Digital Services Tax Act (S.C. 2024, c. 15, s. 96)

Marginal note:General penalty

88 A person that fails to comply with any provision of this Act, or the regulations made under this Act, for which no other penalty is specified in this Act is liable to a penalty of $2,500.

Marginal note:Payment of penalties

89 A person that is required to pay a penalty under this Act must pay it,

• (a) in the case of a penalty payable under section 83, on the day on which the taxpayer was required to apply to register;

• (b) in the case of a penalty payable under section 84, on the day on which the taxpayer was required to file the return; and

• (c) in any other case, on the day on which the notice of original assessment of the penalty was sent.

Marginal note:Waiving or cancelling penalties

• 90 (1) The Minister may, on or before the day that is 10 calendar years after the end of a calendar year in which a penalty became payable under this Act by a person, or on application by the person on or before that day, waive or cancel all or any portion of that penalty, and may despite subsection 70(1), make any assessment of the penalty payable by the person that is necessary to take into account the waiver or cancellation of the penalty.

• Marginal note:Refund of amount waived or cancelled

  (2) If a person has paid an amount of penalty and the Minister waives or cancels any portion of that amount under subsection (1), the Minister must refund the portion of the amount and pay interest on it at the rate prescribed by regulation beginning on the day that is 30 days after the day on which the Minister received an application in a manner satisfactory to the Minister to apply that subsection (or, if there is no such application, on the day on which the Minister waives or cancels the portion of the amount) and ending on the day on which the portion of the amount is paid as a refund or applied against another amount owed by the person to His Majesty in right of Canada.

DIVISION MOffences and Punishment

Marginal note:Failure to file or comply

• 91 (1) A person that fails to file a return as and when required under this Act or that fails to comply with an obligation under subsection 65(6) or (8) or section 66, or an order made under section 97, is guilty of an offence and, in addition to any penalty otherwise provided under this Act, is liable on summary conviction to a fine of not less than $2,000 and not more than $40,000.

• Marginal note:Saving

  (2) A person that is convicted of an offence under subsection (1) for a failure to comply with a provision of this Act is not liable to a penalty imposed under this Act for the same failure, unless a notice of assessment for the penalty was issued before the information or complaint giving rise to the conviction was laid or made.

Marginal note:Offences for false or deceptive statement

• 92 (1) A person commits an offence that

  • (a) makes, or participates in, assents to or acquiesces in the making of, a false or deceptive statement in a return, application, form, certificate, statement, document, invoice, record or answer filed or made under this Act;

  • (b) for the purposes of evading payment of any amount payable under this Act, or obtaining a refund or other payment payable under this Act to which the person is not entitled,

    • (i) destroys, alters, mutilates, conceals or otherwise disposes of any records of a person, or

    • (ii) makes, or assents to or acquiesces in the making of, a false or deceptive entry, or omits, or assents to or acquiesces in the omission, to enter a material particular in the records of a person;

  • (c) intentionally, in any manner, evades or attempts to evade compliance with this Act or payment of an amount payable under this Act;

  • (d) intentionally, in any manner, obtains or attempts to obtain a refund or other payment payable under this Act to which the person is not entitled; or

  • (e) conspires with any person to commit an offence described in any of paragraphs (a) to (d).

• Marginal note:Punishment

  (2) A person that commits an offence under subsection (1) is guilty of an offence punishable on summary conviction and, in addition to any penalty otherwise provided under this Act, is liable to a fine of not less than 50% and not more than 200% of the amount payable that was sought to be evaded, or of the refund or other payment sought, or, if the amount that was sought to be evaded cannot be ascertained, a fine of not less than $2,000 and not more than $40,000.

• Marginal note:Prosecution on indictment

  (3) A person that is charged with an offence described in subsection (1) may, at the election of Attorney General of Canada, be prosecuted on indictment and, if convicted, is, in addition to any penalty otherwise provided for under this Act, liable to a fine of not less than 100% and not more than 200% of the amount payable that was sought to be evaded, or of the refund or other payment sought, or, if the amount that was sought to be evaded cannot be ascertained, a fine of not less than $5,000 and not more than $100,000.

• Marginal note:Penalty on conviction

  (4) A person that is convicted of an offence under subsection (1) is not liable to a penalty imposed under this Act for the same evasion or attempt unless a notice of assessment for that penalty was issued before the information or complaint giving rise to the conviction was laid or made.

• Marginal note:Stay of appeal

  (5) If, in any appeal under this Act, substantially the same facts are at issue as those that are at issue in a prosecution under this section, the Minister may file a stay of proceedings with the Tax Court of Canada and, on that filing, the proceedings before the Tax Court of Canada are stayed pending a final determination of the outcome of the prosecution.

Marginal note:Failure to pay tax

93 A person that intentionally fails to pay tax as and when required under this Act is guilty of an offence punishable on summary conviction and, in addition to any penalty or interest otherwise provided for under this Act, is liable to a fine not exceeding 20% of the amount of the tax that should have been paid.

Marginal note:Offence — confidential information

• 94 (1) A person is guilty of an offence and liable on summary conviction to a fine not exceeding $5,000 if the person

  • (a) contravenes subsection 108(2); or

  • (b) knowingly contravenes an order made under subsection 108(7).

• Marginal note:Offence — confidential information

  (2) A person to whom confidential information has been provided for a particular purpose under subsection 108(6) and that for any other purpose knowingly uses, provides to any person, allows the provision to any person of, or allows any person access to, that information is guilty of an offence and is liable on summary conviction to a fine not exceeding $5,000.

• Marginal note:Definition of confidential information

  (3) In subsection (2), confidential information has the same meaning as in subsection 108(1).

Marginal note:General offence

95 A person that fails to comply with any provision of this Act, or the regulations made under this Act, for which no other offence is specified in this Act is guilty of an offence punishable on summary conviction and is liable to a fine of not more than $100,000.

Marginal note:Defence of due diligence

96 No person is to be convicted of an offence under section 91 or 95 of this Act if the person establishes that they exercised all due diligence to prevent the commission of the offence.

Marginal note:Compliance orders

97 If a person is convicted by a court of an offence for a failure to comply with a provision of this Act, the court may make any order that it deems appropriate to enforce compliance with the provision.

Marginal note:Officers of corporations, etc.

98 If a person other than an individual commits an offence under this Act, every officer, director or representative of the person who directed, authorized, assented to, acquiesced in, or participated in, the commission of the offence is a party to and is guilty of the offence and is liable on conviction to the punishment provided for the offence, whether or not the person has been prosecuted or convicted.

Marginal note:Power to decrease punishment

99 Despite the Criminal Code or any other law, the court does not have the power to impose less than the minimum fine fixed under this Act in any prosecution or proceeding under this Act.

Marginal note:Information or complaint

• 100 (1) An information or complaint under this Act may be laid or made by any official of the Agency, by a member of the Royal Canadian Mounted Police or by any person authorized to do so by the Minister and, if an information or complaint purports to have been laid or made under this Act, it is deemed to have been laid or made by a person so authorized by the Minister and is not to be called in question for lack of authority of the informant or complainant, except by the Minister or a person acting for the Minister or for His Majesty in right of Canada.

• Marginal note:Two or more offences

  (2) An information or complaint in respect of an offence under this Act may be for one or more offences, and no information, complaint, warrant, conviction or other proceeding in a prosecution under this Act is objectionable or insufficient by reason of the fact that it relates to two or more offences.

• Marginal note:Territorial jurisdiction

  (3) An information or complaint in respect of an offence under this Act may be heard, tried or determined by any court having territorial jurisdiction where the accused is resident, carrying on a commercial activity, found, apprehended or in custody, even if the matter of the information or complaint did not arise within that territorial jurisdiction.

• Marginal note:Limitation of prosecutions

  (4) No proceeding by way of summary conviction in respect of an offence under this Act may be instituted more than eight years after the day on which the subject matter of the proceeding arose, unless the prosecutor and the defendant agree that it may be instituted after the eight years.

DIVISION NInspections

Marginal note:Authorized person

• 101 (1) A person authorized by the Minister (in this section referred to as an “authorized person”) to do so may, at all reasonable times, for any purpose related to the administration or enforcement of this Act, inspect, audit or examine the records, processes, property or premises of a particular person that may be relevant in determining the obligations of the particular person, or any other person, under this Act and whether the particular person, or any such other person, is in compliance with this Act.

• Marginal note:Powers of authorized person

  (2) Subject to subsection (3), an authorized person may, at all reasonable times, for any purpose related to the administration or enforcement of this Act

  • (a) enter any place in which the authorized person reasonably believes that the particular person keeps or should keep records, carries on any activity to which this Act applies or does anything in relation to that activity;

  • (b) require any individual to give the authorized person all reasonable assistance, to answer all proper questions relating to the administration or enforcement of this Act and

    • (i) to attend with the authorized person at a place designated by the authorized person, or by video-conference or by another form of electronic communication, and to answer the questions orally, and

    • (ii) to answer the questions in writing, in any form specified by the authorized person; and

  • (c) require any person to give the authorized person all reasonable assistance with anything the authorized person is authorized to do under this Act.

• Marginal note:Prior authorization

  (3) If any place referred to in subsection (2) is a dwelling-house, an authorized person may not enter that dwelling-house without the consent of the occupant, except under the authority of a warrant issued under subsection (4).

• Marginal note:Warrant to enter dwelling-house

  (4) A judge may on ex parte application by the Minister, issue a warrant authorizing a person to enter a dwelling-house subject to the conditions specified in the warrant if the judge is satisfied by information on oath that

  • (a) there are reasonable grounds to believe that the dwelling-house is a place referred to in subsection (2);

  • (b) entry into the dwelling-house is necessary for any purpose related to the administration or enforcement of this Act; and

  • (c) entry into the dwelling-house has been, or there are reasonable grounds to believe that entry will be, refused.

• Marginal note:Orders if entry refused

  (5) If a judge is not satisfied that entry into a dwelling-house is necessary for any purpose related to the administration or enforcement of this Act, the judge may, to the extent that access was or may be expected to be refused and that a record or property is or may be expected to be kept in the dwelling-house,

  • (a) order the occupant of the dwelling-house to provide a person with reasonable access to any record or property that is or should be kept in the dwelling-house; and

  • (b) make any other order that is appropriate in the circumstances to carry out the purposes of this Act.

• Marginal note:Definition of dwelling-house

  (6) In this section, dwelling-house means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and includes

  • (a) a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passageway; and

  • (b) a unit that is designed to be mobile and to be used as a permanent or temporary residence and that is being used as such a residence.

Marginal note:Compliance order

• 102 (1) On application by the Minister, a judge may, despite section 97, order a person to provide any access, assistance, information or record sought by the Minister under section 66 or 101 if the judge is satisfied that the person was required under section 66 or 101 to provide the access, assistance, information or record and did not do so.

• Marginal note:Notice required

  (2) An application under subsection (1) must not be heard before the end of five clear days after the day on which the notice of application is served on the person against which the order is sought.

• Marginal note:Judge may impose conditions

  (3) A judge who makes an order under subsection (1) may impose any conditions in respect of the order that the judge considers appropriate.

• Marginal note:Contempt of court

  (4) If a person fails or refuses to comply with an order under subsection (1), a judge may find the person in contempt of court and the person is subject to the processes and the punishments of the court to which the judge is appointed.

• Marginal note:Appeal

  (5) An order by a judge under subsection (1) may be appealed to a court having appellate jurisdiction over decisions of the court to which the judge is appointed. An appeal does not suspend the execution of the order unless it is so ordered by a judge of the court to which the appeal is made.

• Marginal note:Time period not to count

  (6) If an application is commenced by the Minister under subsection (1) to order a person to provide any access, assistance, information, or record, the period between the day on which the person files a notice of appearance, or otherwise opposes the application, and the day on which the application is finally disposed of is not to be counted in the computation of the period within which, under subsection 70(1), an assessment may be made.

Marginal note:Search warrants

• 103 (1) A judge may, on ex parte application by the Minister, issue a warrant authorizing any person named in the warrant to enter and search any building, receptacle or place for any record or thing that may afford evidence of the commission of an offence under this Act and to seize the record or thing and, as soon as is practicable, bring it before, or make a report in respect of it to, the judge or, if that judge is unable to act, another judge of the same court, to be dealt with by the judge in accordance with this section.

• Marginal note:Evidence on oath

  (2) An application under subsection (1) must be supported by information on oath establishing the facts on which the application is based.

• Marginal note:Issue of warrants

  (3) A judge may issue a warrant under subsection (1) if the judge is satisfied that there are reasonable grounds to believe that

  • (a) an offence under this Act has been committed;

  • (b) a record or thing that may afford evidence of the commission of the offence is likely to be found; and

  • (c) the building, receptacle or place specified in the application is likely to contain a record or thing referred to in paragraph (b).

• Marginal note:Contents of warrant

  (4) A warrant issued under subsection (1) must refer to the offence for which it is issued, identify the building, receptacle or place to be searched and the person that is alleged to have committed the offence, and it must be reasonably specific as to any record or thing to be searched for and seized.

• Marginal note:Seizure

  (5) Any person that executes a warrant issued under subsection (1) may seize, in addition to the record or thing referred to in that subsection, any other record or thing that the person believes on reasonable grounds affords evidence of the commission of an offence under this Act and must, as soon as is practicable, bring the record or thing before, or make a report in respect of the record or thing to, the judge that issued the warrant or, if that judge is unable to act, another judge of the same court, to be dealt with by the judge in accordance with this section.

• Marginal note:Retention

  (6) Subject to subsection (7), if any record or thing seized under subsection (1) or (5) is brought before a judge or a report in respect of the record or thing is made to a judge, the judge must, unless the Minister waives retention, order that the record or thing be retained by the Minister and the Minister must take reasonable care to ensure that the record or thing is preserved until the conclusion of any investigation into the offence in relation to which it was seized or until it is required to be produced for the purposes of a criminal proceeding.

• Marginal note:Return of records or things seized

  (7) If any record or thing seized under subsection (1) or (5) is brought before a judge or a report in respect of the record or thing is made to a judge, the judge may, on the judge’s own motion or on application by a person with an interest in the record or thing on three clear days notice of application to the Deputy Attorney General of Canada, order that the record or thing be returned to the person from which the record or thing was seized or to the person that is otherwise legally entitled to the record or thing, if the judge is satisfied that the record or thing

  • (a) will not be required for an investigation or a criminal proceeding; or

  • (b) was not seized in accordance with the warrant or this section.

• Marginal note:Access and copies

  (8) A person from which any record or thing is seized under this section is entitled, at all reasonable times and subject to any reasonable conditions that may be imposed by the Minister, to inspect the record or thing and, in the case of a document, to obtain one copy of the record at the expense of the Minister.