Ley sobre las Aduanas (R.S.C., 1985, c. 1 (2nd Supp.)), Canadá

33.6 [Repealed, 2001, c. 25, s. 27]

Extension of time

33.7 (1) The Minister or any officer designated by the President for the purposes of this section may at any time extend in writing the time prescribed by the regulations made under this Part for the accounting of goods or the payment of any amount owing as duties.

Effect of extension for accounting

(2)

Where the time within which a person must account for goods is extended under subsection (1),

(a)

the goods shall be accounted for within the time as so extended;

(b)

if the person accounts for the goods within the extended time, no penalty shall be imposed under section 109.1; and

(c)

if the person fails to account for the goods within the time as so extended, the extension shall be deemed not to have been made.

Effect of extension for payment

(3)

Where the time within which a person must pay any amount owing as duties is extended under subsection (1),

(a)

that amount shall be paid within the time as so extended;

(b)

if the person pays that amount within the time as so extended, subsection 33.4(1) shall apply in respect of that amount as if the time had not been so extended, but interest payable under that subsection in respect of that amount shall be computed at the prescribed rate rather than at the specified rate; and

(c)

if the person fails to pay the amount within the time as so extended, the extension shall be deemed not to have been made.

1992, c. 28, s. 7; 2001, c. 25, s. 28; 2005, c. 38, s. 66.

1. [Repealed, 2001, c. 25, s. 29]
2. [Repealed, 1995, c. 41, s. 10]

Security and conditions of release

35. Except in such circumstances as may be prescribed, no goods shall be released under subsection 32(2) or (4) or section 33 until such deposits, bonds or other security as may be prescribed is given, and any goods that are released under those provisions shall be released subject to such terms and conditions as may be prescribed.

R.S., 1985, c. 1 (2nd Supp.), s. 35; 1995, c. 41, s. 11.

MARKING OF GOODS

Requirement to comply with marking regulations

35.01 No person shall import goods that are required to be marked by any regulations made under section 19 of the Customs Tariff unless the goods are marked in accordance with those regulations.

1993, c. 44, s. 83; 1997, c. 36, s. 155.

35.02 (1) [Repealed, 2001, c. 25, s. 30]

Notice requiring marking or compliance

(2)

The Minister or any officer designated by the President for the purposes of this section may, by notice served personally or by registered mail, require any person

(a)

to mark imported goods in accordance with the regulations made under section 19 of the Customs Tariff, within such reasonable time as may be stipulated in the notice, if there has been a failure to comply with section 35.01 with respect to the goods; or

(b)

to comply with section 35.01 in respect of any goods designated in the notice that will subsequently be imported by the person.

(3) [Repealed, 2001, c. 25, s. 30]

Goods imported from a NAFTA country

(4)

If a person imports goods of a prescribed class from a NAFTA country, that person is not liable to a penalty under section 109.1 unless

(a)

the person has previously failed to comply with section 35.01 in respect of imported goods and has been given notice pursuant to subsection (2);

(b)

the goods with respect to which there has been a failure to comply with section

35.01 or a notice given pursuant to subsection (2) have been released without being marked in the manner referred to in section 35.01; or

(c) the imported goods have been marked in a deceptive manner so as to mislead another person as to the country or geographic area of origin of the goods.

(5) [Repealed, 2001, c. 25, s. 30]

1993, c. 44, s. 83; 1997, c. 36, s. 156; 2001, c. 25, s. 30; 2005, c. 38, s. 67.

ORIGIN OF GOODS

Proof of origin

35.1 (1) Subject to any regulations made under subsection (4), proof of origin, in the prescribed form containing the prescribed information and containing or accompanied by the information, statements or proof required by any regulations made under subsection (4), shall be furnished in respect of all goods that are imported.

When furnished

(2) Proof of origin of goods shall be furnished under subsection (1) to an officer at such time and place and in such manner as may be prescribed.

Who furnishes

(3) Subject to any regulations made under subsection (4), proof of origin of goods shall be furnished under subsection (1) by the importer or owner thereof.

Regulations

(4)

The Governor in Council, on the recommendation of the Minister and the Minister of Finance, may make regulations

(a)

specifying persons or classes of persons who are authorized to furnish proof of origin of goods under subsection (1) in lieu of the importer or owner thereof and prescribing the circumstances in which and the conditions, if any, under which such persons or classes of persons are so authorized;

(b)

specifying information required to be contained in, or to accompany, the prescribed proof of origin form in addition to the prescribed information and specifying any statements or proof required to be contained therein or to accompany that form; and

(c)

exempting persons or goods, or classes thereof, from the requirements of subsection (1) subject to such conditions, if any, as are specified in the regulations.

Denial or withdrawal of preferential tariff treatment

(5) Preferential tariff treatment under a free trade agreement may be denied or withdrawn in respect of goods for which that treatment is claimed if the importer, owner or other person required to furnish proof of origin of the goods under this section fails to comply with any provision of this Act or the Customs Tariff, or any regulation made under either of those Acts, concerning that preferential tariff treatment.

(6) [Repealed, 1997, c. 14, s. 37]

1988, c. 65, s. 69; 1992, c. 28, s. 9; 1993, c. 44, s. 84; 1996, c. 33, s. 30; 1997, c. 14,

s. 37.

ABANDONED GOODS

Abandonment of goods to the Crown

36. (1) The owner of goods that have been imported but have not been released may, with the authorization of an officer and subject to the conditions set out in subsection (2), abandon the goods to Her Majesty in right of Canada.

Conditions of abandonment

(2) Any person who abandons goods to Her Majesty under subsection (1) is liable for

all reasonable expenses incurred by Her Majesty in the disposal of the goods where they are disposed of otherwise than by sale.

UNCLAIMED GOODS

Unclaimed goods

37. (1) Goods, other than goods of a prescribed class, that have not been removed from a customs office, sufferance warehouse or duty free shop within such period of time as may be prescribed may be deposited by an officer in a place of safe-keeping designated by the Minister for that purpose.

Unclaimed goods in a bonded warehouse

(2) Goods, other than goods of a class prescribed by regulations made under subparagraph 99(f)(xii) of the Customs Tariff, that have not been removed from a bonded warehouse within such time as may be prescribed by regulations made under

subparagraph 99(f)(xi) of that Act may be deposited by an officer in a place of safekeeping designated by the Minister for that purpose.

Extension of prescribed period

(3) The Minister may extend any period of time prescribed pursuant to subsection

(1) or (2) in respect of any particular goods.

Deeming provision

(4) A place of safe-keeping referred to in this section shall, for the purposes of this Act, be deemed to be a customs office.

R.S., 1985, c. 1 (2nd Supp.), s. 37; 1993, c. 25, s. 74; 1995, c. 41, s. 12; 1997, c. 36, s.

157.

Risk and storage charges

38. (1) Goods that are deposited in a place of safe-keeping under section 37 shall be kept there at the risk of the owner and importer of those goods, and the owner and importer are jointly and severally, or solidarily, liable for any storage charges that may be prescribed and any expenses incurred in moving the goods from the customs office, sufferance warehouse, bonded warehouse or duty free shop to the place of safe-keeping.

No removal until expenses paid

(2) No goods shall be removed by any person other than an officer from a place of safe-keeping referred to in section 37 until the charges and expenses referred to in subsection (1) have been paid.

1985, c. 1 (2nd Supp.), s. 38; 2004, c. 25, s. 121(E).

Unclaimed goods forfeit

39. (1) Goods that have not been removed from a place of safe-keeping referred to in section 37 within such period of time after they were deposited therein as may be prescribed are, at the termination of that period of time, forfeit.

Expenses of disposal

(2) The importer of goods that are forfeit under subsection (1) and the owner of those goods at the time of forfeiture are jointly and severally, or solidarily, liable for all reasonable expenses incurred by Her Majesty in right of Canada in the disposal of the goods if they are disposed of otherwise than by sale.

1985, c. 1 (2nd Supp.), s. 39; 2004, c. 25, s. 122(E).

GOODS OF A PRESCRIBED CLASS

Goods forfeit if not removed

39.1 (1) Goods of a prescribed class that have not been removed from a customs office, sufferance warehouse or duty free shop within such period of time as may be prescribed are, at the end of that period of time, forfeit.

Goods in bonded warehouse forfeit if not removed

(2) Goods of a class prescribed by regulations made under subparagraph 99(f)(xii) of the Customs Tariff that have not been removed from a bonded warehouse within

such period of time as may be prescribed by regulations made under subparagraph 99(f)(xi) of that Act are, at the end of that period of time, forfeit.

1993, c. 25, s. 75; 1995, c. 41, s. 13; 1997, c. 36, s. 158.

RECORDS

Importers’ records

40. (1) Every person who imports goods or causes goods to be imported for sale or for any industrial, occupational, commercial, institutional or other like use or any other use that may be prescribed shall keep at the person’s place of business in Canada or at any other place that may be designated by the Minister any records in respect of those goods in any manner and for any period of time that may be prescribed and shall, where an officer so requests, make them available to the officer, within the time specified by the officer, and answer truthfully any questions asked by the officer in respect of the records.

Minister’s request

(2) If, in the opinion of the Minister, a person has not kept records in accordance with subsection (1), the Minister may request that person to comply with that subsection in respect of the records.

Requirement to keep records

(3)

The following persons shall keep at their place of business or at any other place that may be designated by the Minister the prescribed records with respect to the prescribed goods, in the manner and for the period that may be prescribed, and shall, where an officer requests, make them available to the officer, within the time specified by the officer, and answer truthfully any questions asked by the officer in respect of the records:

(a)

a person who is granted a licence under section 24;

(b)

a person who receives goods authorized for delivery to the person’s place of business in the circumstances set out in paragraph 32(2)(b);

(c)

a person who is authorized under paragraph 32(6)(a) or subsection 32(7) to account for goods;

(d)

a person who is granted a certificate under section 90 of the Customs Tariff; and

(e)

a person who is granted a licence under section 91 of that Act.

Minister’s request

(4) Where, in the opinion of the Minister, a person has not kept records in respect of goods in accordance with subsection (3), the Minister may request that person to comply with that subsection in respect of the goods.

R.S., 1985, c. 1 (2nd Supp.), s. 40; 1992, c. 28, s. 10; 1993, c. 44, s. 85; 1995, c. 41, s. 15; 1997, c. 36, s. 159; 2001, c. 25, s. 31.

Detention of goods

41. (1) Any goods imported by or on behalf of a person to whom a request is made under subsection 40(2) at any time after the request is made may be detained by an officer at the expense of that person until the request is complied with.

Disposition of detained goods

(2) Goods that are detained under subsection (1) may be deposited in a place of

safe-keeping in accordance with subsection 37(1) as if they were unclaimed and may be dealt with thereafter under sections 37 to 39.

Definition of “dwelling-house”

42. (1) 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.

Inspections

(2) An officer, or an officer within a class of officers, designated by the President for

the purposes of this section, may at all reasonable times, for any purpose related to the administration or enforcement of this Act,

(a)

inspect, audit or examine any record of a person that relates or may relate to the information that is or should be in the records of the person or to any amount paid or payable under this Act;

(b)

examine property in an inventory of a person and any property or process of, or matter relating to, the person, an examination of which may assist the officer in determining the accuracy of the inventory of the person or in ascertaining the information that is or should be in the records of the person or any amount paid or payable by the person under this Act;

(c)

subject to subsection (3), enter any premises or place where any business is carried on, any property is kept, anything is done in connection with any business or any records are or should be kept; and

(d)

require the owner or manager of the property or business and any other person on the premises or place to give the officer all reasonable assistance and to answer

truthfully any question, and, for that purpose, require the owner, manager or other person designated by the owner or manager to attend at the premises or place with the officer.

Prior authorization

(3) If any premises or place referred to in paragraph (2)(c) is a dwelling-house, an

officer may not enter that dwelling-house without the consent of the occupant except under the authority of a warrant under subsection (4).

Warrant

(4) On ex parte application by the Minister, a judge may issue a warrant authorizing

an officer to enter a dwelling-house subject to the conditions that may be 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 premises or place referred to in paragraph (2)(c);

(b)

entry into the dwelling-house is necessary; and

(c)

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

Other access to document

(5) If the judge is not satisfied that entry into that dwelling-house is necessary for any purpose relating to the administration or enforcement of this Act but is satisfied

that access to a document or property that is or should be kept in the dwelling-house has been or may be expected to be refused, the judge may

(a)

order the occupant of the dwelling-house to provide the officer with reasonable access to any document or property; and

(b)

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

R.S., 1985, c. 1 (2nd Supp.), s. 42; 2001, c. 25, s. 32; 2005, c. 38, s. 68.

VERIFICATIONS

Methods of verification

42.01 An officer, or an officer within a class of officers, designated by the President for the purposes of this section may conduct a verification of origin (other than a verification of origin referred to in section 42.1), verification of tariff classification or verification of value for duty in respect of imported goods in the manner that is prescribed and may for that purpose at all reasonable times enter any prescribed premises.

1997, c. 36, s. 160; 2001, c. 25, s. 33; 2005, c. 38, s. 69.

VERIFICATIONS UNDER A FREE TRADE AGREEMENT

Conduct of Verification Methods of verification

42.1 (1) Any officer, or any officer within a class of officers, designated by the President for the purposes of this section, or any person, or any person within a class of persons, designated by the President to act on behalf of such an officer, may, subject to the prescribed conditions,

(a)

conduct a verification of origin of goods for which preferential tariff treatment under a free trade agreement, other than CEFTA, is claimed

(i)

by entering any prescribed premises or place at any reasonable time, or

(ii)

in the prescribed manner; or

(b)

enter any prescribed premises or place at any reasonable time to verify the amount, if any, of

(i)

a relief under section 89 of the Customs Tariff from the payment of any duties payable in respect of imported goods that are subsequently exported to a NAFTA country, or

(ii)

a drawback under section 113 of the Customs Tariff of duties paid in respect of imported goods that are subsequently exported to a NAFTA country.

Method of verification under CEFTA

(1.1) Any officer, or any officer within a class of officers, designated by the President for the purposes of this section, or any person, or any person within a class of persons, designated by the President to act on behalf of such an officer, may, subject to any prescribed conditions, conduct a verification of origin of goods for which preferential tariff treatment under CEFTA is claimed by requesting in writing that the customs administration of the EFTA state of export conduct a verification and provide an opinion as to whether the goods are originating within the meaning of Annex C of CEFTA.

Withdrawal of preferential tariff treatment

(2) If an exporter or producer of goods that are subject to a verification of origin under paragraph (1)(a) fails to comply with the prescribed requirements or, in the case of a verification of origin under subparagraph (1)(a)(i), does not consent to the verification of origin in the prescribed manner and within the prescribed time, preferential tariff treatment under a free trade agreement, other than CEFTA, may be denied or withdrawn from the goods.

Withdrawal of preferential tariff treatment under CEFTA

(3)

Preferential tariff treatment under CEFTA may be denied or withdrawn from the goods

(a)

if the EFTA state of export fails to conduct a verification or provide an opinion as to whether the goods are originating;

(b)

if an officer or other person designated under subsection (1.1) is unable to determine whether the goods are originating; or

(c)

in any other prescribed circumstances.

1993, c. 44, s. 86; 1995, c. 41, s. 16; 1997, c. 14, s. 38, c. 36, s. 161; 2005, c. 38, s. 70; 2009, c. 6, s. 24.

Statement of Origin Statement of origin

42.2 (1) On completion of a verification of origin under paragraph 42.1(1)(a), an officer designated under subsection 42.1(1) shall provide the exporter or producer whose goods are subject to the verification of origin with a statement as to whether the goods are eligible, under the Customs Tariff, for the preferential tariff treatment that was claimed.

Basis of statement

(2) A statement referred to in subsection (1) must include any findings of fact or law on which it was based.

1993, c. 44, s. 86; 1997, c. 14, s. 38, c. 36, s. 162.

Effective Date of Re-determination of Origin Definition of “customs administration”

42.3 (1) In this section,“customs administration” has the meaning assigned to that expression by Article 514 of NAFTA, Article E-14 of CCFTA or Article V.14 of CCRFTA, as the case may be.

Effective date of redetermination or further redetermination of origin of goods

(2)

Subject to subsection (4), a redetermination or further redetermination of origin does not take effect until notice of it is given to the importer of the goods and any person who completed and signed a Certificate of Origin for the goods if the result of the redetermination or further redetermination of origin made under subsection 59(1) in respect of goods for which preferential tariff treatment under NAFTA, CCFTA or CCRFTA is claimed and that are the subject of a verification of origin under this Act is that

(a)

the goods are not eligible for that preferential tariff treatment on the basis of the tariff classification or value of one or more materials used in their production; and

(b)

that tariff classification or value differs from the tariff classification or value applied to those materials by the NAFTA country from which the goods were exported, from Chile or from Costa Rica, as the case may be.

Limitation

(3)

A redetermination or further redetermination of origin referred to in subsection

(2)

shall not be applied to goods imported before the date on which the notice was

given if the customs administration of the NAFTA country from which the goods were exported, of Chile or of Costa Rica, as the case may be, has, before that date,

(a)

given an advance ruling under Article 509 of NAFTA, Article E-09 of CCFTA or Article V.9 of CCRFTA, as the case may be, or given another ruling referred to in paragraph 12 of Article 506 of NAFTA, paragraph 12 of Article E-06 of CCFTA or paragraph 15 of Article V.6 of CCRFTA, as the case may be, on the tariff classification or value of the materials referred to in subsection (2); or

(b)

given consistent treatment with respect to the tariff classification or value of the materials referred to in subsection (2) on their importation into the NAFTA country, Chile or Costa Rica, as the case may be.

Postponement of effective date

(4) The date on which a redetermination or further redetermination of origin referred to in subsection (2) takes effect shall be postponed for a period not exceeding ninety days if the importer of the goods that are the subject of the redetermination or further redetermination or any person who completed and signed a Certificate of Origin for the goods establishes to the satisfaction of the Minister that the importer or the person, as the case may be, has relied in good faith, to the detriment of the importer or person, on the tariff classification or value applied to the materials referred to in that subsection by the customs administration of the NAFTA country from which the goods were exported, of Chile or of Costa Rica, as the case may be.

Effect of detrimental reliance under CEFTA

(5) If an exporter of goods from an EFTA state demonstrates, to the satisfaction of the Minister, that it has relied, in good faith and to its detriment, on a ruling made by the Agency or the customs administration of an EFTA state with respect to the tariff classification or value of a non-originating material used in the production of goods, a redetermination of origin by the Agency in respect of goods for which preferential

tariff treatment under CEFTA is claimed shall apply only to importations of the goods made after the date of the redetermination.

1993, c. 44, s. 86; 1997, c. 14, s. 38, c. 36, s. 163; 2001, c. 25, s. 34(F), c. 28, s. 27; 2009, c. 6, s. 25.

Denial or Withdrawal of Benefit of Preferential Tariff Treatment under NAFTA, CCFTA, CCRFTA or CPFTA Definition of “identical goods”

42.4 (1) In this section, “identical goods” has the meaning assigned to that expression by Article 514 of NAFTA, Article E-14 of CCFTA, Article V.14 of CCRFTA or Article 423 of CPFTA, as the case may be.

Denial or withdrawal of benefit — NAFTA country, Chile, Costa Rica or Peru

(2) Notwithstanding section 24 of the Customs Tariff, the Minister may, subject to the prescribed conditions, deny or withdraw preferential tariff treatment under NAFTA, CCFTA, CCRFTA or CPFTA in respect of goods for which that treatment is claimed if the exporter or producer of the goods has made false representations that identical goods exported or produced by that exporter or producer and for which that treatment was claimed were eligible for that treatment.

1993, c. 44, s. 86; 1997, c. 14, s. 38, c. 36, s. 164; 2001, c. 28, s. 27; 2009, c. 16, s.

32.

42.5 and 42.6 [Repealed, 1997, c. 14, s. 38]

Production of Documents Production of records

43. (1) The Minister may, for any purpose related to the administration or enforcement of this Act, including the collection of any amount owing under this Act by any person, by notice served personally or sent by registered or certified mail, require any person to provide any record at a place specified by the Minister and within any reasonable time that may be stipulated in the notice.

Compliance

(2) Any person who is required to provide any records, books, letters, accounts, invoices, statements or other documents or information under subsection (1) shall,

notwithstanding any other law to the contrary but subject to subsection (3), do so as required.

Application of section 232 of the Income Tax Act

(3) The definitions “lawyer” and “solicitor-client privilege” in subsection 232(1) of the

Income Tax Act, and subsection 232(2) of that Act, apply with respect to a requirement under subsection (1) as if the reference in subsection 232(2) to section 231.2 of that Act were a reference to this section.

R.S., 1985, c. 1 (2nd Supp.), s. 43; 2000, c. 30, s. 160; 2001, c. 25, s. 35.

ADVANCE RULINGS

Advance rulings

43.1 (1) Any officer, or any officer within a class of officers, designated by the President for the purposes of this section shall, before goods are imported, on application by any member of a prescribed class that is made within the prescribed time, in the prescribed manner and in the prescribed form containing the prescribed information, give an advance ruling with respect to

(a)

whether the goods qualify as originating goods and are entitled to the benefit of preferential tariff treatment under a free trade agreement;

(b)

in the case of goods exported from a NAFTA country, from Chile, from Costa Rica, from an EFTA state or from Peru, any matter, other than those referred to in paragraphs (a) to (c), concerning those goods that is set out in paragraph 1 of Article 509 of NAFTA, in paragraph 1 of Article E-09 of CCFTA, in paragraph 1 of Article V.9 or paragraph 10 of Article IX.2 of CCRFTA, in Article 28(2) of Annex C of CEFTA or in paragraph 1 of Article 419 of CPFTA, as the case may be; and

(c)

the tariff classification of the goods.

Regulations

(2)

The Governor in Council may make regulations respecting advance rulings, including regulations respecting

(a)

the application of an advance ruling;

(b)

the modification or revocation of an advance ruling, including whether the modification or revocation applies retroactively;

(c)

the authority to request supplementary information in respect of an application for an advance ruling; and

(d)

the circumstances in which the issuance of advance rulings may be declined or postponed.

1993, c. 44, s. 87; 1996, c. 33, s. 33; 1997, c. 14, s. 39; 2001, c. 25, s. 36, c. 28, s. 28; 2004, c. 16, s. 6(F); 2005, c. 38, s. 71; 2009, c. 6, s. 26, c. 16, ss. 33, 56.

PART III

CALCULATION OF DUTY

DUTIES BASED ON PERCENTAGE RATES

Valuation for Duty Ad valorem rates of duty

44. If duties, other than duties or taxes levied under the Excise Act, 2001 or the Excise Tax Act, are imposed on goods at a percentage rate, such duties shall be calculated by applying the rate to a value determined in accordance with sections 45 to 55.

R.S., 1985, c. 1 (2nd Supp.), s. 44; 2002, c. 22, s. 335.

Interpretation Definitions

45. (1) In this section and sections 46 to 55,

“computed value”

« valeur reconstituée » “computed value” means, in respect of goods, the value of the goods determined in accordance with section 52;

“country of export”

« pays d’exportation » “country of export” means, in respect of goods, the country from which the goods are shipped directly to Canada;

“deductive value”

« valeur de référence » “deductive value” means, in respect of goods, the value of the goods determined in accordance with subsection 51(2);

“goods of the same class or kind”

« marchandises de même nature ou de même espèce » “goods of the same class or kind”, in relation to goods being appraised, means imported goods that

(a)

are within a group or range of imported goods produced by a particular industry or industry sector that includes identical goods and similar goods in relation to the goods being appraised, and

(b)

for the purposes of

(i)

section 51, were produced in any country and exported from any country, and

(ii)

section 52, were produced in and exported from the same country as the country in and from which the goods being appraised were produced and exported;

“identical goods”

« marchandises identiques » “identical goods”, in relation to goods being appraised, means imported goods that

(a)

are the same in all respects, including physical characteristics, quality and reputation, as the goods being appraised, except for minor differences in appearance that do not affect the value of the goods,

(b)

were produced in the same country as the country in which the goods being appraised were produced, and

(c)

were produced by or on behalf of the person by or on behalf of whom the goods

being appraised were produced, but does not include imported goods where engineering, development work, art work, design work, plans or sketches undertaken in Canada were supplied, directly or indirectly, by the purchaser of those imported goods free of charge or at a reduced cost for use in connection with the production and sale for export of those imported goods; “price paid or payable”

« prix payé ou à payer » “price paid or payable”, in respect of the sale of goods for export to Canada, means the aggregate of all payments made or to be made, directly or indirectly, in respect of the goods by the purchaser to or for the benefit of the vendor;

“produce” « produit » “produce” includes grow, manufacture and mine;

“purchaser in Canada” « acheteur au Canada » “purchaser in Canada” has the meaning assigned by the regulations;

“similar goods”

« marchandises semblables » “similar goods”, in relation to goods being appraised, means imported goods that

(a)

closely resemble the goods being appraised in respect of their component materials and characteristics,

(b)

are capable of performing the same functions as, and of being commercially interchangeable with, the goods being appraised,

(c)

were produced in the same country as the country in which the goods being appraised were produced, and

(d)

were produced by or on behalf of the person by or on behalf of whom the goods

being appraised were produced, but does not include imported goods where engineering, development work, art work, design work, plans or sketches undertaken in Canada were supplied, directly or indirectly, by the purchaser of those imported goods free of charge or at a reduced cost for use in connection with the production and sale for export of those imported goods;

“sufficient information”

« renseignements suffisants » “sufficient information”, in respect of the determination of any amount, difference or adjustment, means objective and quantifiable information that establishes the accuracy of the amount, difference or adjustment;

“transaction value”

« valeur transactionnelle » “transaction value”, in respect of goods, means the value of the goods determined in accordance with subsection 48(4).

Goods deemed to be identical goods or similar goods

(2)

For the purposes of this section and sections 46 to 55, where there are no identical goods or similar goods, as the case may be, in relation to goods being appraised but there are goods that would be identical goods or similar goods, as the case may be, if they were produced by or on behalf of the person by or on behalf of whom the goods being appraised were produced, those goods shall be deemed to be identical goods or similar goods, as the case may be.

(3)

For the purposes of sections 46 to 55, persons are related to each other if

(a)

they are individuals connected by blood relationship, marriage, common-law partnership or adoption within the meaning of subsection 251(6) of the Income Tax Act;

(b)

one is an officer or director of the other;

(c)

each such person is an officer or director of the same two corporations, associations, partnerships or other organizations;

(d)

they are partners;

(e)

one is the employer of the other;

(f)

they directly or indirectly control or are controlled by the same person;

(g)

one directly or indirectly controls or is controlled by the other;

(h)

any other person directly or indirectly owns, holds or controls five per cent or more of the outstanding voting stock or shares of each such person; or

(i)

one directly or indirectly owns, holds or controls five per cent or more of the outstanding voting stock or shares of the other.

Related persons

R.S., 1985, c. 1 (2nd Supp.), s. 45; 1995, c. 41, s. 17; 2000, c. 12, s. 96.

Determination of Value for Duty Determination of value for duty

46. The value for duty of imported goods shall be determined in accordance with sections 47 to 55.

Order of Consideration of Methods of Valuation Primary basis of appraisal

1. (1) The value for duty of goods shall be appraised on the basis of the transaction value of the goods in accordance with the conditions set out in section

Subsidiary bases of appraisal

(2) Where the value for duty of goods is not appraised in accordance with subsection (1), it shall be appraised on the basis of the first of the following values, considered in the order set out herein, that can be determined in respect of the goods and that

can, under sections 49 to 52, be the basis on which the value for duty of the goods is appraised:

(a)

the transaction value of identical goods that meets the requirements set out in section 49;

(b)

the transaction value of similar goods that meets the requirements set out in section 50;

(c)

the deductive value of the goods; and

(d)

the computed value of the goods.

Request of importer

(3) Notwithstanding subsection (2), on the written request of the importer of any

goods being appraised made prior to the commencement of the appraisal of those goods, the order of consideration of the values referred to in paragraphs (2)(c) and (d) shall be reversed.

Residual basis of appraisal

(4) Where the value for duty of goods is not appraised on the basis of any of the values referred to in paragraphs (2)(a) to (d), the value for duty of those goods shall

be appraised under section 53.

Transaction Value of the Goods Transaction value as primary basis of appraisal

48. (1) Subject to subsections (6) and (7), the value for duty of goods is the transaction value of the goods if the goods are sold for export to Canada to a purchaser in Canada and the price paid or payable for the goods can be determined and if

(a)

there are no restrictions respecting the disposition or use of the goods by the purchaser thereof, other than restrictions that

(i)

are imposed by law,

(ii)

limit the geographical area in which the goods may be resold, or

(iii) do not substantially affect the value of the goods;

(b)

the sale of the goods by the vendor to the purchaser or the price paid or payable for the goods is not subject to some condition or consideration, with respect to the goods, in respect of which a value cannot be determined;

(c)

when any part of the proceeds of any subsequent resale, disposal or use of the goods by the purchaser is to accrue, directly or indirectly, to the vendor, the price paid or payable for the goods includes the value of that part of the proceeds or the price is adjusted in accordance with paragraph (5)(a); and

(d)

the purchaser and the vendor of the goods are not related to each other at the time the goods are sold for export or, where the purchaser and the vendor are related to each other at that time,

(i)

their relationship did not influence the price paid or payable for the goods, or

(ii)

the importer of the goods demonstrates that the transaction value of the goods meets the requirement set out in subsection (3).

Procedure in application of paragraph (1)(d)

(2) In the application of paragraph (1)(d), where the purchaser and the vendor of goods being appraised are related to each other at the time the goods are sold for export and the officer who is appraising the value for duty of the goods has grounds to believe that the requirement set out in subparagraph (1)(d)(i) is not met, the officer shall notify the importer of the goods of such grounds and, on the written request of the importer, the notification shall be in writing.

Requirement for accepting transaction value where purchaser and vendor related

(3)

For the purposes of subparagraph (1)(d)(ii), the transaction value of goods being appraised shall, taking into consideration any relevant factors including, without limiting the generality of the foregoing, such factors and differences as may be prescribed, closely approximate one of the following values that is in respect of identical goods or similar goods exported at the same or substantially the same time as the goods being appraised and is the value for duty of the goods to which it relates:

(a)

the transaction value of identical goods or similar goods in a sale of those goods for export to Canada between a vendor and purchaser who are not related to each other at the time of the sale;

(b)

the deductive value of identical goods or similar goods; or

(c)

the computed value of identical goods or similar goods.

Determination of transaction value

(4) The transaction value of goods shall be determined by ascertaining the price paid

or payable for the goods when the goods are sold for export to Canada and adjusting the price paid or payable in accordance with subsection (5).

Adjustment of price paid or payable

(5)

The price paid or payable in the sale of goods for export to Canada shall be adjusted

(a)

by adding thereto amounts, to the extent that each such amount is not already included in the price paid or payable for the goods, equal to

(i)

commissions and brokerage in respect of the goods incurred by the purchaser thereof, other than fees paid or payable by the purchaser to his agent for the service of representing the purchaser abroad in respect of the sale,

(ii)

the packing costs and charges incurred by the purchaser in respect of the goods, including the cost of cartons, cases and other containers and coverings that are treated for customs purposes as being part of the imported goods and all expenses of packing incident to placing the goods in the condition in which they are shipped to Canada,

(iii) the value of any of the following goods and services, determined in the manner prescribed, that are supplied, directly or indirectly, by the purchaser of the goods free of charge or at a reduced cost for use in connection with the production and sale for export of the imported goods, apportioned to the imported goods in a reasonable manner and in accordance with generally accepted accounting principles:

(A)

materials, components, parts and other goods incorporated in the imported goods,

(B)

tools, dies, moulds and other goods utilized in the production of the imported goods,

(C)

any materials consumed in the production of the imported goods, and

(D)

engineering, development work, art work, design work, plans and sketches undertaken elsewhere than in Canada and necessary for the production of the imported goods,

(iv)

royalties and licence fees, including payments for patents, trade-marks and copyrights, in respect of the goods that the purchaser of the goods must pay, directly or indirectly, as a condition of the sale of the goods for export to Canada, exclusive of charges for the right to reproduce the goods in Canada,

(v)

the value of any part of the proceeds of any subsequent resale, disposal or use of the goods by the purchaser thereof that accrues or is to accrue, directly or indirectly, to the vendor, and

(vi)

the cost of transportation of, the loading, unloading and handling charges and other charges and expenses associated with the transportation of, and the cost of insurance relating to the transportation of, the goods to the place within the country of export from which the goods are shipped directly to Canada;

(b)

by deducting therefrom amounts, to the extent that each such amount is included in the price paid or payable for the goods, equal to

(i)

the cost of transportation of, the loading, unloading and handling charges and other charges and expenses associated with the transportation of, and the cost of insurance relating to the transportation of, the goods from the place within the country of export from which the goods are shipped directly to Canada, and

(ii)

any of the following costs, charges or expenses if the cost, charge or expense is identified separately from the price paid or payable for the goods:

(A)

any reasonable cost, charge or expense that is incurred for the

construction, erection, assembly or maintenance of, or technical assistance provided in respect of, the goods after the goods are imported, and

(B)

any duties and taxes paid or payable by reason of the importation of the goods or sale of the goods in Canada, including, without limiting the generality of the foregoing, any duties or taxes levied on the goods under the Customs Tariff, the Excise Act, 2001, the Excise Tax Act, the Special Import Measures Act or any other law relating to customs; and

(c)

by disregarding any rebate of, or other decrease in, the price paid or payable for the goods that is effected after the goods are imported.

Effect of absence of sufficient information

(6) Where there is not sufficient information to determine any of the amounts

required to be added to the price paid or payable in respect of any goods being appraised, the value for duty of the goods shall not be appraised under this section.

Where information inaccurate

(7) Where an officer who is appraising the value for duty of goods believes on reasonable grounds that the information submitted in support of the transaction value of the goods as determined under subsection (4) is inaccurate, the officer shall determine, in accordance with the prescribed procedure, that the value for duty of the goods shall not be appraised under this section.

R.S., 1985, c. 1 (2nd Supp.), s. 48; 1994, c. 47, s. 71; 1995, c. 41, s. 18; 2002, c. 22, s. 336; 2009, c. 10, s. 7.

Transaction Value of Identical Goods Transaction value of identical goods as value for duty

49. (1) Subject to subsections (2) to (5), where the value for duty of goods is not appraised under section 48, the value for duty of the goods is, if it can be determined, the transaction value of identical goods, in a sale of those goods for export to Canada, if that transaction value is the value for duty of the identical goods and the identical goods were exported at the same or substantially the same time as the goods being appraised and were sold under the following conditions:

(a)

at the same or substantially the same trade level as the goods being appraised; and

(b)

in the same or substantially the same quantities as the goods being appraised.

(2)

Where the value for duty of goods being appraised cannot be determined under subsection (1) because identical goods were not sold under the conditions described

Where identical goods sold under different conditions

in paragraphs (1)(a) and (b), there shall be substituted therefor, in the application of subsection (1), identical goods sold under any of the following conditions:

(a)

at the same or substantially the same trade level as the goods being appraised but in different quantities;

(b)

at a trade level different from that of the goods being appraised but in the same or substantially the same quantities; or

(c)

at a trade level different from that of the goods being appraised and in different quantities.

Adjustment of transaction value of identical goods

(3) For the purposes of determining the value for duty of goods being appraised

under subsection (1), the transaction value of identical goods shall be adjusted by adding thereto or deducting therefrom, as the case may be, amounts to account for

(a)

commercially significant differences between the costs, charges and expenses referred to in subparagraph 48(5)(a)(vi) in respect of the identical goods and those costs, charges and expenses in respect of the goods being appraised that are attributable to differences in distances and modes of transport; and

(b)

if the transaction value is in respect of identical goods sold under the conditions described in any of paragraphs (2)(a) to (c), differences in the trade levels of the identical goods and the goods being appraised or the quantities in which the identical goods were sold and the goods being appraised were imported or both, as the case may be.

Effect of absence of sufficient information

(4) Where there is not sufficient information to determine any amount referred to in subsection (3) or the adjustment therefor in relation to the transaction value of identical goods, the value for duty of the goods being appraised shall not be appraised on the basis of that transaction value under this section.

Selection of lowest transaction value of identical goods

(5) Where, in relation to goods being appraised, there are two or more transaction values of identical goods that meet all the requirements set out in subsections (1) and (3) or, where there is no such transaction value but there are two or more transaction values of identical goods sold under the conditions described in any of paragraphs (2)(a) to (c) that meet all the requirements set out in this section that are applicable by virtue of subsection (2), the value for duty of the goods being appraised shall be determined on the basis of the lowest such transaction value.

R.S., 1985, c. 1 (2nd Supp.), s. 49; 2009, c. 10, s. 8.

Transaction Value of Similar Goods Transaction value of similar goods as value for duty

50. (1) Subject to subsections (2) and 49(2) to (5), where the value for duty of goods is not appraised under section 48 or 49, the value for duty of the goods is, if it can be determined, the transaction value of similar goods, in a sale of those goods for export to Canada, if that transaction value is the value for duty of the similar goods and the similar goods were exported at the same or substantially the same time as the goods being appraised and were sold under the following conditions:

(a)

at the same or substantially the same trade level as the goods being appraised; and

(b)

in the same or substantially the same quantities as the goods being appraised.

Application of section 49

(2) Subsections 49(2) to (5) apply to this section in respect of similar goods and

wherever in those subsections the expression “identical goods” is referred to, there shall be substituted therefor the expression “similar goods”.

R.S., 1985, c. 1 (2nd Supp.), s. 50; 2009, c. 10, s. 9.

Deductive Value Deductive value as value for duty

51. (1) Subject to subsections (5) and 47(3), where the value for duty of goods is not appraised under sections 48 to 50, the value for duty of the goods is the deductive value of the goods if it can be determined.

Determination of deductive value

(2) The deductive value of goods being appraised is

(a)

where the goods being appraised, identical goods or similar goods are sold in Canada in the condition in which they were imported at the same or substantially the same time as the time of importation of the goods being appraised, the price per unit, determined in accordance with subsection (3) and adjusted in accordance with subsection (4), at which the greatest number of units of the goods being appraised, identical goods or similar goods are so sold;

(b)

where the goods being appraised, identical goods or similar goods are not sold in Canada in the circumstances described in paragraph (a) but are sold in Canada in the condition in which they were imported before the expiration of ninety days after the time of importation of the goods being appraised, the price per unit, determined in accordance with subsection (3) and adjusted in accordance with subsection (4), at which the greatest number of units of the goods being appraised, identical goods or similar goods are so sold at the earliest date after the time of importation of the goods being appraised; or

(c)

where the goods being appraised, identical goods or similar goods are not sold in Canada in the circumstances described in paragraph (a) or (b) but the goods being appraised, after being assembled, packaged or further processed in Canada, are sold in Canada before the expiration of one hundred and eighty days after the time of importation thereof and the importer of the goods being appraised requests that this paragraph be applied in the determination of the value for duty of those goods, the price per unit, determined in accordance with subsection (3) and adjusted in accordance with subsection (4), at which the greatest number of units of the goods being appraised are so sold.

Price per unit

(3) For the purposes of subsection (2), the price per unit, in respect of goods being appraised, identical goods or similar goods, shall be determined by ascertaining the

unit price, in respect of sales of the goods at the first trade level after importation thereof to persons who

(a)

are not related to the persons from whom they buy the goods at the time the goods are sold to them, and

(b)

have not supplied, directly or indirectly, free of charge or at a reduced cost for use in connection with the production and sale for export of the goods any of the goods or services referred to in subparagraph 48(5)(a)(iii), at which the greatest number of units of the goods is sold where, in the opinion of the Minister or any person authorized by him, a sufficient number of such sales have been made to permit a determination of the price per unit of the goods.

Adjustment of price per unit

(4) For the purposes of subsection (2), the price per unit, in respect of goods being

appraised, identical goods or similar goods, shall be adjusted by deducting therefrom an amount equal to the aggregate of

(a)

an amount, determined in the manner prescribed, equal to

(i)

the amount of commission generally earned on a unit basis, or

(ii)

the amount for profit and general expenses, including all costs of marketing the goods, considered together as a whole, that is generally reflected on a unit basis

in connection with sales in Canada of goods of the same class or kind as those goods,

(b)

the costs, charges and expenses in respect of the transportation and insurance of the goods within Canada and the costs, charges and expenses associated therewith that are generally incurred in connection with sales in Canada of the goods being appraised, identical goods or similar goods, to the extent that an amount for such costs, charges and expenses is not deducted in respect of general expenses under paragraph (a),

(c)

the costs, charges and expenses referred to in subparagraph 48(5)(b)(i), incurred in respect of the goods, to the extent that an amount for such costs, charges and expenses is not deducted in respect of general expenses under paragraph (a),

(d)

any duties and taxes referred to in clause 48(5)(b)(ii)(B) in respect of the goods, to the extent that an amount for such duties and taxes is not deducted in respect of general expenses under paragraph (a), and

(e)

where paragraph (2)(c) applies, the amount of the value added to the goods that is attributable to the assembly, packaging or further processing in Canada of the goods.

Rejection of deductive value

(5) Where there is not sufficient information to determine an amount referred to in

paragraph (4)(e) in respect of any goods being appraised, the value for duty of the goods shall not be appraised under paragraph (2)(c).

Definition of “time of importation”

(6) In this section, “time of importation” means

(a)

in respect of goods other than those to which paragraph 32(2)(b) applies, the date on which an officer authorizes the release of the goods under this Act or the date on which their release is authorized by any prescribed means; and

(b)

in respect of goods to which paragraph 32(2)(b) applies, the date on which the goods are received at the place of business of the importer, owner or consignee.

R.S., 1985, c. 1 (2nd Supp.), s. 51; 2001, c. 25, s. 37.

Computed Value Computed value as value for duty

52. (1) Subject to subsection 47(3), where the value for duty of goods is not appraised under sections 48 to 51, the value for duty of the goods is the computed value of the goods if it can be determined.

Determination of computed value

(2)

The computed value of goods being appraised is the aggregate of amounts equal to

(a)

subject to subsection (3), the costs, charges and expenses incurred in respect of, or the value of,

(i)

materials employed in producing the goods being appraised, and

(ii)

the production or other processing of the goods being appraised,

determined in the manner prescribed; and

(b) the amount, determined in the manner prescribed, for profit and general expenses considered together as a whole, that is generally reflected in sales for export to Canada of goods of the same class or kind as the goods being appraised made by producers in the country of export.

Amounts included

(3)

Without limiting the generality of paragraph (2)(a), the costs, charges, expenses and value referred to in that paragraph include:

(a)

the costs, charges and expenses referred to in subparagraph 48(5)(a)(ii);

(b)

the value of any of the goods and services referred to in subparagraph 48(5)(a)(iii), determined and apportioned to the goods being appraised as referred to in that subparagraph, whether or not such goods and services have been supplied free of charge or at a reduced cost; and

(c)

the costs, charges and expenses incurred by the producer in respect of engineering, development work, art work, design work, plans or sketches undertaken in Canada that were supplied, directly or indirectly, by the purchaser of the goods being appraised for use in connection with the production and sale for export of those goods, apportioned to the goods being appraised as referred to in subparagraph 48(5)(a)(iii).

Definition of “general expenses”

(4) For the purposes of this section, “general expenses” means the direct and indirect costs, charges and expenses of producing and selling goods for export, other than the costs, charges and expenses referred to in paragraph (2)(a) and subsection (3).

Residual Method

Residual basis of appraisal

53. Where the value for duty of goods is not appraised under sections 48 to 52, it shall be appraised on the basis of

(a)

a value derived from the method, from among the methods of valuation set out in sections 48 to 52, that, when applied in a flexible manner to the extent necessary to arrive at a value for duty of the goods, conforms closer to the requirements with respect to that method than any other method so applied; and

(b)

information available in Canada.

General Goods exported to Canada through another country

54. For the purposes of sections 45 to 55, where goods are exported to Canada from any country but pass in transit through another country, the goods shall, subject to such terms and conditions as may be prescribed, be deemed to be shipped directly to Canada from the first mentioned country.

R.S., 1985, c. 1 (2nd Supp.), s. 54; 2001, c. 25, s. 38(F).

Value for duty in Canadian currency

55. The value for duty of imported goods shall be computed in Canadian currency in accordance with regulations made under the Currency Act.

Informing importer of determination of value

56. The importer of any goods, on his written request, shall be informed in writing of the manner in which the value for duty of the goods was determined.

DUTIES BASED ON SPECIFIC QUANTITIES OR SPECIFIC VALUES

Specific quantities or specific values

57. Where duties are imposed on goods according to a specific quantity or a specific value, such duties shall be deemed to apply in the same proportion to any larger or smaller quantity or value, and to any fractional part of such specific quantity or value.

MARKING DETERMINATION

Marking determination

57.01 (1) Any officer, or any officer within a class of officers, designated by the President for the purposes of this section may, at or before the time goods imported from a NAFTA country are accounted for under subsection 32(1), (3) or (5), in the prescribed manner and subject to the prescribed conditions, make a determination as to whether the goods have been marked in the manner referred to in section

35.01.

Deemed determination

(2) If an officer does not make a determination under subsection (1) in respect of goods imported from a NAFTA country at or before the time the goods are accounted for under subsection 32(1), (3) or (5), a determination as to whether the goods have been marked in the manner referred to in section 35.01 shall be deemed to have been made in accordance with any representations that have been made in respect of the marking of the goods by the person who accounted for the goods.

1993, c. 44, s. 88; 1997, c. 36, s. 165; 2001, c. 25, s. 39; 2005, c. 38, s. 72.

DETERMINATION, RE-DETERMINATION AND FURTHER RE-DETERMINATION OF ORIGIN, TARIFF

CLASSIFICATION AND VALUE FOR DUTY OF IMPORTED GOODS

Application of sections 58 to 70

57.1 For the purposes of sections 58 to 70,

(a)

the origin of imported goods is to be determined in accordance with section 16 of the Customs Tariff and the regulations under that section;

(b)

the tariff classification of imported goods is to be determined in accordance with sections 10 and 11 of the Customs Tariff, unless otherwise provided in that Act; and

(c)

the value for duty of imported goods is to be determined in accordance with sections 47 to 55 of this Act and section 87 of the Customs Tariff.

1988, c. 65, s. 70; 1997, c. 36, s. 166; 2001, c. 25, s. 40.

57.2 [Repealed, 1997, c. 36, s. 166]

Determination by officer

58. (1) Any officer, or any officer within a class of officers, designated by the President for the purposes of this section, may determine the origin, tariff classification and value for duty of imported goods at or before the time they are accounted for under subsection 32(1), (3) or (5).

Deemed determination

(2) If the origin, tariff classification and value for duty of imported goods are not determined under subsection (1), the origin, tariff classification and value for duty of the goods are deemed to be determined, for the purposes of this Act, to be as declared by the person accounting for the goods in the form prescribed under

paragraph 32(1)(a). That determination is deemed to be made at the time the goods are accounted for under subsection 32(1), (3) or (5).

Review of determination

(3) A determination made under this section is not subject to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by sections 59 to 61.

R.S., 1985, c. 1 (2nd Supp.), s. 58; 1992, c. 28, s. 11; 1997, c. 36, s. 166; 2005, c. 38,

s. 73.

Re-determination or further re-determination

59. (1) An officer, or any officer within a class of officers, designated by the President for the purposes of this section may

(a)

in the case of a determination under section 57.01 or 58, re-determine the origin, tariff classification, value for duty or marking determination of any imported goods at any time within

(i)

four years after the date of the determination, on the basis of an audit or examination under section 42, a verification under section 42.01 or a verification of origin under section 42.1, or

(ii)

four years after the date of the determination, if the Minister considers it advisable to make the re-determination; and

(b)

further re-determine the origin, tariff classification or value for duty of imported goods, within four years after the date of the determination or, if the Minister deems

it advisable, within such further time as may be prescribed, on the basis of an audit or examination under section 42, a verification under section 42.01 or a verification of origin under section 42.1 that is conducted after the granting of a refund under paragraphs 74(1)(c.1), (c.11), (e), (f) or (g) that is treated by subsection 74(1.1) as a re-determination under paragraph (a) or the making of a correction under section

32.2 that is treated by subsection 32.2(3) as a re-determination under paragraph (a).

Notice requirement

(2) An officer who makes a determination under subsection 57.01(1) or 58(1) or a re-determination or further re-determination under subsection (1) shall without delay give notice of the determination, re-determination or further re-determination, including the rationale on which it is made, to the prescribed persons.

Payment or refund

(3)

Every prescribed person who is given notice of a determination, re-determination or further re-determination under subsection (2) shall, in accordance with that decision,

(a)

pay any amount owing, or additional amount owing, as the case may be, as duties in respect of the goods or, if a request is made under section 60, pay that amount or give security satisfactory to the Minister in respect of that amount and any interest owing or that may become owing on that amount; or

(b)

be given a refund of any duties, or a refund of any duties and interest paid (other than interest that was paid because duties were not paid when required by subsection 32(5) or section 33), in excess of the duties owing in respect of the goods.

Amounts payable immediately

(4) Any amount owing by or to a person under subsection (3) or 66(3) in respect of goods, other than an amount in respect of which security is given, is payable immediately, whether or not a request is made under section 60.

Exception for par. (3)(a)

(5) For the purposes of paragraph (3)(a), the amount owing as duties in respect of goods under subsection (3) as a result of a determination made under subsection 58(1) does not include any amount owing as duties in respect of the goods under section 32 or 33.

Review of re-determination or further re-determination

(6) A re-determination or further re-determination made under this section is not subject to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by subsection 59(1) and sections 60 and 61.

R.S., 1985, c. 1 (2nd Supp.), s. 59; 1997, c. 36, s. 166; 2001, c. 25, s. 41; 2005, c. 38,

s. 74.

RE-DETERMINATION AND FURTHER RE-DETERMINATION BY PRESIDENT

Request for re-determination or further re-determination

60. (1) A person to whom notice is given under subsection 59(2) in respect of goods may, within ninety days after the notice is given, request a re-determination or further re-determination of origin, tariff classification, value for duty or marking. The request may be made only after all amounts owing as duties and interest in respect of the goods are paid or security satisfactory to the Minister is given in respect of the total amount owing.

Request for review

(2) A person may request a review of an advance ruling made under section 43.1 within ninety days after it is given to the person.

How request to be made

(3) A request under this section must be made to the President in the prescribed form and manner, with the prescribed information.

President’s duty on receipt of request

(4)

On receipt of a request under this section, the President shall, without delay,

(a)

re-determine or further re-determine the origin, tariff classification or value for duty;

(b)

affirm, revise or reverse the advance ruling; or

(c)

re-determine or further re-determine the marking determination.

Notice requirement

(5) The President shall without delay give notice of a decision made under subsection (4), including the rationale on which the decision is made, to the person who made the request.

R.S., 1985, c. 1 (2nd Supp.), s. 60; 1992, c. 28, s. 12; 1997, c. 36, s. 166; 1999, c. 17,

s. 127; 2001, c. 25, s. 42; 2005, c. 38, s. 85.

Extension of time to make a request

60.1 (1) If no request is made under section 60 within the time set out in that section, a person may make an application to the President for an extension of the time within which the request may be made, and the President may extend the time for making the request.

Reasons

(2) The application must set out the reasons why the request was not made on time.

How application made

(3)

The application must be made to the President in the prescribed manner and form and contain the prescribed information.

(4)

On receipt of an application, the President must, without delay, consider it and notify the person making the application, in writing, of the President’s decision.

Duties of President

Date of request

(5) If the President grants the application, the request is valid as of the date of the President’s decision.

Conditions for granting application

(6) No application may be granted unless

(a)

the application is made within one year after the expiry of the time set out in section 60; and

(b)

the person making the application demonstrates that

(i)

within the time set out in section 60, the person was unable to act or to give a mandate to act in the person’s name or the person had a bona fide intention to make a request,

(ii)

it would be just and equitable to grant the application, and

(iii) the application was made as soon as circumstances permitted.

2001, c. 25, s. 43; 2005, c. 38, s. 85.

Extension of time by Canadian International Trade Tribunal

60.2 (1) A person who has made an application under section 60.1 may apply to the Canadian International Trade Tribunal to have the application granted after either

(a)

the President has refused the application; or

(b)

ninety days have elapsed after the application was made and the President has not notified the person of the President’s decision. If paragraph (a) applies, the application under this subsection must be made within ninety days after the application is refused.

How application made

(2) The application must be made by filing with the President and the Secretary of the Canadian International Trade Tribunal a copy of the application referred to in section 60.1 and, if notice has been given under subsection 60.1(4), a copy of the notice.

Powers of Canadian International Trade Tribunal

(3) The Canadian International Trade Tribunal may dispose of an application by dismissing or granting it and, in granting an application, it may impose any terms

that it considers just or order that the request be deemed to be a valid request as of the date of the order.

When application to be granted

(4) No application may be granted under this section unless

(a)

the application under subsection 60.1(1) was made within one year after the expiry of the time set out in section 60; and

(b)

the person making the application demonstrates that

(i)

within the time set out in section 60, the person was unable to act or to give a mandate to act in the person’s name or the person had a bona fide intention to make a request,

(ii)

it would be just and equitable to grant the application, and

(iii) the application was made as soon as circumstances permitted.

2001, c. 25, s. 43; 2005, c. 38, s. 85.

What President may do

61. (1) The President may

(a)

re-determine or further re-determine the origin, tariff classification or value for duty of imported goods

(i)

at any time after a re-determination or further re-determination is made under paragraph 60(4)(a), but before an appeal is heard under section 67, on the recommendation of the Attorney General of Canada, if the re-determination or further re-determination would reduce duties payable on the goods,

(ii)

at any time, if the person who accounted for the goods under subsection 32(1),

(3)

or (5) fails to comply with any provision of this Act or the regulations or commits an offence under this Act in respect of the goods, and

(iii) at any time, if the re-determination or further re-determination would give effect to a decision of the Canadian International Trade Tribunal, the Federal Court of Appeal or the Supreme Court of Canada made in respect of the goods;

(b)

re-determine or further re-determine the marking determination of imported goods

(i)

within four years after the date the determination was made under section 57.01, if the Minister considers it advisable to make the re-determination,

(ii)

at any time, if the person who is given notice of a marking determination under section 57.01 or of a re-determination under paragraph 59(1)(a) fails to comply with any provision of this Act or the regulations or commits an offence under this Act in respect of the goods,

(iii) at any time, if the re-determination or further re-determination would give effect to a decision made in respect of the goods by the Canadian International Trade Tribunal, the Federal Court of Appeal or the Supreme Court of Canada, and

(iv)

at any time after a re-determination is made under paragraph 60(4)(c), but before an appeal is heard under section 67, on the recommendation of the Attorney General of Canada; and

(c)

re-determine or further re-determine the origin, tariff classification or value for duty of imported goods (in this paragraph referred to as the “subsequent goods”), at any time, if the re-determination or further re-determination would give effect, in respect of the subsequent goods, to a decision of the Canadian International Trade Tribunal, the Federal Court of Appeal or the Supreme Court of Canada, or of the President under subparagraph (a)(i),

(i)

that relates to the origin or tariff classification of other like goods imported by the same importer or owner on or before the date of importation of the subsequent goods, or

(ii)

that relates to the manner of determining the value for duty of other goods previously imported by the same importer or owner on or before the date of importation of the subsequent goods.

(2)

If the President makes a re-determination or further re-determination under this

Notice requirement

section, the President shall without delay give notice of that decision, including the rationale on which the decision is made, to the prescribed persons.

R.S., 1985, c. 1 (2nd Supp.), s. 61; 1992, c. 28, s. 13; 1993, c. 44, s. 92; 1997, c. 36, s. 166; 1999, c. 17, s. 127; 2001, c. 25, s. 44; 2005, c. 38, s. 85.

No review

62. A re-determination or further re-determination under section 60 or 61 is not subject to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by section 67.

R.S., 1985, c. 1 (2nd Supp.), s. 62; 1992, c. 28, s. 14; 1993, c. 44, s. 93; 1997, c. 36, s.

166.

63. and 64. [Repealed, 1997, c. 36, s. 166]

Payment or refund

65. (1) If a re-determination or further re-determination is made under paragraph 60(4)(a) or 61(1)(a) or (c) in respect of goods, such persons who are given notice of the decision as may be prescribed shall, in accordance with the decision,

(a)

pay any additional amount owing as duties in respect of the goods or, where an appeal is taken under section 67, give security satisfactory to the Minister in respect of that amount and any interest owing or that may become owing on that amount; or

(b)

be given a refund of any duties and interest paid (other than interest that was paid by reason of duties not being paid in accordance with subsection 32(5) or section 33) in excess of the duties and interest owing in respect of the goods.

Amount owing or refund payable immediately

(2) Any amount owing by or to a person under subsection (1) or 66(3) of this Act or as a result of a determination or re-determination under the Special Import Measures Act in respect of goods, other than an amount in respect of which security is given, is

payable immediately, whether or not an appeal is taken under section 67 of this Act or subsection 61(1) of that Act.

(3) [Repealed, 1997, c. 36, s. 167]

R.S., 1985, c. 1 (2nd Supp.), s. 65; 1992, c. 28, s. 16; 1993, c. 44, s. 96(E); 1997, c. 36, s. 167; 2001, c. 25, s. 45.

Refund to person other than payer

65.1 (1) If a person (in this subsection referred to as the “applicant”) to whom notice of a decision under subsection 59(1) or paragraph 60(4)(a) or 61(1)(a) or (c) was given would be entitled under paragraph 59(3)(b) or 65(1)(b) to a refund of an amount if the applicant had been the person who paid the amount, the amount may be paid to the applicant and any amount so paid to the applicant is deemed to have been refunded to the applicant under that paragraph.

Effect of refund

(2) If an amount in respect of goods has been refunded to a person under paragraph 59(3)(b) or 65(1)(b), no other person is entitled to a refund of an amount in respect

of the goods under either of those paragraphs.

Exception — marking determinations

(3) This section does not apply to a marking determination.

1992, c. 28, s. 17; 1997, c. 36, s. 168; 2001, c. 25, s. 46.

Interest on payments

66. (1) If the amount paid by a person on account of duties expected to be owing under paragraph 59(3)(a) or 65(1)(a) of this Act or under the Special Import Measures Act exceeds the amount of duties, if any, owing as a result of a determination, re-determination or further re-determination, the person shall be paid, in addition to the excess amount, interest at the prescribed rate for the period beginning on the first day after the day the amount was paid and ending on the day the determination, re-determination or further re-determination, as the case may be, was made, calculated on the excess amount.

Interest where security given

(2) If, as a result of a determination, re-determination or further re-determination made in respect of goods, a person is required under paragraph 59(3)(a) or 65(1)(a) to pay an amount owing as duties in respect of the goods and the person gives security under that paragraph pending a subsequent re-determination or further redetermination in respect of the goods, the interest payable under subsection 33.4(1) on any amount owing as a result of the subsequent re-determination or further redetermination is to be computed at the prescribed rate for the period beginning on the first day after the day the security was given and ending on the day the subsequent re-determination or further re-determination is made.

Interest on refunds

(3) A person who is given a refund under paragraph 59(3)(b) or 65(1)(b) of this Act or under the Special Import Measures Act of an amount paid shall be given, in addition to the refund, interest at the prescribed rate for the period beginning on the first day after the day the amount was paid and ending on the day the refund is given, calculated on the amount of the refund.

R.S., 1985, c. 1 (2nd Supp.), s. 66; 1992, c. 28, s. 18; 1997, c. 36, s. 168; 2001, c. 25,

s. 47.

Appeals and References Appeal to the Canadian International Trade Tribunal

67. (1) A person aggrieved by a decision of the President made under section 60 or 61 may appeal from the decision to the Canadian International Trade Tribunal by filing a notice of appeal in writing with the President and the Secretary of the Canadian International Trade Tribunal within ninety days after the time notice of the decision was given.

Publication of notice of appeal

(2) Before making a decision under this section, the Canadian International Trade Tribunal shall provide for a hearing and shall publish a notice thereof in the Canada Gazette at least twenty-one days prior to the day of the hearing, and any person

who, on or before the day of the hearing, enters an appearance with the Secretary of the Canadian International Trade Tribunal may be heard on the appeal.

Judicial review

(3) On an appeal under subsection (1), the Canadian International Trade Tribunal may make such order, finding or declaration as the nature of the matter may require, and an order, finding or declaration made under this section is not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by section 68.

R.S., 1985, c. 1 (2nd Supp.), s. 67, c. 47 (4th Supp.), s. 52; 1997, c. 36, s. 169; 1999,

c. 17, s. 127; 2001, c. 25, s. 48(F); 2005, c. 38, s. 85.

Extension of time to appeal

67.1 (1) If no notice of appeal has been filed within the time set out in section 67, a person may make an application to the Canadian International Trade Tribunal for an order extending the time within which a notice of appeal may be filed, and the Tribunal may make an order extending the time for appealing and may impose any terms that it considers just.

Reasons

(2) The application must set out the reasons why the notice of appeal was not filed on time.

How application made

(3) The application must be made by filing with the President and the Secretary of

the Canadian International Trade Tribunal the application accompanied by the notice of appeal.

Conditions for granting application

(4) No order may be made under this section unless

(a)

the application is made within one year after the expiry of the time set out in section 67; and

(b)

the person making the application demonstrates that

(i)

within the time set out in section 67 for appealing, the person was unable to act or to give a mandate to act in the person’s name or the person had a bona fide intention to appeal,

(ii)

it would be just and equitable to grant the application,

(iii) the application was made as soon as circumstances permitted, and

(iv) there are reasonable grounds for the appeal.

2001, c. 25, s. 49; 2005, c. 38, s. 85.

Appeal to Federal Court

68. (1) Any of the parties to an appeal under section 67, namely,

(a)

the person who appealed,

(b)

the President, or

(c)

any person who entered an appearance in accordance with subsection 67(2), may, within ninety days after the date a decision is made under section 67, appeal therefrom to the Federal Court of Appeal on any question of law.

Disposition of appeal

(2) The Federal Court of Appeal may dispose of an appeal by making such order or finding as the nature of the matter may require or by referring the matter back to the Canadian International Trade Tribunal for re-hearing.

R.S., 1985, c. 1 (2nd Supp.), s. 68, c. 47 (4th Supp.), s. 52; 1995, c. 41, s. 20; 1999, c. 17, s. 127; 2005, c. 38, s. 85.

Refund pending appeal

69. (1) Where an appeal is taken under section 67 or 68 in respect of goods and the person who appeals has paid any amount as duties and interest in respect of the goods, the person shall, on giving security satisfactory to the Minister in respect of the unpaid portion of the duties and interest owing in respect of the goods and the whole or any portion of the amount paid as duties and interest (other than interest that was paid by reason of duties not being paid in accordance with subsection 32(5) or section 33) in respect of the goods, be given a refund of the whole or any portion of the amount paid in respect of which security is given.

Interest

(2)

Where a refund is given under subsection (1), the person who is given the refund shall,

(a)

if a re-determination or further re-determination is made by the President under subparagraph 61(1)(a)(iii) and a portion of the amount refunded as a result of that decision is owing as duties and interest, pay interest at the prescribed rate for the period beginning on the first day after the day the refund is given and ending on the day the amount of the refund found to be owing as duties and interest has been paid in full, calculated on the outstanding balance of that amount of the refund, except that if the amount of the refund found to be owing is paid within thirty days after the day that decision is made, interest shall not be payable on that amount from that day to the day the amount is paid; or

(b)

if a re-determination or further re-determination is made by the President under subparagraph 61(1)(a)(iii) and a portion of the amount refunded as a result of that decision is not owing as duties and interest, be given interest at the prescribed rate for the period beginning on the day after the amount refunded was originally paid by that person and ending on the day it was refunded, calculated on the amount of the refund found not to be owing.

R.S., 1985, c. 1 (2nd Supp.), s. 69, c. 1 (4th Supp.), s. 45(F); 1992, c. 28, s. 19; 1997,

c. 36, s. 170; 1999, c. 17, s. 127; 2001, c. 25, s. 50(F); 2005, c. 38, s. 85.

References to Canadian International Trade Tribunal

70. (1) The President may refer to the Canadian International Trade Tribunal for its opinion any questions relating to the origin, tariff classification or value for duty of any goods or class of goods.

Idem

(2) Sections 67 and 68 apply in respect of a reference made pursuant to this section

as if the reference were an appeal taken pursuant to section 67.

R.S., 1985, c. 1 (2nd Supp.), s. 70, c. 47 (4th Supp.), s. 52; 1997, c. 36, s. 171; 1999,

c. 17, s. 127; 2005, c. 38, s. 85.

Special Provisions Special provisions

71. (1) If the release of goods is refused because the goods have been determined to be prohibited goods classified under tariff item No. 9899.00.00 of the List of Tariff Provisions set out in the schedule to the Customs Tariff, redetermination or further re-determination may be requested under section 60 or made under section 61 and appeals may be taken under sections 67 and 68 in respect of the determination, subject to the following modifications:

(a)

subparagraph 61(1)(a)(iii) and paragraph 61(1)(c) are deemed to include a reference to the court; and

(b)

in sections 67 and 68, the expression “court” is deemed to be substituted for the expression “Canadian International Trade Tribunal” and the expression “clerk of the court” is deemed to be substituted for the expression “Secretary of the Canadian International Trade Tribunal”.

Definitions

(2) In this section,

“clerk of the court”

« greffier du tribunal » “clerk of the court” means the clerk of the Supreme Court, Superior Court of Justice in and for the Province of Ontario, Superior Court, Court of Queen’s Bench or county or district court, as the case may be;

“court” « tribunal » “court” means

(a)

in the Province of Ontario, the Superior Court of Justice,

(b)

in the Province of Quebec, the Superior Court,

(c)

in the Provinces of Nova Scotia and British Columbia, in Yukon and in the Northwest Territories, the Supreme Court,

(d)

in the Provinces of New Brunswick, Manitoba, Saskatchewan and Alberta, the Court of Queen’s Bench,

(e)

[Repealed, 1992, c. 51, s. 44]

(f)

in the Provinces of Prince Edward Island and Newfoundland, the Trial Division of the Supreme Court, and

(g)

in Nunavut, the Nunavut Court of Justice.

R.S., 1985, c. 1 (2nd Supp.), s. 71, c. 41 (3rd Supp.), s. 120, c. 47 (4th Supp.), s. 52; 1990, c. 16, s. 8, c. 17, s. 16; 1992, c. 1, s. 61, c. 51, s. 44; 1997, c. 36, s. 172; 1998, c. 30, ss. 12, 14; 1999, c. 3, s. 59; 2002, c. 7, s. 152.

Limitation relating to security

72. No security may be given under paragraph 59(3)(a) or 65(1)(a) or subsection 69(1) in respect of any amount owing as surtaxes levied under section 53, 55, 60, 63, 68 or 78 of the Customs Tariff or temporary duties levied under any of sections 69 to 76 of that Act.

R.S., 1985, c. 1 (2nd Supp.), s. 72, c. 41 (3rd Supp.), s. 121; 1988, c. 65, s. 71; 1993,

c. 44, s. 97; 1996, c. 33, s. 35; 1997, c. 14, s. 42, c. 36, s. 173.

Limitation — heading No. 98.26 of List of Tariff Provisions

72.1 Notwithstanding subsection 59(1) and sections 60 and 61, no redetermination or further re-determination of the tariff classification of imported goods classified under heading No. 98.26 of the List of Tariff Provisions set out in the schedule to the Customs Tariff may be made unless the re-determination or further re-determination is to

(a)

change the classification of the goods to another tariff item under that heading; or

(b)

change the classification of all those goods accounted for under the same accounting document to tariff items in Chapters 1 to 97 of that List.

1990, c. 36, s. 1; 1997, c. 36, s. 173.

72.2 [Repealed, 1997, c. 36, s. 173]

PART IV

ABATEMENTS AND REFUNDS

Abatement

73. Subject to section 75 and any regulations made under section 81, the Minister may grant an abatement of the whole or part of the duties on imported goods where the goods have suffered

(a)

damage, deterioration or destruction at any time from the time of shipment to Canada to the time of release; or

(b)

a loss in volume or weight arising from natural causes while in a bonded warehouse.

Refund

74. (1) Subject to this section, section 75 and any regulations made under section 81, a person who paid duties on any imported goods may, in accordance with subsection (3), apply for a refund of all or part of those duties, and the Minister may grant to that person a refund of all or part of those duties, if

(a)

they have suffered damage, deterioration or destruction at any time from the time of shipment to Canada to the time of release;

(b)

the quantity released is less than the quantity in respect of which duties were paid;

(c)

they are of a quality inferior to that in respect of which duties were paid;

(c.1) the goods were exported from a NAFTA country or from Chile but no claim for preferential tariff treatment under NAFTA or no claim for preferential tariff treatment under CCFTA, as the case may be, was made in respect of those goods at the time they were accounted for under subsection 32(1), (3) or (5);

(c.11) the goods were imported from Costa Rica, from an EFTA state, from Israel or another CIFTA beneficiary or from Peru but no claim for preferential tariff treatment under CCRFTA, CEFTA, CIFTA or CPFTA, as the case may be, was made in respect of those goods at the time they were accounted for under subsection 32(1), (3) or (5);

(c.2) [Repealed, 1997, c. 14, s. 43]

(d)

the calculation of duties owing was based on a clerical, typographical or similar error;

(e)

the duties were paid or overpaid as a result of an error in the determination under subsection 58(2) of origin (other than in the circumstances described in paragraph (c.1) or (c.11)), tariff classification or value for duty in respect of the goods and the determination has not been the subject of a decision under any of sections 59 to 61;

(f)

the goods, or other goods into which they have been incorporated, are sold or otherwise disposed of to a person, or are used, in compliance with a condition imposed under a tariff item in the List of Tariff Provisions set out in the schedule to the Customs Tariff, or under any regulations made under that Act in respect of a tariff item in that List, before any other use is made of the goods in Canada; or

(g)

the duties were overpaid or paid in error for any reason that may be prescribed.

Refund treated as re-determination

(1.1) The granting of a refund under paragraph (1)(c.1), (c.11), (e) or (f) or, if the refund is based on tariff classification, value for duty or origin, under paragraph (1)(g) is to be treated for the purposes of this Act, other than section 66, as if it were a re-determination made under paragraph 59(1)(a).

Duties

(1.2) The duties that may be refunded under paragraph (1)(f) do not include duties

or taxes levied under the Excise Act, 2001, the Excise Tax Act or the Special Import Measures Act.

Claims for refund

(2) No refund shall be granted under any of paragraphs (1)(a) to (c) and (d) in

respect of a claim unless written notice of the claim and the reason for it is given to an officer within the prescribed time.

Idem

(3)

No refund shall be granted under subsection (1) in respect of a claim unless

(a)

the person making the claim affords an officer reasonable opportunity to examine the goods in respect of which the claim is made or otherwise verify the reason for the claim; and

(b)

an application for the refund, including such evidence in support of the application as may be prescribed, is made to an officer in the prescribed manner and in the prescribed form containing the prescribed information within

(i)

in the case of an application for a refund under paragraph (1)(a), (b), (c), (c.11), (d), (e), (f) or (g), four years after the goods were accounted for under subsection 32(1), (3) or (5), and

(ii)

in the case of an application for a refund under paragraph (1)(c.1), one year after the goods were accounted for under subsection 32(1), (3) or (5) or such longer period as may be prescribed.

Effect of denial of refund

(4)

A denial of an application for a refund of duties paid on goods is to be treated for the purposes of this Act as if it were a re-determination under paragraph 59(1)(a) if

(a)

the application is for a refund under paragraph (1)(c.1) or (c.11) and the application is denied because at the time the goods were accounted for under subsection 32(1), (3) or (5), they were not eligible for preferential tariff treatment under a free trade agreement; or

(b)

the application is for a refund under paragraph (1)(e), (f) or (g) and the application is denied because the origin, tariff classification or value for duty of the goods as claimed in the application is incorrect.

(4.1) [Repealed, 1997, c. 14, s. 43]

Effect of denial of refund

(5) For greater certainty, a denial of an application for a refund under paragraph (1)(c.1), (c.11), (e), (f) or (g) on the basis that complete or accurate documentation has not been provided, or on any ground other than the ground

specified in subsection (4), is not to be treated for the purposes of this Act as if it were a re-determination under this Act of origin, tariff classification or value for duty.

Refund without application

(6)

The Minister, within four years after goods are accounted for under subsection 32(1), (3) or (5), may refund all or part of duties paid on imported goods without application by the person who paid them if it is determined that the duties were overpaid or paid in error in any of the circumstances set out in

(a)

paragraphs (1)(a) to (c) or (d); or

(b)

paragraph (1)(g), only to the extent that the refund is not based on tariff classification, value for duty or origin of the goods.

Duties that may not be refunded

(7) The duties that may be refunded under subsection (6) do not include duties or taxes levied under the Excise Act, the Excise Tax Act or the Special Import Measures Act or a surtax or temporary duty imposed under Division 4 of Part II of the Customs Tariff.

Application of refund

(8) A person of a prescribed class may apply, within four years after goods are accounted for under subsection 32(1), (3) or (5), in prescribed circumstances and under prescribed conditions, the amount of any refund to which they are entitled under this section to the payment of any amount for which they are liable or may become liable under this Act.

R.S., 1985, c. 1 (2nd Supp.), s. 74; 1988, c. 65, s. 72; 1993, c. 44, s. 98; 1996, c. 33, s. 36; 1997, c. 14, s. 43, c. 36, s. 175; 1999, c. 31, s. 71(F); 2001, c. 25, s. 51, c. 28,

s. 29; 2002, c. 22, s. 337; 2009, c. 6, s. 27, c. 16, ss. 34, 56.

74.1 [Repealed, 1997, c. 36, s. 176]

Amount of abatement or refund

75. (1) Subject to sections 78 and 79, the amount of any abatement or refund granted under section 73 or 74 shall be determined in accordance with such regulations as the Governor in Council may make prescribing the methods of determining the amount and the classes of cases to which such determinations apply.

Alternative rule for case of deficiency

(2) Where the quantity of imported goods released is less than the quantity in respect of which duties were paid and no refund of duties has been granted in respect of the deficient quantity, an officer may, in such circumstances as may be prescribed and at the request of the person by whom the duties were paid, apply any duties paid in respect of the deficient quantity of the goods to any duties that

become due on the deficient quantity if any portion thereof is subsequently imported by the same importer or owner.

Refunds for defective goods

76. (1) Subject to any regulations made under section 81, the Minister may, in such circumstances as may be prescribed, grant to any person by whom duties were paid on imported goods that are defective, are of a quality inferior to that in respect of which duties were paid or are not the goods ordered, a refund of the whole or part of the duties paid thereon if the goods have, subsequently to the importation, been disposed of in a manner acceptable to the Minister at no expense to Her Majesty in right of Canada or exported.

Subsections 74(2) and (3) and 75(1) apply

(2) Subsections 74(2) and (3) and 75(1) apply, with such modifications as the circumstances require, in respect of refunds under this section.

R.S., 1985, c. 1 (2nd Supp.), s. 76; 2001, c. 25, s. 52(F).

77. [Repealed, 1997, c. 36, s. 177]

Merchantable scrap, waste or by-products

78. In such circumstances as may be prescribed, where merchantable scrap, waste or by-products result from the destruction or disposal of goods or from the incorporation of goods into other goods, the amount of any abatement or refund that is granted in respect of such goods under this Act by virtue of the destruction, disposal or incorporation into other goods shall be reduced by an amount determined in the prescribed manner.

R.S., 1985, c. 1 (2nd Supp.), s. 78; 1992, c. 1, s. 144(F).

Sum in lieu of refund or abatement

79. Where circumstances exist that render it difficult to determine the exact amount of any abatement or refund that should be granted in respect of goods under this Act, the Minister may, with the consent of the person claiming the abatement or refund, grant to that person, in lieu thereof, a specific sum, the amount of which shall be determined by the Minister.

Certain duties not included

79.1 For the purposes of sections 78 and 79, an abatement or refund does not include a rebate or refund of any amount paid in respect of tax levied under Part IX of the Excise Tax Act.

1990, c. 45, s. 20.

Interest on refunds

80. Any person who is granted a refund of duties under section 74, 76 or 79 shall be granted, in addition to the refund, interest on the refund at the prescribed rate for the period beginning on the ninety-first day after the day an application for the refund is received in accordance with paragraph 74(3)(b) and ending on the day the refund is granted.

R.S., 1985, c. 1 (2nd Supp.), s. 80; 1992, c. 28, s. 20; 1997, c. 36, s. 178; 2001, c. 25,

s. 53.

Interest on past refunds

80.1 Notwithstanding subsection 80(1), any person who, under paragraph 74(1)(g), is granted a refund of duties on imported goods on which the rate of customs duty is reduced by a retroactive order or regulation of the Governor in Council made under the Customs Tariff shall be granted, in addition to the refund, interest at the prescribed rate for the period beginning on the day after the day the duties were paid and ending on the day the refund is granted, calculated on the amount of the refund.

1990, c. 36, s. 3; 1992, c. 28, s. 21; 1997, c. 36, s. 179.

Excess to be repaid

80.2 (1) Subject to subsection (2), if an abatement or refund is granted to a person under sections 73 to 76 and the person is not entitled to all or part of it, the person is liable to repay the amount to which they are not entitled to Her Majesty in right of Canada, on the day it is received by the person, together with any interest that was granted to the person under section 80 or 80.1 on that amount.

Excess to be repaid — paragraph 74(1)(f)

(2)

If an abatement or refund is granted to a person under paragraph 74(1)(f) and the goods are sold or otherwise disposed of or are subsequently used in a manner that fails to comply with a condition imposed under a tariff item in the List of Tariff Provisions set out in the schedule to the Customs Tariff, or under any regulations made under that Act in respect of a tariff item in that List, the person who was granted the refund or abatement shall, within ninety days after the failure to comply,

(a)

report the failure to an officer at a customs office; and

(b)

pay to Her Majesty in right of Canada any amount to which they are not entitled, together with any interest that was granted to the person under section 80 or 80.1 on that amount.

1997, c. 36, s. 180; 2001, c. 25, s. 54.

Regulations

1. The Governor in Council may make regulations prescribing the circumstances in which abatements or refunds shall not be granted under this Act in respect of prescribed classes of goods.
2. to 87. [Repealed, 1995, c. 41, s. 22]

88. to 91. [Repealed, 1997, c. 36, s. 181]

1. [Repealed, 1995, c. 41, s. 24]
2. and 94. [Repealed, 1997, c. 36, s. 181]

PART V

EXPORTATION

Report

95. (1) Subject to paragraph (2)(a), all goods that are exported shall be reported at such time and place and in such manner as may be prescribed.

Regulations

(2) The Governor in Council may prescribe

(a)

the classes of goods that are exempted from the requirements of subsection (1) and the circumstances in which any of those classes of goods are not so exempted; and

(b)

the classes of persons who are required to report goods under subsection (1) and the circumstances in which they are so required.

Obligation to answer questions and present goods

(3) Every person reporting goods under subsection (1) shall

(a)

answer truthfully any question asked by an officer with respect to the goods; and

(b)

where an officer so requests, present the goods to the officer, remove any covering from the goods, unload any conveyance or open any part thereof, or open or unpack any package or container that the officer wishes to examine.

Written report

(4) If goods are required to be reported in writing, they shall be reported in the prescribed form containing the prescribed information or in such form containing such information as is satisfactory to the Minister.

R.S., 1985, c. 1 (2nd Supp.), s. 95; 2001, c. 25, s. 55.

Statistics

95.1 (1) Subject to this section, every person who reports goods under subsection 95(1) shall, at the time of reporting, furnish an officer at a customs office with the statistical code for the goods determined by reference to the Coding System established pursuant to section 22.1 of the Statistics Act.

Prescribed form

(2) The statistical code referred to in subsection (1) shall be furnished in the prescribed manner and in the prescribed form containing the prescribed information.

Regulations

(3) The Governor in Council may make regulations exempting persons or goods, or

classes thereof, from the requirements of subsection (1) subject to such conditions, if any, as are specified in the regulations.

1988, c. 65, s. 77.

Failure to export

96. Where goods are reported under section 95 and not duly exported, the person who reported them shall forthwith report the failure to export them to an officer at a customs office.

Security

97. In such circumstances as may be prescribed, goods that are transported within Canada after they have been reported under section 95 shall be transported subject to such conditions and subject to such bonds or other security as may be prescribed.

97.01 [Repealed, 1997, c. 14, s. 44]

Certificate of Origin of goods exported to a free trade partner

97.1 (1) Every exporter of goods to a free trade partner for which preferential tariff treatment under a free trade agreement will be claimed in accordance with the laws of that free trade partner shall certify in writing in the prescribed form and containing the prescribed information that goods exported or to be exported from Canada to that free trade partner meet the rules of origin set out in, or contemplated by, the applicable free trade agreement and, if the exporter is not the producer of the goods, the certificate shall be completed and signed by the exporter on the basis of the prescribed criteria.

Provision of copy of Certificate of Origin

(2) Every exporter or producer of goods who, for the purpose of enabling any person to comply with the applicable laws relating to customs of a free trade partner, completes and signs a certificate in accordance with subsection (1) shall, at the request of an officer, provide the officer with a copy of the certificate.

Notification of correct information

(3) A person who has completed and signed a certificate in accordance with subsection (1) and who has reason to believe that it contains incorrect information

shall immediately notify all persons to whom the certificate was given of the correct information.

1988, c. 65, s. 78; 1997, c. 14, s. 44; 2001, c. 25, s. 56(F).

97.11 [Repealed, 1997, c. 14, s. 44]

Exporters’ or producers’ records

97.2 (1) Every person who exports goods or causes them to be exported for sale or for any industrial, occupational, commercial, institutional or other like use or any other use that may be prescribed, and every other person who has completed and signed a certificate in accordance with subsection 97.1(1), shall keep at the person’s place of business in Canada or at any other place that may be designated by the Minister any records in respect of those goods in the manner and for the period that may be prescribed and shall, if an officer requests, make them available to the officer, within the time specified by the officer, and answer any questions asked by the officer in respect of the records.

Idem

(2) Subsection 40(2) and sections 42 and 43 apply, with such modifications as the

circumstances require, to a person required to keep records pursuant to subsection (1).

1988, c. 65, s. 78; 1993, c. 44, s. 104; 1996, c. 33, s. 38; 1997, c. 14, s. 45; 2001, c. 25, s. 57.

Verification of origin on behalf of an EFTA state

97.201 (1) The customs administration of an EFTA state to which goods were exported may request in writing that the Agency conduct a verification and provide an opinion as to whether those goods are originating within the meaning of Annex C of CEFTA.

Methods of verification

(2)

Any officer, or any officer within a class of officers, designated by the President for the purposes of this section, or any person, or any person within a class of persons, designated by the President to act on behalf of such an officer, may, subject to any prescribed conditions, conduct a verification of origin of goods referred to in subsection (1)

(a)

by entering any prescribed premises or place at any reasonable time; or

(b)

in any other prescribed manner.

Statement of origin

(3)

On completion of a verification of origin requested under subsection (1), an officer or other person designated under subsection (2) shall

(a)

provide, in the prescribed manner, the customs administration of an EFTA state referred to in subsection (1) with the opinion requested under that subsection and any relevant supporting documents that may be requested by that customs administration; and

(b)

determine whether the goods are originating within the meaning of Annex C of CEFTA.

Notice requirement

(4) The President shall without delay give notice of a decision made under paragraph (3)(b), including the rationale on which the decision is made, to the exporter or producer of the goods, as the case may be, subject to the verification of origin.

Determination treated as re-determination

(5) A determination made under paragraph (3)(b) is to be treated for the purposes of this Act as if it were a re-determination under paragraph 59(1)(a).

2009, c. 6, s. 28.

PART V.1

COLLECTIONS

INTERPRETATION

Definitions

97.21 The definitions in this section apply in this Part.

“Commissioner” « commissaire » “Commissioner” means the Commissioner of Revenue appointed under section 25 of the Canada Revenue Agency Act.

“debtor”

« débiteur » “debtor” means a person liable to pay an amount owing or payable in accordance with this Act.

“judge”

« juge » “judge” means a judge of a superior court having jurisdiction in the province where a matter arises or a judge of the Federal Court.

“Minister” « ministre » “Minister” means the Minister of National Revenue.

“receiver” « séquestre » “receiver” means a person who

(a)

under the authority of a debenture, bond or other debt security, a court order or an Act of Parliament or of the legislature of a province, is empowered to operate or manage a business or a property of another person;

(b)

is appointed by a trustee under a trust deed in respect of a debt security to exercise the authority of the trustee to manage or operate a business or a property of the debtor under the debt security;

(c)

is appointed by a bank to act as agent of the bank in the exercise of the authority of the bank under subsection 426(3) of the Bank Act in respect of property of another person;

(d)

is appointed as a liquidator to liquidate the assets of a corporation or to wind up the affairs of a corporation; or

(e)

is appointed as a committee, guardian or curator with authority to manage and care for the affairs and assets of an individual who is incapable of managing those affairs and assets.

It includes a person who is appointed to exercise the authority of a creditor under a debenture, bond or other debt security to operate or manage a business or a property of another person. However, if a person is so appointed it does not include that creditor.

2001, c. 25, s. 58; 2005, c. 38, s. 75.

ANCILLARY POWERS

Ancillary powers

97.211 (1) The Minister may, for the purposes of administering or enforcing this Part, exercise any of the following powers that are necessary for the collection of debts due to Her Majesty under this Part:

(a)

the powers provided for in paragraphs (a) and (b) of the definition “prescribed” in subsection 2(1) as well as those provided for in subsections 3.3(1) and (2), 43(1) and 115(1); and

(b)

any other powers that are conferred under any provision of this Act that is specified by the Governor in Council on the recommendation of the Minister and the Minister of Public Safety and Emergency Preparedness.

(2)

An order made for the purpose of subsection (1) must be published in Part II of

Publication

the Canada Gazette as soon as practicable after it is made.

2005, c. 38, ss. 76, 145.

GENERAL

Debts to Her Majesty

97.22 (1) Subject to subsections (2) and (3), any duties, fee, charge or other amount owing or payable under this Act is a debt due to Her Majesty in right of Canada from and after the time such amount should have been paid, and any person from whom the amount is owing shall, after a notice of arrears is sent by mail addressed to the person at their latest known address or delivered to that address, pay the amount owing as indicated in the notice or appeal the notice under section

97.23.

Penalty or ascertained forfeiture

(2) Any amount of money demanded as a penalty in a notice of assessment served under section 109.3 and any interest payable under section 109.5 or any amount of money demanded in a notice under section 124 and any interest payable under subsection 124(6), from and after the time of service, is a debt due to Her Majesty in right of Canada from the person on whom the notice is served and the person shall pay that amount or, within ninety days after the time of service, request a decision of the Minister of Public Safety and Emergency Preparedness under section 131.

Amounts demanded

(3) Any amount of money demanded under paragraph 133(1)(c) or (1.1)(b) and any interest payable under subsection 133(7), from and after the time notice is served under subsection 131(2), is a debt due to Her Majesty in right of Canada from the person who requested the decision and the person shall pay the amount so demanded or, if the person appeals the decision of the Minister of Public Safety and Emergency Preparedness under section 135, give security satisfactory to that Minister.

Court costs

(4) If an amount is payable by a person to Her Majesty in right of Canada because of an order, judgment or award of a court in respect of the costs of litigation relating to a matter to which this Act applies, sections 97.24, 97.26, 97.28 and 97.3 to 97.33 apply to the amount as if the amount were a debt owing by the person to Her Majesty on account of duties payable by the person under this Act.

Court

(5)

Any amount payable under this Act is recoverable in the Federal Court or any other court of competent jurisdiction or in any other manner provided under this Part.

(6)

If a judgment is obtained for any amount payable under this Act, including a certificate registered under section 97.24, the provisions of this Act under which interest is payable for failure to pay the amount apply, with any modifications that

Interest on judgments

the circumstances require, to a failure to pay the judgment debt, and the interest is recoverable in the same manner as the judgment debt.

2001, c. 25, s. 58; 2005, c. 38, ss. 77, 84, 145.

Appeal

97.23 A person to whom a notice is sent or delivered under subsection 97.22(1) may, within thirty days after that notice is sent, appeal the notice by way of an action in the Federal Court in which the person is the plaintiff and the Minister of Public Safety and Emergency Preparedness is the defendant if

(a)

no appeal is or was available to that person under section 67 or 68 in respect of the same matter; and

(b)

the notice is not in respect of an amount assessed under section 97.44.

2001, c. 25, s. 58; 2005, c. 38, ss. 84, 145.

CERTIFICATES, LIENS AND SET-OFF

Certificate

97.24 (1) Any debt, or any part of a debt, due to Her Majesty in right of Canada under this Act may be certified by the Minister as an amount payable by the debtor.

Registration in court

(2) On production to the Federal Court, the certificate must be registered in the Court. When it is registered, it has the same force and effect, and all proceedings may be taken, as if the certificate were a judgment obtained in the Court for a debt of the amount specified in the certificate and interest on the amount as provided under this Act. For the purposes of any such proceedings, the certificate is a judgment of the Court against the debtor and enforceable as such.

Costs

(3) All reasonable costs and charges for the registration of the certificate or in respect of any proceedings taken to collect the amount certified are recoverable in the same way as if they had been certified in the certificate registered under this section.

Protected interest in property

(4)

A memorial may be recorded for the purpose of creating a protected interest in property in a province or an interest in such property held by the debtor in the same manner as a document evidencing the following may be recorded in accordance with the law of the province:

(a)

a judgment of the superior court of the province against a person for a debt owing by the person; and

(b)

an amount payable by a person in the province in respect of a debt owing to Her Majesty in right of the province.

Creation of protected interest

(5) The effect of recording a memorial is, in the same manner and to the same extent as if the memorial were a document evidencing a judgment or an amount referred to in subsection (4), to create a protected interest in the property of the debtor in the province, or in any interest in that property, held by the debtor or to otherwise bind that property or interest in the property. The protected interest created is subordinate to any protected interest in respect of which all steps necessary to make it effective against other creditors were taken before the time the memorial was recorded.

Proceedings in respect of memorial

(6)

If a memorial is recorded in a province, proceedings may be taken, in the same manner and to the same extent as if the memorial were a document evidencing a judgment or an amount referred to in subsection (4), in the province in respect of the memorial, including proceedings

(a)

to enforce payment of the amount evidenced by the memorial, interest on the amount and all costs and charges paid or incurred in respect of the recording of the memorial and proceedings taken to collect the amount;

(b)

to renew or otherwise prolong the effectiveness of the recording of the memorial;

(c)

to cancel or withdraw the memorial wholly or in respect of any of the property or interests affected by the memorial; or

(d)

to postpone the effectiveness of the recording of the memorial in favour of any protected interest that has been or is intended to be recorded in respect of any property or interest affected by the memorial.

Federal Court may make order, etc.

(7) If in any proceeding or as a condition precedent to any proceeding referred to in subsection (6) any order, consent or ruling is required under the law of a province to be made or given by the superior court of the province or by a judge or official of the court, a like order, consent or ruling may be made or given by the Federal Court or by a judge or official of the Federal Court and, when so made or given, has the same effect for the purposes of the proceeding as if it were made or given by the superior court of the province or by a judge or official of the court.

Presentation of documents

(8) If a memorial, or a document relating to it, is presented for recording, for the purpose of any proceeding referred to in subsection (6), to any official in the land, personal property or other registry system of a province, it is to be accepted for recording in the same manner and to the same extent as if the memorial or document were a document evidencing a judgment or an amount referred to in subsection (4) for the purpose of a like proceeding.

Access for recording

(9) If access is sought to any person, place or thing in a province for the purpose of recording a memorial, or a document relating to it, the access must be granted in

the same manner and to the same extent as if the memorial or document were a document evidencing a judgment or an amount referred to in subsection (4) for the

purpose of a like proceeding.

Evidence deemed to have been provided

(10) If a memorial or document is issued by the Federal Court or signed or certified by a judge or official of the Court, any affidavit, declaration or other evidence required under the law of the province to be provided with or to accompany the memorial or document in the proceeding is deemed to have been provided with or to have accompanied the memorial or document as so required.

Prohibition — sale, etc., without consent

(11) Despite any law of Canada or of a province, no sheriff or other person may, without the written consent of the Minister, sell or otherwise dispose of any property or publish any notice or otherwise advertise in respect of any sale or other disposition of any property pursuant to any process issued or protected interest created in any proceeding to collect an amount certified in a certificate, any interest on the amount and any costs.

Subsequent consent

(12) Despite subsection (11), if the Minister’s consent is subsequently given, any property that would have been affected by a process or protected interest referred to in that subsection had the Minister’s consent been given at the time the process was issued or the protected interest was created is bound, seized, attached, charged or otherwise affected as if that consent had been given at the time the process was issued or the protected interest was created, as the case may be.

Completion of notices, etc.

(13) If information required to be set out by any sheriff or other person in a minute, notice or document required to be completed for any purpose cannot, because of subsection (11), be so set out, the sheriff or other person must complete the minute, notice or document to the extent possible without that information and, when the consent of the Minister is given, a further minute, notice or document setting out all the information is to be completed for the same purpose. The sheriff or other person is deemed to have complied with any law or rule of court requiring the information to be set out in the minute, notice or document.

Application for an order

(14) A sheriff or other person who is unable, because of subsection (11) or (13), to comply with any law or rule of court is bound by any order made by a judge of the Federal Court, on an ex parte application by the Minister, for the purpose of giving effect to the proceeding or protected interest.

Secured claims

(15)

A protected interest that is registered in accordance with subsection 87(1) of the Bankruptcy and Insolvency Act is deemed to be a claim that

(a)

is secured by a security and that, subject to subsection 87(2) of that Act, ranks as a secured claim under that Act; and

(b)

is referred to in paragraph 86(2)(a) of that Act.

Details in certificates and memorials

(16) Despite any law of Canada or of a province, in any certificate in respect of a

debtor, in any memorial evidencing the certificate or in any writ or document issued for the purpose of collecting an amount certified, it is sufficient for all purposes

(a)

to set out, as the amount payable by the debtor, the total of amounts payable by the debtor without setting out the separate amounts making up that total; and

(b)

to refer to the rate of interest to be charged on the separate amounts making up the amount payable in general terms as interest at the rate prescribed under this Act applicable from time to time on amounts payable to the Receiver General, without indicating the specific rates of interest to be charged on each of the separate amounts or to be charged for any particular period of time.

Definitions

(17) The definitions in this subsection apply in this section.

“memorial”

« extrait » “memorial” means a document issued by the Federal Court evidencing a certificate registered under subsection (2) in respect of a debtor and includes a writ of that Court issued pursuant to the certificate or any notification of the document or writ.

“protected interest”

« droit garanti » “protected interest” means a charge, lien, prior claim, priority on or binding interest in property.

“record”

« enregistrement » “record”, in respect of a memorial, means to file, register or otherwise record the memorial.

2001, c. 25, s. 58.

Detention of and lien on imported or exported goods

97.25 (1) Any goods reported for exportation under section 95 or imported by or on behalf of a debtor are subject to a lien for the amount owed by the debtor and may be detained by an officer at the expense of the debtor until that amount is paid.

Conveyances

(2)

Any conveyance used for the importation of goods in respect of which a notice under section 109.3 has been served is subject to a lien for the amount owed by the debtor and may be detained by an officer at the expense of the person on whom the notice was served until the amount set out in the notice is paid.

(3)

Subject to the regulations, the Minister, on giving 30 days’ notice in writing to the debtor at the debtor’s latest known address, may direct that any good imported

Sale of detained goods

or reported for exportation by or on behalf of the debtor, or any conveyance, that has been detained be sold

(a)

if the good is spirits or specially denatured alcohol, to a spirits licensee;

(b)

if the good is wine, to a wine licensee;

(c)

if the good is raw leaf tobacco or a tobacco product, to a tobacco licensee;

(d)

if the good is a restricted formulation, to a licensed user; or

(e)

in any other case, by public auction or public tender or by the Minister of Public Works and Government Services under the Surplus Crown Assets Act.

Excise stamps not to be sold

(3.1) Despite subsection (3), the Minister shall not direct that detained excise stamps be sold.

Proceeds of sale

(4) The proceeds of any sale shall be applied to amounts owed by the debtor, any

expenses incurred by Her Majesty in right of Canada in respect of the goods sold and any duties on the goods and the surplus, if any, shall be paid to the debtor.

2001, c. 25, s. 58; 2007, c. 18, s. 136; 2010, c. 12, s. 49.

Set-off

97.26 The Minister may require that an amount specified by the Minister be deducted from or set-off against an amount that is or may become payable to a debtor by Her Majesty in Right of Canada. If an amount payable to a person under a provision of this Act has at any time been deducted or set-off, the amount is deemed to have been paid to the debtor at that time under that provision and to have been paid by the debtor at that time on account of the debt to Her Majesty.

2001, c. 25, s. 58.

Refund may be applied against liabilities

97.27 The Minister of Public Safety and Emergency Preparedness may, if a person is or is about to become liable to make any payment to Her Majesty in right of Canada or in right of a province, apply the amount of any drawback, refund or relief granted under section 74 or 76 of this Act or section 89, 101 or 113 of the Customs Tariff to that other liability and notify the person of that action.

2001, c. 25, s. 58; 2005, c. 38, ss. 84, 145.

GARNISHMENT AND NON-ARM’S LENGTH TRANSFERS

Garnishment — general

97.28 (1) If the Minister has knowledge or suspects that a person is or will be, within one year, liable to make a payment to a debtor, the Minister may, by notice in writing, require the person to pay without delay, if the moneys are immediately payable, and, in any other case, as and when the moneys become payable, the moneys otherwise payable to the debtor in whole or in part to the Receiver General on account of the debtor’s liability under this Act.

Garnishment — institutions

(2) The Minister may, by notice in writing, require the following institutions or persons to pay in whole or in part to the Receiver General on account of a debtor’s

liability the moneys that would otherwise be loaned, advanced or paid if the Minister has knowledge or suspects that within ninety days

(a)

a bank, credit union, trust company or other similar person (in this section referred to as the “institution”) will loan or advance moneys to, or make a payment on behalf of, or make a payment in respect of a negotiable instrument issued by, a debtor who is indebted to the institution and who has granted security in respect of the indebtedness; or

(b)

a person, other than an institution, will loan or advance moneys to, or make a payment on behalf of, a debtor who the Minister knows or suspects

(i)

is employed by, or is engaged in providing services or property to, that person or was or will be, within ninety days, so employed or engaged, or

(ii)

if that person is a corporation, is not dealing at arm’s length with that person. Any moneys so paid to the Receiver General are deemed to have been loaned, advanced or paid to the debtor.

Effect of receipt

(3) A receipt issued by the Minister for moneys paid as required under this section is a good and sufficient discharge of the original liability to the extent of the payment.

Periodic payments

(4) If the Minister has, under this section, required a person to pay to the Receiver General on account of the liability under this Act of a debtor moneys otherwise payable by the person to the debtor as interest, rent, remuneration, a dividend, an annuity or other periodic payment, the requirement applies to all such payments to be made by the person to the debtor until the liability under this Act is satisfied, and operates to require payments to the Receiver General out of each such payment of such amount as is required by the Minister in a notice in writing.

Failure to comply

(5) Every person who fails to comply with a requirement under subsection (1) or (4)

is liable to pay to Her Majesty in right of Canada an amount equal to the amount that the person was required under that subsection to pay to the Receiver General.

Failure to comply — institutions

(6)

Every institution or person that fails to comply with a requirement under subsection (2) is liable to pay to Her Majesty in right of Canada an amount equal to the lesser of

(a)

the total of moneys loaned, advanced or paid to the debtor, and

(b)

the amount that the institution or person was required under that subsection to pay to the Receiver General.

(7)

If a person carries on business under a name or style other than the person’s own name, notification to the person of a requirement under subsection (1) or (2) may be addressed to the name or style under which the person carries on business and, in the case of personal service, is validly served if it is left with an adult person employed at the place of business of the addressee.

Service

Service — partnerships

(8) If persons carry on business in partnership, notification to the persons of a requirement under subsection (1) or (2) may be addressed to the partnership name and, in the case of personal service, is deemed to be validly served if it is served on one of the partners or left with an adult person employed at the place of business of the partnership.

Effect of payment as required

(9) If an amount that would otherwise have been payable to or on behalf of a debtor is paid by a person to the Receiver General pursuant to a notice served on the person under this section or pursuant to an assessment under section 97.44, the person is deemed, for all purposes, to have paid the amount to or on behalf of the debtor.

Application to Her Majesty in right of a province

(10) Provisions of this Part that provide that a person who has been required by the Minister to pay to the Receiver General an amount that would otherwise be loaned,

advanced or paid to a debtor who is liable to make a payment under this Act apply to Her Majesty in right of a province.

2001, c. 25, s. 58.

Liability — non-arm’s length transfers

97.29 (1) If a person transfers property, either directly or indirectly, by means of a trust or by any other means, to the transferor’s spouse or common-law partner or an individual who has since become the transferor’s spouse or common-law partner, an individual who was under eighteen years of age, or 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 an amount equal to the lesser of

(a) 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 the time of transfer 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 297(3) of the Excise Act, 2001, subsection 325(2) of the Excise Tax Act and subsection 160(2) of the Income Tax Act in respect of the property exceeds the amount paid by the transferor in respect of the amount so assessed, and

(b)

the total of all amounts each of which is

(i)

an amount that the transferor is liable to pay under this Act, or

(ii)

interest or a penalty for which the transferor is liable as of the time of transfer. However, nothing in this subsection limits the liability of the transferor under any other provision of this Act.

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 (4), equal to the same proportion of the fair market value of that property at that time.

Rules applicable

(3)

If a transferor and transferee have, under subsection (1), become jointly and severally or solidarily liable in respect of all or part 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 discharges, to the extent of the payment, the joint liability; and

(b)

a payment by the transferor on account of the transferor’s liability discharges the transferee’s liability only 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 made jointly and severally or solidarily liable.

Transfers to spouse or common-law partner

(4) Despite subsection (1), if at any time a debtor transfers property to the debtor’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 debtor and the debtor’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)(a), the fair market value at that time of the property so transferred is deemed to be nil. However, nothing in this subsection limits the liability of the debtor under any other provision of this Act.

Related persons

(5) For the purposes of this section,

(a)

related persons are deemed not to deal with each other at arm’s length, and it is a question of fact whether persons not related to each other were, at any particular time, dealing with each other at arm’s length;

(b)

persons are related to each other if they are related persons within the meaning of subsections 251(2) to (6) of the Income Tax Act, except that references in those subsections to “corporation” are to be read as references to “corporation or partnership”, and references in those subsections to “shares” or “shareholders” are, in respect of a partnership, to be read as references to “rights” or “partners”, respectively; and

(c)

a member of a partnership is deemed to be related to the partnership.

Definitions

(6) The definitions in this subsection apply in this section.

“common-law partner”

« conjoint de fait » “common-law partner” has the same meaning as in subsection 248(1) of the Income Tax Act except that references to “taxpayer” in that definition are to be read as references to “debtor”.

“common-law partnership”

« union de fait » “common-law partnership” has the same meaning as in subsection 248(1) of the Income Tax Act.

“property” « bien » “property” includes money.

2001, c. 25, s. 58; 2002, c. 22, s. 408.

ACQUISITION OF PROPERTY AND SEIZURES

Acquisition of debtor’s property

97.3 For the purpose of collecting amounts owed by a debtor, the Minister may purchase or otherwise acquire any interest in the debtor’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 so acquired in any manner that the Minister considers reasonable.

2001, c. 25, s. 58.

Moneys seized from debtor

97.31 (1) If the Minister has knowledge or suspects that a person is holding moneys that were seized by a police officer, in the course of administering or enforcing the criminal law of Canada, from a debtor and that are restorable to the debtor, the Minister may, by notice in writing, require that person to turn over the moneys otherwise restorable to the debtor, in whole or in part, to the Receiver General on account of the debtor’s liability under this Act.

Receipt

(2) A receipt issued for moneys turned over is a good and sufficient discharge of the requirement to restore the moneys to the debtor to the extent of the amount so turned over.

2001, c. 25, s. 58.

Seizure of chattels

97.32 (1) If a person fails to pay an amount as required under this Act, the Minister may give thirty days notice to the person by registered or certified mail addressed to the person at their latest known address of the Minister’s intention to direct that the person’s goods and chattels be seized and sold. If the person fails to make the payment before the expiration of the thirty days, the Minister may issue a certificate of the failure and direct that the person’s goods and chattels be seized.

Sale of seized property

(2) Seized property must be kept for ten days at the expense and risk of the owner

and, if the owner does not pay the amount due together with all expenses within the ten days, the property seized shall be sold by public auction.

Notice of sale

(3) Except in the case of perishable goods, notice of the sale setting out the time and place of the sale together with a general description of the property to be sold must be published, a reasonable time before the goods are sold, in one or more newspapers of general local circulation.

Surplus

(4) Any surplus resulting from a sale, after deduction of the amount owing and all expenses, must be paid or returned to the owner of the property seized.

Exemption from seizure

(5) Goods and chattels of any person that would be exempt from seizure under a

writ of execution issued out of a superior court of the province in which the seizure is made are exempt from seizure under this section.

2001, c. 25, s. 58.

Person leaving Canada

97.33 (1) If the Minister suspects that a person who is liable to pay an amount under this Act or would be so liable if the time for payment of the amount had arrived has left or is about to leave Canada, the Minister may, before the day otherwise fixed for payment, by notice in writing, demand payment of the amount. Despite any other provision of this Act, the person shall pay the amount immediately.

Failure to pay

(2) If a person fails to pay an amount as required, the Minister may direct that the goods and chattels of the person be seized and subsections 97.32(2) to (5) apply.

2001, c. 25, s. 58.

COLLECTION RESTRICTIONS

Collection action delayed

97.34 (1) If a person is liable for the payment of an amount under this Act, if an amount is demanded in a notice served under section 109.3 or 124, or if an amount is demanded under paragraph 133(1)(c) or subsection 133(1.1) in a notice served under subsection 131(2), the Minister must not, for the purpose of collecting the amount, take the following actions until the ninety-first day after the day notice is given to the debtor:

(a)

commence legal proceedings in a court;

(b)

certify the amount under section 97.24;

(c)

require the retention of the amount by way of deduction or set-off under section 97.26;

(d)

require a person or institution to make a payment under section 97.28;

(e)

require a person to turn over moneys under subsection 97.31(1); or

(f)

give a notice, issue a certificate or make a direction under subsection 97.32(1).

Appeal to Federal Court

(2) If a person has appealed a decision of the Minister of Public Safety and Emergency Preparedness to the Federal Court under section 97.23 or 135, the Minister must not take any action described in subsection (1) to collect the amount in controversy before the date of the decision of the Court or the day on which the person discontinues the appeal.

Reference to Canadian International Trade Tribunal

(3) If the President has referred a question to the Canadian International Trade Tribunal under section 70, the Minister must not take any action described in subsection (1) to collect the amount in controversy before the day on which the question is determined by the Tribunal.

Effect of appeal

(4)

If a person has made a request under section 60 or 129 or has appealed under section 67 or 68 and the person agrees in writing with the Minister of Public Safety and Emergency Preparedness to delay proceedings on the request or appeal, as the case may be, until judgment has been given in another action before the Federal Court, the Canadian International Trade Tribunal or the Supreme Court of Canada, in which action the issue is the same or substantially the same as that raised in the request or appeal of the person, the Minister may take any of the actions described in subsection (1) for the purpose of collecting the amount payable, or a part of the amount payable, determined in a manner consistent with the decision or judgment in the other action at any time after the Minister of Public Safety and Emergency Preparedness notifies the person in writing that

(a)

the decision of the Canadian International Trade Tribunal or Federal Court in that action has been mailed to the Minister of Public Safety and Emergency Preparedness;

(b)

judgment has been pronounced by the Federal Court of Appeal in that action; or

(c)

judgment has been delivered by the Supreme Court of Canada in that action.

Effect of taking security

(5) The Minister must not, for the purpose of collecting an amount payable, or a part of an amount payable, under this Act, take any of the actions described in subsection (1) if a person has given security to the Minister of Public Safety and Emergency Preparedness when requesting or appealing from a decision of that Minister or the President.

2001, c. 25, s. 58; 2002, c. 8, s. 193; 2005, c. 38, ss. 78, 85, 145.

Authorization to proceed immediately

97.35 (1) Despite section 97.34, if, on ex parte application by the Minister, a judge is satisfied that there are reasonable grounds to believe that the collection of all or any part of an amount assessed or demanded under this Act would be jeopardized by a delay in the collection of that amount, the judge shall, on any terms that the judge considers reasonable in the circumstances, authorize the Minister to immediately take any action described in that section to collect the amount.

Notice not sent

(2) An authorization may be granted by a judge notwithstanding that a notice in respect of the amount has not been sent to the debtor at or before the time the application is made if the judge is satisfied that the receipt of the notice by the debtor would likely further jeopardize the collection of the amount and, for the purposes of sections 97.22, 97.24, 97.26, 97.28, 97.31 and 97.32, the amount in respect of which an authorization is granted is deemed to be an amount payable under this Act.

Affidavits

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

Service of authorization

(4) An authorization must be served by the Minister on the debtor 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, if a notice has not been sent to the debtor at or before the time of the application, the notice is to be served together with the authorization.

How service effected

(5) Service on a debtor must be effected by personal service or in accordance with the directions of a judge.

Application to judge for direction

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

Review of authorization

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

Limitation period for review application

(8) An application under subsection (7) must be made

(a)

within thirty days after the day on which the authorization was served on the debtor 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 was practicable.

Hearing in camera

(9) An application may, on request of the debtor, be heard in camera, if the debtor

establishes to the satisfaction of the judge that the circumstances of the case justify in camera proceedings.

Disposition of application

(10) On an application, the judge is to determine the question summarily and may

confirm, set aside or vary the authorization and make any other order that the judge considers appropriate.

Directions

(11) 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 direction in this section in respect of the matter, a judge may give any direction in respect of the matter that, in the opinion of the judge, is appropriate.

No appeal from review order

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

2001, c. 25, s. 58.

TRUSTEES, RECEIVERS AND PERSONAL REPRESENTATIVES

Bankruptcies

97.36 (1) The following rules apply to a person who is a bankrupt:

(a)

the trustee in bankruptcy is the agent of the bankrupt and any act performed by the trustee in the administration of the estate of the bankrupt or in the carrying on of any business of the bankrupt is deemed to have been made by the trustee as agent of the bankrupt;

(b)

the estate of the bankrupt is not a trust or an estate;

(c)

the property and money of the bankrupt immediately before the day of the bankruptcy does not pass to or vest in the trustee in bankruptcy on the bankruptcy order being made or the assignment in bankruptcy being filed but remains vested in the bankrupt;

(d)

the trustee in bankruptcy, and not the bankrupt, is liable for the payment of all amounts (other than amounts that relate solely to activities in which the bankrupt begins to engage on or after the day of the bankruptcy and to which the bankruptcy does not relate) that become payable by the bankrupt under this Act during the period beginning on the day immediately after the day the trustee became the trustee in bankruptcy of the bankrupt and ending on the day the discharge of the trustee is granted under the Bankruptcy and Insolvency Act, except that

(i)

the trustee is liable for the payment of amounts that became payable by the bankrupt after the day of the bankruptcy only to the extent of the property and money of the bankrupt in possession of the trustee available to satisfy the liability, and

(ii)

the trustee is not liable for the payment of any amount for which a receiver is liable under section 97.37,

(e)

if, on or after the day of bankruptcy, the bankrupt begins to engage in particular activities to which the bankruptcy does not relate, the particular activities are deemed to be separate from the activities of the person to which the bankruptcy relates as though the particular activities were activities of a separate person;

(f)

subject to paragraph (h), the trustee in bankruptcy shall perform all the obligations under this Act of the bankrupt in respect of the activities of the bankrupt to which the bankruptcy relates for the period beginning on the day immediately after the day of bankruptcy and ending on the day the discharge of the trustee is granted under the Bankruptcy and Insolvency Act;

(g)

subject to paragraph (h), if the bankrupt has not on or before the day of bankruptcy fulfilled all of their obligations under this Act in respect of any activities of the bankrupt on or before the day of bankruptcy, the trustee in bankruptcy shall fulfil those obligations, unless the Minister waives in writing the requirement for the trustee to do so;

(h)

if there is a receiver with authority in respect of a business, a property, affairs or assets of the bankrupt, the trustee in bankruptcy is not required to perform the obligations of the bankrupt under this Act to the extent that the receiver is required under section 97.37 to perform those obligations; and

(i)

the property and money held by the trustee in bankruptcy for the bankrupt on the day an order of absolute discharge of the bankrupt is granted under the Bankruptcy and Insolvency Act does not pass to the bankrupt on the order being granted but is held by and vested in the bankrupt continuously since the day it was acquired by the bankrupt or the trustee, as the case may be.

Definition of “bankrupt”

(2) In this section, “bankrupt” has the same meaning as in subsection 2(1) of the Bankruptcy and Insolvency Act.

2001, c. 25, s. 58; 2004, c. 25, s. 196.

Definitions

97.37 (1) The definitions in this subsection apply in this section.

“business” « entreprise » “business” includes a part of a business.

“relevant assets” « actif pertinent » “relevant assets” of a receiver means

(a)

if the receiver’s authority relates to all the properties, businesses, affairs and assets of a person, all those properties, businesses, affairs and assets; and

(b)

if the receiver’s authority relates to only part of the properties, businesses, affairs or assets of a person, that part of the properties, businesses, affairs or assets, as the case may be.

Receivers

(2)

The following rules apply to a receiver who on a particular day is vested with the authority to manage, operate, liquidate or wind up any business or property, or to manage and care for the affairs and assets, of a person:

(a)

the receiver is an agent of the person and any act performed by the receiver in respect of the relevant assets of the receiver is deemed to have been performed, as the case may be, by the receiver as agent on behalf of the person;

(b)

the receiver is not a trustee of the estate of the person or any part of the estate of the person;

(c)

if the relevant assets of the receiver are a part and not all of the person’s businesses, properties, affairs or assets, the relevant assets of the receiver are deemed to be, throughout the period during which the receiver is acting as receiver of the person, separate from the remainder of the businesses, properties, affairs or assets of the person as though the relevant assets were businesses, properties, affairs or assets, as the case may be, of a separate person;

(d)

the person and the receiver are jointly and severally or solidarily liable for the payment of all amounts that become payable by the person under this Act before or during the period during which the receiver is acting as receiver of the person to the extent that the amounts can reasonably be considered to relate to the relevant assets of the receiver or to the businesses, properties, affairs or assets of the person that would have been the relevant assets of the receiver if the receiver had been acting as receiver of the person at the time the amounts became payable except that

(i)

the receiver is liable for the payment of amounts that became payable before that period only to the extent of the property and money of the person in possession or under the control and management of the receiver after

(A)

satisfying the claims of creditors whose claims ranked, on the particular day, in priority to the claim of the Crown in respect of the amounts, and

(B)

paying any amounts that the receiver is required to pay to a trustee in bankruptcy of the person, and

(ii)

the payment by the person or the receiver of an amount in respect of the liability discharges the joint liability to the extent of that amount;

(e)

the receiver shall perform all the obligations, in respect of the relevant assets of the receiver for the period during which the receiver is acting as receiver, that are required under this Act to be performed by the person, as if the relevant assets were the only properties, businesses, affairs and assets of the person; and

(f)

if the person has not on or before the particular day fulfilled their obligations under this Act before the period during which the receiver was acting as receiver, the receiver shall fulfil those obligations for that period that relate to the businesses, properties, affairs or assets of the person that would have been the relevant assets of the receiver if the receiver had been acting as receiver of the person during that period, unless the Minister waives in writing the requirement for the receiver to do so.

2001, c. 25, s. 58.

Definitions

97.38 (1) The definitions in this subsection apply in this section and in section

97.39.

“trust” « fiducie » “trust” includes the estate of a deceased individual.

“trustee” « fiduciaire » “trustee” includes the personal representative of a deceased individual, but does not include a receiver.

Trustee’s liability

(2) Subject to subsection (3), each trustee of a trust is liable to satisfy every obligation imposed on the trust under this Act, whether the obligation was imposed during or before the period during which the trustee acts as trustee of the trust, but

the satisfaction of an obligation of a trust by one of the trustees of the trust discharges the liability of all other trustees of the trust to satisfy that obligation.

Joint and several or solidary liability

(3)

A trustee of a trust is jointly and severally or solidarily liable with the trust and each of the other trustees, if any, for the payment of all amounts that become payable by the trust under this Act before or during the period during which the trustee acts as trustee of the trust except that

(a)

the trustee is liable for the payment of amounts that became payable before that period only to the extent of the property and money of the trust under the control of the trustee; and

(b)

the payment by the trust or the trustee of an amount in respect of the liability discharges the joint liability to the extent of that amount.

Waiver

(4) The Minister may, in writing, waive the requirement for the personal representative of a deceased individual to fulfil the obligations under this Act in

respect of the activities of the deceased individual that occurred on or before the day the individual died.

Activities of a trustee

(5) For the purposes of this Act, if a person acts as trustee of a trust, anything done

by the person in the person’s capacity as trustee of the trust is deemed to have been done by the trust and not by the person.

2001, c. 25, s. 58.

Definition of “representative”

97.39 (1) In this section, “representative” means a person, other than a trustee in bankruptcy or a receiver, who is administering, winding up, controlling or otherwise dealing with any property, business, commercial activity or estate of another person.

Certificates for receivers

(2) Every receiver shall, before distributing to any person any property or money under the control of the receiver in the receiver’s capacity as receiver, obtain a

certificate from the Minister certifying that the following amounts have been paid or security for the payment of the amounts has been accepted by the Minister:

(a)

amounts that the person is or can reasonably be expected to become liable to pay under this Act at or before the time the distribution is made; and

(b)

amounts that the receiver is or can reasonably be expected to become liable to pay in the receiver’s capacity as receiver.

Certificates for representatives

(3) Every representative shall, before distributing to any person any property or money under the control of the representative in the representative’s capacity as representative, obtain a certificate from the Minister certifying that the following

amounts have been paid or that security for the payment of the amounts has been accepted by the Minister:

(a)

amounts that the person is or can reasonably be expected to become liable to pay under this Act at or before the time the distribution is made; and

(b)

amounts that the representative is or can reasonably be expected to become liable to pay in the representative’s capacity as representative.

Liability for failure to obtain certificate

(4) Any receiver or representative who distributes property or money without obtaining a certificate in respect of the amounts referred to in subsection (2) or (3) is personally liable for the payment of those amounts to the extent of the value of the property or money so distributed.

2001, c. 25, s. 58.

AMALGAMATIONS AND WINDINGS-UP

Amalgamations

97.4 (1) If two or more corporations (in this section each referred to as a “predecessor”) are merged or amalgamated to form one corporation (in this section referred to as the “new corporation”), the new corporation is, for the purposes of this Act, deemed to be a separate person from each of the predecessors and the same corporation as, and a continuation of, each predecessor.

Exception

(2) Subsection (1) does not apply to the merger or amalgamation of two or more corporations that is the result of the acquisition of property of one corporation by another corporation pursuant to the purchase of the property by the other corporation or as the result of the distribution of the property to the other corporation on the winding-up of the corporation.

2001, c. 25, s. 58.

Winding-up

97.41 For the purposes of this Act, if at any time a particular corporation is wound up and not less than 90% of the issued shares of each class of the capital stock of the particular corporation were, immediately before that time, owned by another corporation, the other corporation is deemed to be the same corporation as, and a continuation of, the particular corporation.

2001, c. 25, s. 58.

PARTNERSHIPS

Partnerships

97.42 (1) For the purposes of this Act, anything done by a person as a member of a partnership is deemed to have been done by the partnership in the course of the partnership’s activities and not to have been done by the person.

Joint and several or solidary liability

(2) A partnership and each member or former member (each of which is referred to in this subsection as the “member”) of the partnership (other than a member which

is a limited partner and is not a general partner) are jointly and severally or solidarily liable for

(a)

the payment of all amounts that become payable by the partnership under this Act before or during the period during which the member is a member of the partnership or, if the member was a member of the partnership at the time the partnership was dissolved, after the dissolution of the partnership, except that

(i)

the member is liable for the payment of amounts that become payable before that period only to the extent of the property and money that is regarded as property or money of the partnership in accordance with the laws of the province governing the partnership, and

(ii)

the payment by the partnership or by any member of the partnership of an amount in respect of the liability discharges the joint liability to the extent of that amount; and

(b)

all other obligations under this Act that arose before or during the period for which the partnership is liable or, if the member was a member of the partnership at the time the partnership was dissolved, the obligations that arose upon or as a consequence of the dissolution.

2001, c. 25, s. 58.

UNINCORPORATED BODIES

Compliance by unincorporated bodies

97.43 If any amount is required to be paid or any other thing is required to be done under this Act by a person (in this section referred to as the “body”) that is not an individual, corporation, partnership, trust or estate, the following persons are jointly and severally or solidarily liable to pay that amount or to comply with the requirement:

(a)

every member of the body holding office as president, chairperson, treasurer, secretary or similar officer of the body;

(b)

if there are no members referred to in paragraph (a), every member of any committee having management of the affairs of the body; and

(c)

if there are no members referred to in paragraph (a) or (b), every member of the body. The payment of the amount or the fullfilment of the requirement by a member is deemed to be compliance with the requirement.

2001, c. 25, s. 58.

ASSESSMENTS, OBJECTIONS AND APPEALS

Assessments

Assessments — garnishments and non-arms length transfers

97.44 (1) The Minister may assess any amount that a person is liable to pay

(a)

under section 97.28, before the expiry of four years after the notice from the Minister requiring the payment is issued to the person; and

(b)

under section 97.29, at any time. The Minister may reassess the amount or make an additional assessment.

Interest

(2) If a person has been assessed an amount under subsection (1), the person shall pay, in addition to the amount, interest at the prescribed rate for the period

beginning on the first day after the day the amount was assessed and ending on the day the amount is paid.

Exception

(3)

Paragraph (1)(a) does not apply in respect of a reassessment of a person made

(a)

to give effect to a decision on an objection or appeal; or

(b)

with the consent in writing of the person to dispose of an appeal.

When assessment may be made

(4)

An assessment under paragraph (1)(a) may be made at any time if the person to be assessed has

(a)

made a misrepresentation that is attributable to the person’s neglect, carelessness or wilful default;

(b)

committed fraud in supplying, or failing to supply, any information under this Act; or

(c)

filed a waiver under subsection (5) that is in effect at that time.

Waiver

(5) Any person may, within the time otherwise limited by paragraph (1)(a) for assessing the person, waive the application of that paragraph by filing with the Minister a waiver in the prescribed form specifying the matter in respect of which the person waives the application of that paragraph.

Revoking waiver

(6) Any person who files a waiver may revoke the waiver on six months notice to the Minister by filing with the Minister a notice of revocation of the waiver in the prescribed form.

2001, c. 25, s. 58.

Liability not affected

97.45 (1) Liability under this Part to pay any amount is not affected by an incorrect or incomplete assessment or by the fact that no assessment has been made.

Assessment deemed valid

(2) Subject to being reassessed or vacated as a result of an objection or appeal under this Part, an assessment is valid and binding, despite any error, defect or omission in the assessment or in any proceeding under this Part relating to it.

Irregularities

(3) An appeal from an assessment must not be allowed by reason only of an irregularity, informality, omission or error on the part of any person in the observation of any directory provision of this Part.

2001, c. 25, s. 58.

Notice of assessment

97.46 After making an assessment, the Minister must send to the person assessed a notice of assessment.

2001, c. 25, s. 58.

Assessment before collection

97.47 (1) The Minister may not collect an amount under section 97.44 unless that amount has been assessed.

Payment of remainder

(2) An amount that is unpaid by a person and the subject of a notice of assessment is payable immediately by the person to the Receiver General.

Security if objection or appeal

(3) If a person objects to or appeals from an assessment under this Part, the Minister shall accept security, in an amount and a form satisfactory to the Minister, given by or on behalf of the person, for the payment of any amount that is in controversy.

2001, c. 25, s. 58.

Objections and Appeals Objection to assessment

97.48 (1) Any person who has been assessed under section 97.44 and who objects to the assessment may, within ninety days after the day notice of the assessment is sent to the person, file with the Minister a notice of objection in the prescribed form and manner setting out the reasons for the objection and all relevant facts.

Issues to be decided

(2)

If a person objects to an assessment, the notice of objection must

(a)

reasonably describe each issue to be decided;

(b)

specify in respect of each issue the relief sought, expressed as the change in any amount that is relevant for the purposes of the assessment; and

(c)

provide the facts and reasons relied on by the person in respect of each issue.

Late compliance

(3) If a notice of objection filed by a person to whom subsection (2) applies does not include the information required by paragraph (2)(b) or (c) in respect of an issue to be decided that is described in the notice, the Minister may in writing request the person to provide the information, and those paragraphs are deemed to have been complied with in respect of the issue if, within 60 days after the request is made, the person submits the information in writing to the Minister.

Limitation on objections

(4)

If a person has filed a notice of objection to an assessment and the Minister makes a particular assessment under subsection (8) pursuant to the notice of objection or in accordance with an order of a court vacating, varying or restoring an assessment or referring an assessment back to the Minister for reconsideration and reassessment, the person may object to the particular assessment in respect of an issue

(a)

only if the person complied with subsection (2) in the notice with respect to that issue; and

(b)

only with respect to the relief sought in respect of that issue as specified by the person in the notice.

Application of subsection (4)

(5) If a person has filed a notice of objection to an assessment (in this subsection referred to as the “earlier assessment”) and the Minister makes a particular assessment under subsection (8) pursuant to the notice of objection, subsection (4) does not limit the right of the person to object to the particular assessment in respect of an issue that was part of the particular assessment and not a part of the earlier assessment.

Limitation on objections

(6) Despite subsection (1), no objection may be made by a person in respect of an issue for which the right of objection has been waived in writing by the person.

Acceptance of objection

(7)

The Minister may accept a notice of objection even if it was not filed in the prescribed manner.

(8)

On receipt of a notice of objection, the Minister must, without delay, reconsider the assessment and vacate or confirm the assessment or make a reassessment.

Consideration of objection

Waiving reconsideration

(9) If, in a notice of objection, a person who wishes to appeal directly to the Tax

Court of Canada requests the Minister not to reconsider the assessment objected to, the Minister may confirm the assessment without reconsideration.

Notice of decision

(10) After reconsidering or confirming an assessment, the Minister must send to the person objecting a notice of the Minister’s decision by registered or certified mail.

2001, c. 25, s. 58.

Appeal to the Tax Court of Canada

97.49 If a person files a notice of objection to an assessment and the Minister sends to the person a notice of a reassessment or an additional assessment, in respect of any matter dealt with in the notice of objection, the person may, within ninety days after the day the notice of reassessment or additional assessment was sent by the Minister,

(a)

appeal to the Tax Court of Canada; or

(b)

if an appeal has already been instituted in respect of the matter, amend the appeal by joining to it an appeal in respect of the reassessment or additional assessment in any manner and on any terms that the Court directs.

2001, c. 25, s. 58.

Extension of time by Minister