s12

Interest

15. Where a person does not pay or pay over tax in the time and manner required, interest shall be levied upon the tax at the rate and in the manner that is prescribed by the regulations and the regulations may provide for a minimum amount upon which interest shall be levied.

1992 c16 s26

Tax estimate and remission

16. (1) When a person fails to make a return or pay or pay over tax as required under this Act, or the returns of the person are not substantiated by his or her records, the minister may estimate the amount of tax payable by that person for which he or she has not accounted, and that amount shall be considered to be the tax payable by him or her.

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

(3) In addition to interest levied under section 15, the minister may impose a penalty of 10% on tax not paid or paid over as required.

(4) The minister may remit a penalty or interest imposed under sections 15 and 16.

(5) 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.

1992 c16 s27

Powers of assessor

17. (1) An inspector may, so long as it is reasonably necessary to determine compliance with this Act, at reasonable times, enter upon the business premises of a person or upon the property of a taxpayer or a person referred to in subsection 20(3) and may

(a) examine returns required to be made under section 13;

(b) determine that the returns referred to in paragraph (a) are correct;

(c) inspect, audit, examine and take copies of bank statements, books of account, records, vouchers, financial statements including balance sheets and profit and loss statements, or other documents;

(d) calculate the amount of tax payable by the taxpayer; and

(e) examine persons under oath or affirmation, at times and places designated by the inspector, on all matters within the powers and duties of the inspector

and the taxpayer or other person in charge of that building, place of business, or property shall answer all questions pertaining to those matters and shall produce for inspection those bank statements, books of account, records, vouchers, financial statements, balance sheets, profit and loss statements or other documents that the inspector may request.

(2) An inspector, or other person authorized by the minister under section 3, has all the powers of a commissioner under the Public Inquiries Act .

1994 c26 s13

Actions against inspectors

17.1 Where a court, before which a proceeding is taken against an inspector, or other person authorized by the minister under section 3, for anything done by him or her under section 17 is satisfied that there was probable cause for the action of the inspector or other person and that the action was not malicious, a verdict or judgment shall not be given against the inspector or other person for more than $0.05 damages or for costs of suit.

1994 c26 s13

Refunds

18. (1) Where a person pays or pays over to the minister an amount which exceeds the amount of tax required to be paid, the minister may refund to that person the amount of the overpayment, together with interest, at the rate and in the manner that is prescribed by the regulations.

(2) Notwithstanding subsection (1), where a person owes money to the Crown under this or another Act, the minister shall deduct the amount owing from the refund and shall inform the person of the set-off.

(3) Notwithstanding subsection (1), the minister shall not make a payment under this section unless the overpayment is disclosed to or by the minister within 3 years from the date on which that overpayment was made.

(4) Notwithstanding subsection (1), refund and interest payments under this section may be restricted or denied as prescribed by the regulations.

(5) Money paid under this section shall be paid out of the Consolidated Revenue Fund and shall be accounted for as a reduction of revenues under this Act.

1992 c16 s28

Payment by taxpayer of deficiency

19. Notwithstanding a prior assessment, or where an assessment has not been made, a taxpayer continues to be liable for tax and to be assessed for tax, and the minister may at any time assess a taxpayer for tax, interest and penalties and may, at any time, if the taxpayer has made a misrepresentation or committed a fraud in making the return or supplying information under this Act, reassess or make additional assessments upon the taxpayer for tax, interest and penalties.

1994 c26 s14

Power to prescribe books

20. (1) A taxpayer shall keep adequate books of account and records for the purpose of this Act and where the books or records kept by a taxpayer are in the opinion of the inspector inadequate for those purposes, the minister may prescribe the books and records to be kept by that taxpayer.

(2) Where,

(a) the books of account and records kept by a taxpayer are in the opinion of the inspector inadequate for the purpose of assessment of tax under this Act;

(b) a taxpayer on the request of the inspector fails or refuses to produce books of account or records for examination; or

(c) a taxpayer alleges that the books of account or records are lost or destroyed and fails to show to the satisfaction of the inspector that the loss or destruction took place because of an act or occurrence beyond the control of that taxpayer,

the minister may make an assessment of the tax payable by the taxpayer, and every assessment made by the minister under this subsection is final and conclusive, and the provisions of this Act as to appeals do not apply in respect of that assessment.

(3) A person who, acting in whatever capacity, is in receipt of money, a thing of value, or profits, or gains arising from a source of or belonging to a taxpayer shall, when required to do so by notice from the assessor, prepare and deliver to the assessor information required, within 30 days after the date of the mailing of the notice.

1975 No68 s21; 1994 c26 s15

Review of estimated tax

21. A taxpayer who objects to the amount of tax assessed under this Act or who considers that no tax is payable may, personally or by an agent, within 90 days of receiving that notice of assessment, apply to the minister for a review and the minister, after considering the application, shall confirm, amend or revoke the assessment and notify the taxpayer accordingly.

1994 c26 s16

Appeal to Trial Division

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

(a) the person disputes the amount of estimated tax confirmed or amended by the minister under section 21, or his or her liability for it; or

(b) the person feels aggrieved by a penalty or interest imposed under section 15 or 16.

(2) In order to appeal under subsection (1), the appellant shall, within 30 days of being notified, in writing, of a decision made under section 15, 16 or 21, file in the Registry of the Supreme Court a notice of appeal.

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

(4) The appellant shall, within 14 days after service of a copy of the notice of appeal 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 upon 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, after considering those aspects that the judge in his or her discretion considers necessary in the interest of justice, decide the appeal

(a) by upholding, reducing or cancelling

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

(ii) the penalty or interest 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 he or she may make an order respecting costs in favour of or against the Crown and may fix the amount of those costs.

1994 c26 s16

Appeal to Court of Appeal

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

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

1994 c26 s16

Effect of delay

24. The giving of a notice of appeal by a person or a delay in the hearing of that appeal does not

(a) affect

(i) the due date of a tax or a part of it 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 due, or

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

(b) delay 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 an additional penalty or interest paid on it.

1994 c26 s16

Irregularity in procedure

25. An assessment shall not be varied or disallowed because of an irregularity, informality, omission or error on the part of the minister, inspector or another person in the observation of a directory provision up to the date of the posting or delivering the notice of assessment.

1975 No68 s26; 1994 c26 s17

Recovery of taxes by action

26. The minister may recover the amount of a tax due by a taxpayer under this Act by action in a court as a debt due to the Crown and the court may award costs in the action for or against the Crown.

1975 No68 s27

Issue of tax certificate

27. (1) Where a taxpayer fails to pay the tax, or a part of the tax, that is due under this Act, the minister may issue a certificate stating the amount of the tax due and remaining unpaid, and the name of the person by whom it is payable.

(2) The minister may file the certificate issued under subsection (1) with the Registrar of the Supreme Court and when he or she has filed it, the certificate is of the same effect and all proceedings, including appeal, may be taken on it as if it were a judgment for the recovery of a debt of the amount specified in the certificate against the person named in the certificate.

(3) The minister may recover all reasonable costs and charges attendant upon the filing of a certificate under subsection (2) in the same manner as the amount stated in the certificate.

1975 No68 s28

Demand on 3rd party

28. (1) The minister may by letter, delivered personally or sent by registered mail to a person who is indebted, or is about to become indebted, to a taxpayer who is liable to pay a tax under this Act, demand that the person pay to the minister on account of that taxpayer's liability under this Act the whole or part of the money payable by that person to the taxpayer.

(2) The receipt of the minister for money paid under subsection (1) constitutes a sufficient discharge of the liability of the person indebted to the taxpayer to the extent of the amount stated in the receipt.

(3) A person who, after he or she receives a demand from the minister under subsection (1), discharges any of the liability to the taxpayer referred to in that subsection, is personally liable to that minister to the extent of the liability discharged as between him or her and the taxpayer or to the extent of the liability of the taxpayer for taxes, whichever is the lesser amount.

1975 No68 s29

Exercise of recovery powers

29. The powers conferred by this Act for the recovery of taxes by action in court, by filing a certificate, or by demand under section 28, may be exercised separately, concurrently or cumulatively and the liability of a taxpayer for the payment of the tax is not affected by the fact that a fine, penalty or forfeiture has been imposed, paid or incurred by the taxpayer under this Act.

1975 No68 s30

Taxes constitute encumbrance upon estate of taxpayer

30. (1) Notwithstanding subsection (2), the taxes payable under this Act constitute a lien, charge or encumbrance in favour of the Crown upon the entire estate, real or personal of the taxpayer, and, following execution and levy of a judgment obtained by action or by the filing of a certificate, that lien, charge or encumbrance has priority over all other claims, liens, charges, privileges or encumbrances of a person, except those which have been registered under a statute of the province providing for the registration of them before the date of execution and levy.

(2) The lien, charge or encumbrance created by this section and their priority shall not be lost or impaired by a neglect, omission or error of the minister, or an inspector, agent or officer of the minister, or by the tender or acceptance of a partial payment of the taxes payable under this Act.

1975 No68 s31; 1994 c26 s18

Taxes, etc. form part of CRF

31. All taxes, costs, penalties, interests and fines paid or recovered under this Act form part of the Consolidated Revenue Fund.

1975 No68 s32

Offences

32. (1) A person who fails to pay the tax required to be paid under this Act or contravenes a section of this Act is guilty of an offence and is liable on summary conviction

(a) for a 1st offence to a fine of not less than $1,000 and not 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 $2,500 and not more than $20,000 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 $5,000 and not more than $30,000 or to imprisonment for a term of not less than 6 months or to both a fine and imprisonment.

(2) If a corporation is guilty of an offence under this Act or the regulations, an officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence.

(3) An information in respect of an offence under this Act or the regulations shall be laid within 6 years from the date of the offence.

(4) 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.

(5) An information or complaint for contravening this Act or regulations may be for 1 or more offences and no information, complaint, warrant, conviction or other proceeding in a prosecution under this Act or the regulations is objectionable or insufficient because of the fact that it relates to 2 or more offences.

(6) In addition to the fines imposed under subsection (1), a court shall order a person who defaults in the payment of those fines be imprisoned for a period of not less than 1 month and not more than 6 months and that period of imprisonment shall be in addition to any other period of imprisonment imposed under this section.

1975 No68 s33; 1979 c35 Sch B; 1994 c26 s19

Liability of directors, etc.

33. (1) In addition to the penalties imposed under section 32, 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 the officer, director or agent to pay the tax that 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 or not 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 that the corporation has been convicted of failing to pay under subsection (1) where that officer, director or agent shows that he or she exercised the degree of care, diligence and skill to prevent the failure that a reasonably prudent person would have exercised in comparable circumstances.

1994 c26 s20

Regulations

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

(a) [Rep. by 1994 c26 s21]

(b) prescribing rates and methods of calculating interest, the documents, times and the manner of paying refunds, interest and making other payments;

(c) prescribing the duties of the board, with power to confer upon the board the power of an investigating body under the Public Investigations Evidence Act, fixing the remuneration payable to the chairperson and other members and providing for reimbursement of outlays and travel expenses;

(d) for the purposes of calculation of net revenue of a taxpayer liable to tax under section 9, prescribing areas of land in respect of which costs and outlays incurred by that taxpayer within the province may be deducted;

(e) setting the rates of depreciation of assets of a capital nature used in mining operations and processing minerals extracted from land under those mining operations, with power to prescribe different rates of depreciation and different methods of calculation of depreciation for different kinds or types of capital assets;

(e.1) prescribing depreciation, expenses deductions and disallowed deductions allowable or disallowed under paragraphs 5(1)(b) and (f) and subsection 5(4);

(f) exempting generally a class of persons from the payment of all or a part of the taxes imposed by this Act;

(f.1) prescribing the circumstances under which refunds and interest may be granted or denied and setting restrictions on the granting or denying of refunds and interest;

(g) prescribing the method of determining the actual cost of goods and services for the purpose of paragraph 5(2)(f); and

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

(2) Regulations made under paragraph (1)(f) may be made with retroactive effect to a date stated in the regulations which shall not be more than the period of 12 months before the date of publication in the Gazette.

(3) Notwithstanding subsection (2), regulations made under subsection (1) and gazetted on or before July 1, 1997 may be made with retroactive effect to a date stated in the regulations of more than 12 months before their date of publication in the Gazette but in no case shall those regulations be retroactive to before January 1, 1995.

1975 No68 s35; 1992 c16 s29; 1994 c26 s21
1997 c13 s45

Fees and forms

35. The minister may prescribe forms for the use in the administration of this Act.

1997 c13 s45