Underused Housing Tax Act (S.C. 2022, c. 5, s. 10)

Marginal note:Recovery by deduction or set-off

74 If a person is indebted to Her Majesty in right of Canada under this Act, the Minister may require the retention by way of deduction or set-off of any amount that the Minister may specify out of any amount that may be or become payable to that person by Her Majesty in right of Canada.

Marginal note:Acquisition of debtor’s property

75 For the purpose of collecting debts owed by a person to Her Majesty in right of Canada under this Act, the Minister may purchase or otherwise acquire any interest in, or for civil law any right in, the person’s property that the Minister is given a right to acquire in legal proceedings or under a court order or that is offered for sale or redemption and may dispose of any interest or right so acquired in any manner that the Minister considers reasonable.

Marginal note:Money seized from debtor

• 76 (1) If the Minister has knowledge or suspects that a person is holding money that was seized by a police officer in the course of administering or enforcing the criminal law of Canada from another person that is liable to pay any amount under this Act (in this section referred to as the “debtor”) and that is restorable to the debtor, the Minister may in writing require the person to turn over the money otherwise restorable to the debtor, in whole or in part, to the Receiver General on account of the debtor’s liability under this Act.

• Marginal note:Receipt of Minister

  (2) A receipt issued by the Minister for money turned over as required under this section is a good and sufficient discharge of the requirement to restore the money to the debtor to the extent of the amount so turned over.

Marginal note:Seizure

• 77 (1) If a person fails to pay an amount as required under this Act, the Minister may in writing give 30 days notice to the person, addressed to their latest known address, of the Minister’s intention to direct that the person’s things be seized and disposed of. If the person fails to make the payment before the expiry of the 30 days, the Minister may issue a certificate of the failure and direct that the person’s things be seized.

• Marginal note:Disposition

  (2) Things that have been seized under subsection (1) must be kept for 10 days at the expense and risk of the person. If the person does not pay the amount due together with all expenses within the 10 days, the Minister may dispose of the things in a manner the Minister considers appropriate in the circumstances.

• Marginal note:Proceeds of disposition

  (3) Any surplus resulting from a disposition of a person’s things, after deduction of the amount owing and all expenses, must be paid or returned to the person.

• Marginal note:Exemptions from seizure

  (4) Any thing of any person in default that would be exempt from seizure under a writ of execution issued by a superior court of the province in which the seizure is made is exempt from seizure under this section.

Marginal note:Person leaving Canada or defaulting

• 78 (1) If the Minister suspects that a person has left or is about to leave Canada, the Minister may, before the day otherwise fixed for payment, by notice to the person served personally or sent by confirmed delivery service addressed to their latest known address, demand payment of any amount for which the person is liable under this Act or would be so liable if the time for payment had arrived, and the amount must be paid without delay despite any other provision of this Act.

• Marginal note:Seizure

  (2) If a person fails to pay an amount required under subsection (1), the Minister may direct that things of the person be seized, and subsections 77(2) to (4) apply, with any modifications that the circumstances require.

Marginal note:Authorization to assess and take collection action

• 79 (1) Despite section 70, if, on ex parte application by the Minister relating to a calendar year made on or after the last day of the calendar year, a judge is satisfied that there are reasonable grounds to believe that tax for the calendar year will be required to be paid to the Receiver General under subsection 6(3) and that the collection of all or any part of that tax would be jeopardized by a delay in its collection, the judge must, on any terms that the judge considers reasonable in the circumstances, authorize the Minister to, without delay,

  • (a) assess the tax for the calendar year, determined in accordance with subsection (2); and

  • (b) take any of the actions described in sections 72 to 77 in respect of that amount.

• Marginal note:Effect of authorization

  (2) For the purposes of this Act, if an authorization is granted under subsection (1) in respect of an application relating to a calendar year of a person

  • (a) the particular day on or before which the person is required to file a return under section 7 for the calendar year is deemed to be the day on which a judge hears the application for the authorization;

  • (b) the tax for the calendar year is deemed to have become due to the Receiver General on the particular day; and

  • (c) sections 23, 47, 49, 51 and 52 apply as if the tax for the calendar year were not required to be paid, and the return for that calendar year were not required to be filed, until the last day of the period described in subsection (8).

• Marginal note:Affidavits

  (3) Statements contained in an affidavit filed in the context of an application under this section may be based on belief in which case it must include the grounds for that belief.

• Marginal note:Service of authorization and notice of assessment

  (4) An authorization granted under subsection (1) in respect of a person must be served by the Minister on the person within 72 hours after it is granted, except if the judge orders the authorization to be served at some other time specified in the authorization, and a notice of assessment for the calendar year must be served on the person together with the authorization.

• Marginal note:How service effected

  (5) For the purpose of subsection (4), service on a person must be effected by personal service on the person or service in accordance with the directions of a judge.

• Marginal note:Application to judge for direction

  (6) If service cannot reasonably be effected as and when required under this section, the Minister may, as soon as practicable, apply to a judge for further direction.

• Marginal note:Review of authorization

  (7) If a judge of a court has granted an authorization under subsection (1) in respect of a person, the person may, on six clear days notice to the Deputy Attorney General of Canada, apply to a judge of the court to review the authorization.

• Marginal note:Limitation period for review application

  (8) An application by a person under subsection (7) to review an authorization must be made

  • (a) within 30 days after the day on which the authorization was served on the person in accordance with this section; or

  • (b) within any further time that a judge may allow, on being satisfied that the application was made as soon as practicable.

• Marginal note:Hearing in camera

  (9) An application by a person under subsection (7) may, on the application of the person, be heard in private, if the person establishes to the satisfaction of the judge that the circumstances of the case justify proceedings heard in private.

• Marginal note:Disposition of application

  (10) On an application under subsection (7), the judge must determine the question summarily and may confirm, vary or set aside the authorization and make any other order that the judge considers appropriate.

• Marginal note:Effect of setting aside authorization

  (11) If an authorization is set aside under subsection (10), subsection (2) does not apply in respect of the authorization and any assessment made as a result of the authorization is deemed to be void.

• Marginal note:Directions

  (12) If any question arises as to the course to be followed in connection with anything done or being done under this section and there is no relevant direction in this section, a judge may give any direction with regard to the course to be followed that, in the opinion of the judge, is appropriate.

• Marginal note:No appeal from review order

  (13) No appeal lies from an order of a judge made under subsection (10).

Marginal note:Tax liability — transfers not at arm’s length

• 80 (1) If at any time a person transfers property, either directly or indirectly, by means of a trust or by any other means, to

  • (a) the transferor’s spouse or common-law partner or an individual that has since become the transferor’s spouse or common-law partner,

  • (b) an individual that was under 18 years of age, or

  • (c) another person with whom the transferor was not dealing at arm’s length,

  the transferee and transferor are jointly and severally, or solidarily, liable to pay under this Act an amount equal to the lesser of

  • (d) the amount determined by the formula

    A – B

    where

    A

    is the amount, if any, by which the fair market value of the property at that time exceeds the fair market value at that time of the consideration given by the transferee for the transfer of the property, and

    B

    is the amount, if any, by which the amount assessed the transferee under subsection 325(2) of the Excise Tax Act, paragraph 97.44(1)(b) of the Customs Act, subsection 160(2) of the Income Tax Act, subsection 297(3) of the Excise Act, 2001 or subsection 161(3) of the Greenhouse Gas Pollution Pricing Act in respect of the property exceeds the amount paid by the transferor in respect of the amount so assessed, and

  • (e) the total of all amounts each of which is

    • (i) an amount that the transferor is liable to pay under this Act for the calendar year of the transferor that includes that time or any preceding calendar year of the transferor, or

    • (ii) interest or penalty for which the transferor is liable as of that time,

  but nothing in this subsection limits the liability of the transferor under this Act.

• Marginal note:Fair market value of undivided interest

  (2) For the purpose of this section, the fair market value at any time of an undivided interest in a property, expressed as a proportionate interest in that property, is, subject to subsection (5), deemed to be equal to the same proportion of the fair market value of that property at that time.

• Marginal note:Assessment

  (3) The Minister may at any time assess a transferee in respect of any amount payable by reason of this section, and the provisions of sections 15 and 33 to 46 apply, with any modifications that the circumstances require.

• Marginal note:Rules applicable

  (4) If a transferor and transferee have, by reason of subsection (1), become jointly and severally, or solidarily, liable in respect of part or all of the liability of the transferor under this Act, the following rules apply:

  • (a) a payment by the transferee on account of the transferee’s liability must, to the extent of the payment, discharge their liability; and

  • (b) a payment by the transferor on account of the transferor’s liability only discharges the transferee’s liability to the extent that the payment operates to reduce the transferor’s liability to an amount less than the amount in respect of which the transferee was, by subsection (1), made jointly and severally, or solidarily, liable.

• Marginal note:Transfers to spouse or common-law partner

  (5) Despite subsection (1), if at any time an individual transfers property to the individual’s spouse or common-law partner under a decree, order or judgment of a competent tribunal or under a written separation agreement and, at that time, the individual and the individual’s spouse or common-law partner were separated and living apart as a result of the breakdown of their marriage or common-law partnership as defined in subsection 248(1) of the Income Tax Act, for the purposes of paragraph (1)(d), the fair market value at that time of the property so transferred is deemed to be nil, but nothing in this subsection limits the liability of the individual under this Act.

DIVISION 12Evidence and Procedure

Marginal note:Service

• 81 (1) If the Minister is authorized or required to serve, issue or send a notice or other document on or to a person that carries on business under a name or style other than the name of the person, the notice or document may be addressed to the name or style under which the person carries on business.

• Marginal note:Personal service

  (2) If the Minister is authorized or required to serve, issue or send a notice or other document on or to a person that carries on a business, the notice or document is deemed to have been validly served, issued or sent if it is left with an adult person employed at the place of business of the person.

Marginal note:Timing of receipt

• 82 (1) For the purposes of this Act and subject to subsection (2), anything sent by confirmed delivery service or first class mail is deemed to have been received by the person to which it was sent on the day it was mailed or sent.

• Marginal note:Timing of payment

  (2) A person that is required under this Act to pay an amount is deemed not to have paid it until it is received by the Receiver General.

Marginal note:Proof of service

• 83 (1) If, under this Act, provision is made for sending by confirmed delivery service a request for information, a notice or a demand, an affidavit of an officer of the Canada Revenue Agency, sworn before a commissioner or other person authorized to take affidavits, is evidence of the sending and of the request, notice or demand if the affidavit sets out that

  • (a) the officer has knowledge of the facts in the particular case;

  • (b) the request, notice or demand was sent by confirmed delivery service on a specified day to a specified person and address; and

  • (c) the officer identifies as exhibits attached to the affidavit a true copy of the request, notice or demand and

    • (i) if the request, notice, or demand was sent by registered or certified mail, the post office certificate of registration of the letter or a true copy of the relevant portion of the certificate, and

    • (ii) in any other case, the record that the document has been sent or a true copy of the relevant portion of the record.

• Marginal note:Proof of personal service

  (2) If, under this Act, provision is made for personal service of a request for information, a notice or a demand, an affidavit of an officer of the Canada Revenue Agency, sworn before a commissioner or other person authorized to take affidavits, is evidence of the personal service and of the request, notice or demand if the affidavit sets out that

  • (a) the officer has knowledge of the facts in the particular case;

  • (b) the request, notice or demand was served personally on a named day on the person to whom it was directed; and

  • (c) the officer identifies as an exhibit attached to the affidavit a true copy of the request, notice or demand.

• Marginal note:Proof of electronic delivery

  (3) If, under this Act, provision is made for sending a notice to a person electronically, an affidavit of an officer of the Canada Revenue Agency, sworn before a commissioner or other person authorized to take affidavits, is evidence of the sending and of the notice if the affidavit sets out that

  • (a) the officer has knowledge of the facts in the particular case;

  • (b) the notice was sent electronically to the person on a named day; and

  • (c) the officer identifies as exhibits attached to the affidavit copies of

    • (i) an electronic message confirming that the notice has been sent to the person, and

    • (ii) the notice.

• Marginal note:Proof — failure to comply

  (4) If, under this Act, a person is required to make a return, an application, a statement, an answer or a certificate, an affidavit of an officer of the Canada Revenue Agency, sworn before a commissioner or other person authorized to take affidavits, setting out that the officer has charge of the appropriate records and that, after a careful examination and search of the records, the officer has been unable to find in a given case that the return, application, statement, answer or certificate has been made by that person, is evidence that in that case the person did not make the return, application, statement, answer or certificate.

• Marginal note:Proof — time of compliance

  (5) If, under this Act, a person is required to make a return, an application, a statement, an answer or a certificate, an affidavit of an officer of the Canada Revenue Agency, sworn before a commissioner or other person authorized to take affidavits, setting out that the officer has charge of the appropriate records and that, after a careful examination of the records, the officer has found that the return, application, statement, answer or certificate was filed or made on a particular day, is evidence that it was filed or made on that day.

• Marginal note:Proof of documents

  (6) An affidavit of an officer of the Canada Revenue Agency, sworn before a commissioner or other person authorized to take affidavits, setting out that the officer has charge of the appropriate records and that a document attached to the affidavit is a document or true copy of a document, or a printout of an electronic document, made by or on behalf of the Minister or a person exercising the powers of the Minister or by or on behalf of a person, is evidence of the nature and contents of the document.

• Marginal note:Proof of no appeal

  (7) An affidavit of an officer of the Canada Revenue Agency, sworn before a commissioner or other person authorized to take affidavits, setting out that the officer has charge of the appropriate records and has knowledge of the practice of the Canada Revenue Agency and that an examination of the records shows that a notice of assessment was mailed or otherwise sent to a person on a particular day under this Act and that, after a careful examination and search of the records, the officer has been unable to find that a notice of objection or of appeal from the assessment, as the case may be, was received within the time allowed, is evidence of the statements contained in the affidavit.

• Marginal note:Presumption

  (8) If evidence is offered under this section by an affidavit from which it appears that the person making the affidavit is an officer of the Canada Revenue Agency, it is not necessary to prove the signature of the person or that the person is such an officer, nor is it necessary to prove the signature or official character of the person before whom the affidavit was sworn.

• Marginal note:Proof of documents

  (9) Every document purporting to have been executed under or in the course of the administration or enforcement of this Act over the name in writing of the Minister, the Commissioner or an officer authorized to exercise the powers or perform the duties of the Minister under this Act is deemed to be a document signed, made and issued by the Minister, the Commissioner or the officer, unless it has been called into question by the Minister or a person acting for the Minister or for Her Majesty in right of Canada.

• Marginal note:Mailing or sending date

  (10) For the purposes of this Act, if a notice or demand that the Minister is required or authorized under this Act to send to a person is mailed, or sent electronically, to the person, the day of mailing or sending, as the case may be, is presumed to be the date of the notice or demand.

• Marginal note:Date electronic notice sent

  (11) For the purposes of this Act, if a notice or other communication in respect of a person is made available in electronic format such that it can be read or perceived by a person or a computer system or other similar device, the notice or other communication is presumed to be sent to the person and received by the person on the date that an electronic message is sent, to the electronic address most recently provided before that date by the person to the Minister for the purposes of this subsection, informing the person that a notice or other communication requiring the person’s immediate attention is available in the person’s secure electronic account. A notice or other communication is considered to be made available if it is posted by the Minister in the person’s secure electronic account and the person has authorized that notices or other communications may be made available in this manner and has not before that date revoked that authorization in a manner specified by the Minister.

• Marginal note:Date assessment made

  (12) If a notice of assessment has been sent by the Minister as required under this Act, the assessment is deemed to have been made on the day of sending of the notice of assessment.

• Marginal note:Proof of return

  (13) In a prosecution for an offence under this Act, the production of a return, an application, a certificate, a statement or an answer required under this Act, purporting to have been filed or delivered by or on behalf of the person charged with the offence or to have been made or signed by or on behalf of that person, is evidence that the return, application, certificate, statement or answer was filed or delivered by or on behalf of that person or was made or signed by or on behalf of that person.

• Marginal note:Proof of return — printouts

  (14) For the purposes of this Act, a document presented by the Minister purporting to be a printout of the information in respect of a person received under section 9 by the Minister is to be received as evidence and, in the absence of evidence to the contrary, is proof of the return filed by the person under that section.

• Marginal note:Proof of return — production of returns

  (15) In a proceeding under this Act, the production of a return, an application, a certificate, a statement or an answer required under this Act, purporting to have been filed, delivered, made or signed by or on behalf of a person, is evidence that the return, application, certificate, statement or answer was filed, delivered, made or signed by or on behalf of that person.

• Marginal note:Evidence

  (16) In a prosecution for an offence under this Act, an affidavit of an officer of the Canada Revenue Agency, sworn before a commissioner or other person authorized to take affidavits, setting out that the officer has charge of the appropriate records and that an examination of the records shows that an amount required under this Act to be paid to the Receiver General has not been received by the Receiver General, is evidence of the statements contained in the affidavit.