Excise Tax Act (R.S.C., 1985, c. E-15)

Act current to 2017-07-03 and last amended on 2017-07-01. Previous Versions

DIVISION IVTax on Imported Taxable Supplies

Marginal note:Definitions

 The following definitions apply in this Division.

Canadian activity

Canadian activity of a person means an activity of the person carried on, engaged in or conducted in Canada. (activité au Canada)

ceding commission

ceding commission means an amount that is paid to a particular insurer by another insurer under an agreement for the supply of a financial service that includes the issuance, renewal, variation or transfer of ownership of a policy of reinsurance issued by the other insurer in respect of one or more particular insurance policies issued by the particular insurer and that compensates the particular insurer for property acquired, manufactured or produced, and for services acquired or performed, exclusively in Canada by the particular insurer in order to issue and administer the particular insurance policies. (commission de réassurance)

duty

duty means anything done by an employee in the course of, or in relation to, the office or employment of the employee. (tâche)

employee

employee includes an individual who agrees to become an employee. (salarié)

external charge

external charge for a specified year of a qualifying taxpayer in respect of an outlay or expense described in any of paragraphs 217.1(2)(a) to (c) means the amount in respect of the outlay or expense determined by the formula

A – B

where

A
is the amount of the outlay or expense that
  • (a) is allowed as a deduction, an allowance or an allocation for a reserve under the Income Tax Act in computing the qualifying taxpayer’s income for the specified year, or would be so allowed if

    • (i) the qualifying taxpayer’s income were computed in accordance with that Act,

    • (ii) the qualifying taxpayer carried on a business in Canada, and

    • (iii) that Act applied to the qualifying taxpayer, and

  • (b) may reasonably be regarded as being applicable to a Canadian activity of the qualifying taxpayer; and

B
is the total of all amounts, each of which is included in the amount determined under the description of A and is
  • (a) a permitted deduction for the specified year or a preceding specified year of the qualifying taxpayer, other than a returned commission included in paragraph (b), or

  • (b) if a particular amount, included in the amount determined under the description of A, is any part of the value of the consideration for a supply made to the qualifying taxpayer of a financial service that includes the issuance, renewal, variation or transfer of ownership of a policy of reinsurance in respect of one or more particular insurance policies issued by the qualifying taxpayer, an amount (in this description referred to as a returned commission) included in the particular amount that

    • (i) is attributable to expenses incurred exclusively in Canada by the qualifying taxpayer to issue and administer the particular insurance policies,

    • (ii) is returned to the qualifying taxpayer as a ceding commission in respect of the particular insurance policies, and

    • (iii) is required to be included under the Income Tax Act in computing the qualifying taxpayer’s income for the specified year or for another specified year of the qualifying taxpayer, or would be so required to be included if the conditions set out in subparagraphs (a)(i) to (iii) of the description of A applied to the qualifying taxpayer. (frais externes)

imported taxable supply

imported taxable supply means

  • (a) a taxable supply (other than a zero-rated or prescribed supply) of a service made outside Canada to a person who is resident in Canada, other than a supply of a service that is

    • (i) acquired for consumption, use or supply exclusively in the course of commercial activities of the person or activities that are engaged in exclusively outside Canada by the person and that are not part of a business or an adventure or concern in the nature of trade engaged in by the person in Canada,

    • (ii) consumed by an individual exclusively outside Canada (other than a training service the supply of which is made to a person who is not a consumer),

    • (iii) in respect of real property situated outside Canada,

    • (iv) a service (other than a custodial or nominee service in respect of securities or precious metals of the person) in respect of tangible personal property that is

      • (A) situated outside Canada at the time the service is performed, or

      • (B) exported as soon after the service is performed as is reasonable having regard to the circumstances surrounding the exportation and is not consumed, used or supplied in Canada after the service is performed and before the exportation of the property,

    • (v) a transportation service, or

    • (vi) a service rendered in connection with criminal, civil or administrative litigation outside Canada, other than a service rendered before the commencement of such litigation,

  • (b) a taxable supply (other than a zero-rated or prescribed supply) of tangible personal property made by a non-resident person who is not registered under Subdivision d of Division V to a recipient who is a registrant where

    • (i) physical possession of the property is transferred to the recipient in Canada by another registrant who

      • (A) made a supply in Canada of the property by way of sale, or a supply in Canada of a service of manufacturing or producing the property, to a non-resident person, or

      • (B) acquired physical possession of the property for the purpose of making a supply of a commercial service in respect of the property to a non-resident person,

    • (ii) the recipient gives the other registrant a certificate of the recipient described in paragraph 179(2)(c), and

    • (iii) the recipient is not acquiring the property for consumption, use or supply exclusively in the course of commercial activities of the recipient or the property is a passenger vehicle that the recipient is acquiring for use in Canada as capital property in commercial activities of the recipient and that has a capital cost to the recipient exceeding the amount deemed under paragraph 13(7)(g) or (h) of the Income Tax Act to be the capital cost of the vehicle to the recipient for the purposes of section 13 of that Act,

  • (b.1) a taxable supply (other than a zero-rated or prescribed supply) of tangible personal property made at a particular time by a non-resident person who is not registered under Subdivision d of Division V to a particular recipient who is resident in Canada, where

    • (i) the property is delivered or made available in Canada to the particular recipient and the particular recipient is not a registrant who is acquiring the property exclusively for consumption, use or supply in the course of commercial activities of the recipient, and

    • (ii) the non-resident person previously made a taxable supply of the property by way of lease, licence or similar arrangement to a registrant who was not dealing at arm’s length with the non-resident person or who was related to the particular recipient, the property was delivered or made available in Canada to the registrant, the registrant was entitled to claim an input tax credit in respect of the property or was not required to pay tax under this Division in respect of the supply only because the registrant acquired the property exclusively for consumption, use or supply in the course of commercial activities of the registrant, and that supply was the last supply of the property made before the particular time by the non-resident person to a registrant,

  • (b.11) a particular taxable supply (other than a zero-rated supply) of property by way of lease, licence or similar arrangement that is deemed under subsection 143(1) to be made outside Canada to a recipient (in this paragraph referred to as the “lessee”) who is resident in Canada, if

    • (i) a previous supply of the property to the lessee was made by way of lease, licence or similar arrangement (in this paragraph referred to as the “first lease”) that was deemed under subsection 178.8(4) to be made in Canada,

    • (ii) the agreement for the particular taxable supply is an agreement (in this subparagraph referred to as a “subsequent lease”) that results from the assignment of, or that succeeds, upon the renewal or variation of, the first lease or a subsequent lease, and

    • (iii) the lessee is not a registrant who is acquiring the property for consumption, use or supply exclusively in the course of commercial activities of the lessee;

  • (b.2) a taxable supply of a continuous transmission commodity, if the supply is deemed under section 143 to be made outside Canada to a registrant by a person who was the recipient of a supply of the commodity that was a zero-rated supply included in section 15.1 of Part V of Schedule VI or that would, but for subparagraph (a)(v) of that section, have been included in that section, and the registrant is not acquiring the commodity for consumption, use or supply exclusively in the course of commercial activities of the registrant,

  • (b.3) a supply, included in section 15.2 of Part V of Schedule VI, of a continuous transmission commodity that is neither exported, as described in paragraph (a) of that section, nor supplied, as described in paragraph (b) of that section, by the recipient and the recipient is not acquiring the commodity for consumption, use or supply exclusively in the course of commercial activities of the recipient,

  • (c) a taxable supply (other than a zero-rated or prescribed supply) of intangible personal property made outside Canada to a person who is resident in Canada, other than a supply of property that

    • (i) is acquired for consumption, use or supply exclusively in the course of commercial activities of the person or activities that are engaged in exclusively outside Canada by the person and that are not part of a business or an adventure or concern in the nature of trade engaged in by the person in Canada,

    • (ii) may not be used in Canada, or

    • (iii) relates to real property situated outside Canada, to a service to be performed wholly outside Canada or to tangible personal property situated outside Canada,

  • (c.1) a taxable supply made in Canada of intangible personal property that is a zero-rated supply only because it is included in section 10 or 10.1 of Part V of Schedule VI, other than

    • (i) a supply that is made to a consumer of the property, or

    • (ii) a supply of intangible personal property that is acquired for consumption, use or supply exclusively in the course of commercial activities of the recipient of the supply or activities that are engaged in exclusively outside Canada by the recipient of the supply and that are not part of a business or adventure or concern in the nature of trade engaged in by that recipient in Canada,

  • (d) a supply of property that is a zero-rated supply only because it is included in section 1.1 of Part V of Schedule VI, if the recipient is not acquiring the property for consumption, use or supply exclusively in the course of commercial activities of the recipient and

    • (i) an authorization of the recipient to use the certificate referred to in that section is not in effect at the time the supply is made, or

    • (ii) the recipient does not export the property in the circumstances described in paragraphs 1(b) to (d) of that Part; or

  • (e) a supply of property that is a zero-rated supply only because it is included in section 1.2 of Part V of Schedule VI, if the recipient is not acquiring the property for consumption, use or supply exclusively in the course of commercial activities of the recipient and

    • (i) an authorization of the recipient to use the certificate referred to in that section is not in effect at the time the supply is made, or

    • (ii) the recipient is not acquiring the property for use or supply as domestic inventory or as added property (as those expressions are defined in subsection 273.1(1)). (fourniture taxable importée)

loading

loading means any part of the value of the consideration for a supply of a financial service that is attributable to administrative expenses, an error or profit margin, business handling costs, commissions, communications expenses, claims handling costs, employee compensation or benefits, execution or clearing costs, management fees, marketing or advertising costs, occupancy or equipment expenses, operating expenses, acquisition costs, premium collection costs, processing costs or any other costs or expenses of a person that makes the supply, other than commissions for a specified financial service or the part of the value of the consideration that is equal to

  • (a) if the financial service includes the issuance, renewal, variation or transfer of ownership of an insurance policy but not of any other qualifying instrument, the total of

    • (i) the estimate of the net premium of the insurance policy, and

    • (ii) if the insurance policy is a policy of reinsurance, the margin for risk transfer of the insurance policy;

  • (b) if the financial service includes the issuance, renewal, variation or transfer of ownership of a qualifying instrument (other than an insurance policy), the estimate of the default risk premium that is directly associated with the qualifying instrument; and

  • (c) if the financial service includes the issuance, renewal, variation or transfer of ownership of an insurance policy and a qualifying instrument (other than an insurance policy), the amount determined by the formula

    A + B

    where

    A
    is the total of
    • (i) the estimate of the net premium of the insurance policy, and

    • (ii) if the insurance policy is a policy of reinsurance, the margin for risk transfer of the insurance policy, and

    B
    is the estimate of the default risk premium that is directly associated with the qualifying instrument. (chargement)
margin for risk transfer

margin for risk transfer means an amount payable to a particular insurer by another insurer under an agreement for the supply of a financial service, which includes the issuance, renewal, variation or transfer of ownership of a policy of reinsurance issued by the particular insurer, that exclusively represents compensation for the assumption, by the particular insurer, of the risk of potential future claims under particular insurance policies issued by the other insurer and that is in addition to the estimate of the net premium of the policy of reinsurance. (marge de transfert de risques)

permitted deduction

permitted deduction for a specified year of a qualifying taxpayer means an amount that is

  • (a) consideration for a supply of property or a service, or the value of imported goods, upon which tax under this Part (other than section 218.01 or subsection 218.1(1.2)) became payable during the specified year by the qualifying taxpayer;

  • (b) tax referred to in paragraph (a) in respect of a supply or importation referred to in that paragraph;

  • (c) a provincial levy that is prescribed for the purposes of section 154 and is in respect of a supply referred to in paragraph (a);

  • (d) an amount that is deemed, under subsection 248(18) or (18.1) of the Income Tax Act, to be assistance repaid by the qualifying taxpayer in respect of property or a service referred to in paragraph (a);

  • (e) consideration for a supply of property or a service (other than a financial service) made to the qualifying taxpayer as part of a transaction or series of transactions in which all participants deal at arm’s length with the qualifying taxpayer, unless

    • (i) that consideration is included in paragraph (a), or

    • (ii) an activity carried on, engaged in or conducted outside Canada, through a qualifying establishment of the qualifying taxpayer or of a person related to the qualifying taxpayer, relates in any manner to the supply;

  • (f) qualifying compensation of an employee of the qualifying taxpayer that is paid in the specified year by the qualifying taxpayer if the employee was primarily in Canada while performing its duties during the specified year;

  • (g) interest that is paid or payable by the qualifying taxpayer as the consideration for a supply of a financial service made to the qualifying taxpayer (other than an amount paid or credited by the qualifying taxpayer, or deemed by Part I of the Income Tax Act to have been paid or credited in the specified year by the qualifying taxpayer, to a person as, on account or in lieu of payment of, or in satisfaction of, a management or administration fee or charge (within the meaning of subsection 212(4) of that Act));

  • (h) dividends;

  • (i) consideration (other than interest referred to in paragraph (g) or dividends referred to in paragraph (h)) for a specified arm’s length supply made to the qualifying taxpayer;

  • (j) consideration (other than interest referred to in paragraph (g) or dividends referred to in paragraph (h)) for a supply (other than a specified derivative supply) of a specified financial service made to the qualifying taxpayer;

  • (k) consideration (other than interest referred to in paragraph (g), dividends referred to in paragraph (h) or consideration referred to in paragraph (k.1)) for a specified non-arm’s length supply made to the qualifying taxpayer less the total of all amounts, each of which is a part of the value of the consideration and is loading;

  • (k.1) consideration (other than interest referred to in paragraph (g) or dividends referred to in paragraph (h)) for a specified non-arm’s length supply made to the qualifying taxpayer of a financial service of issuing, renewing, varying or transferring the ownership of a policy of reinsurance, issued by an insurer to the qualifying taxpayer, in respect of one or more particular insurance policies issued by the qualifying taxpayer, if

    • (i) the policy of reinsurance is in accordance with all applicable guidelines with respect to sound reinsurance practices and procedures, as amended from time to time, that are issued by the Superintendent or a provincial regulatory authority having powers similar to those of the Superintendent,

    • (ii) the qualifying taxpayer pays to the insurer, or to persons related to the insurer (each of which is referred to in this paragraph as an affiliate), amounts (each of which is referred to in this paragraph as a fee) under one or more agreements in writing, each of which is not the policy of reinsurance and is between the qualifying taxpayer and the insurer or an affiliate,

    • (iii) the fees include 99% or more of the total of all amounts, each of which

      • (A) is payable to the insurer or to an affiliate for property acquired, manufactured or produced, or for a service acquired or performed, in whole or in part outside Canada in respect of the policy of reinsurance, and

      • (B) does not represent

        • (I) the estimate of the net premium of the policy of reinsurance,

        • (II) the margin for risk transfer of the policy of reinsurance, or

        • (III) expenses incurred exclusively in Canada by the qualifying taxpayer to issue and administer the particular insurance policies,

    • (iv) each fee paid by the qualifying taxpayer to the insurer or an affiliate

      • (A) is commensurate with the arm’s length transfer price, as defined in subsection 247(1) of the Income Tax Act, for the provision of the property and services to which the fee relates, and

      • (B) is allowed as a deduction, an allowance or an allocation for a reserve under the Income Tax Act in computing the qualifying taxpayer’s income for a specified year, or would be so allowed if the conditions set out in subparagraphs (a)(i) to (iii) of the description of A in the definition qualifying consideration applied to the qualifying taxpayer, and

    • (v) the qualifying taxpayer pays or remits any amount that is payable or remittable under this Part by the qualifying taxpayer in respect of each fee paid by the qualifying taxpayer to the insurer or an affiliate;

  • (l) consideration (other than interest referred to in paragraph (g) or dividends referred to in paragraph (h)) for a specified derivative supply made to the qualifying taxpayer; or

  • (m) a prescribed amount. (déduction autorisée)

qualifying compensation

qualifying compensation of an employee means any salary, wages and other remuneration of the employee and any other amount that is required to be included as income from an office or employment in computing the income of the employee for the purposes of the Income Tax Act. (rétribution admissible)

qualifying consideration

qualifying consideration for a specified year of a qualifying taxpayer in respect of an outlay made, or expense incurred, outside Canada means the amount in respect of the outlay or expense determined by the formula

A – B

where

A
is the amount of the outlay or expense that
  • (a) is allowed as a deduction, an allowance or an allocation for a reserve under the Income Tax Act in computing the qualifying taxpayer’s income for the specified year, or would be so allowed if

    • (i) the qualifying taxpayer’s income were computed in accordance with that Act,

    • (ii) the qualifying taxpayer carried on a business in Canada, and

    • (iii) that Act applied to the qualifying taxpayer, and

  • (b) may reasonably be regarded as being applicable to a Canadian activity of the qualifying taxpayer; and

B
is the total of all amounts each of which is included in the amount determined under the description of A and is
  • (a) an amount that is a permitted deduction for the specified year or a preceding specified year of the qualifying taxpayer, other than an amount that is included in paragraph (b) or that is a returned commission included in paragraph (c),

  • (b) an amount that represents a cost to a qualifying establishment of the qualifying taxpayer in a country other than Canada, or a share of a profit of the qualifying taxpayer that is redistributed from a qualifying establishment of the qualifying taxpayer in Canada to a qualifying establishment of the qualifying taxpayer in a country other than Canada, that is solely attributable to the issuance, renewal, variance or transfer of ownership by the qualifying taxpayer of a financial instrument that is a derivative, provided that all or substantially all of the amount is

    • (i) an error or profit margin, or employee compensation or benefits, that is reasonably attributable to the issuance, renewal, variance or transfer of ownership, or

    • (ii) the estimate of the default risk premium that is directly associated with the derivative, or

  • (c) if a particular amount, included in the amount determined under the description of A, is any part of the value of the consideration for a supply made to the qualifying taxpayer of a financial service that includes the issuance, renewal, variation or transfer of ownership of a policy of reinsurance in respect of one or more particular insurance policies issued by the qualifying taxpayer, an amount (in this description referred to as a returned commission) included in the particular amount that

    • (i) is attributable to expenses incurred exclusively in Canada by the qualifying taxpayer to issue and administer the particular insurance policies,

    • (ii) is returned to the qualifying taxpayer as a ceding commission in respect of the particular insurance policies, and

    • (iii) is required to be included under the Income Tax Act in computing the qualifying taxpayer’s income for the specified year or for another specified year of the qualifying taxpayer, or would be so required to be included if the conditions set out in subparagraphs (a)(i) to (iii) of the description of A applied to the qualifying taxpayer. (contrepartie admissible)

qualifying establishment

qualifying establishment means a permanent establishment as defined in subsection 123(1) or a permanent establishment as defined in subsection 132.1(2). (établissement admissible)

qualifying instrument

qualifying instrument means money, a credit card voucher, a charge card voucher or a financial instrument. (instrument admissible)

qualifying service

qualifying service means a service or duty. (service admissible)

reporting period

reporting period[Repealed, 1997, c. 10, s. 42]

specified arm’s length supply

specified arm’s length supply means a supply (other than a specified derivative supply) of a financial service (other than a specified financial service) made to a qualifying taxpayer as part of a transaction or series of transactions in which all participants deal at arm’s length with the qualifying taxpayer. (fourniture déterminée entre personnes sans lien de dépendance)

specified derivative supply

specified derivative supply means a supply

  • (a) that is a supply of a financial service of issuing, renewing, varying or transferring the ownership of a financial instrument that is a derivative, or that is a supply made by an agent, salesperson or broker of arranging for the issuance, renewal, variance or transfer of ownership of a financial instrument that is a derivative; and

  • (b) for which all or substantially all of the value of the consideration is attributable to

    • (i) any error or profit margin, or employee compensation or benefits, reasonably attributable to the supply, and

    • (ii) amounts that are not loading. (fourniture déterminée d’instrument dérivé)

specified financial service

specified financial service means a financial service supplied to a qualifying taxpayer by an agent, salesperson or broker of arranging for the issuance, renewal, variation or transfer of ownership of a financial instrument that is property of a person other than the agent, salesperson or broker. (service financier déterminé)

specified non-arm’s length supply

specified non-arm’s length supply means a supply (other than a specified derivative supply) of a financial service (other than a specified financial service) that includes the issuance, renewal, variation or transfer of ownership of a qualifying instrument, made to a qualifying taxpayer as part of a transaction or series of transactions in which any participant does not deal at arm’s length with the qualifying taxpayer. (fourniture déterminée entre personnes ayant un lien de dépendance)

specified year

specified year of a person means

  • (a) in the case of a person that is described in paragraph (a) or (b) of the definition taxation year in subsection 123(1), the taxation year of the person;

  • (b) in the case of a person that is a registrant but is not described in paragraph (a) or (b) of the definition taxation year in subsection 123(1), the fiscal year of the person; and

  • (c) in any other case, the calendar year. (année déterminée)

taxing statute

taxing statute of a country means a statute of the country, or of a state, province or other political subdivision of the country, that imposes a levy or charge of general application that is an income or profits tax. (loi fiscale)

transaction

transaction includes an arrangement or event. (opération)

  • NOTE: Application provisions are not included in the consolidated text;
  • see relevant amending Acts. 1990, c. 45, s. 12;
  • 1993, c. 27, s. 83;
  • 1997, c. 10, s. 42;
  • 1999, c. 31, s. 86(F);
  • 2000, c. 30, s. 45;
  • 2001, c. 15, s. 7;
  • 2007, c. 18, s. 20, c. 35, s. 2;
  • 2010, c. 12, s. 61;
  • 2016, c. 7, s. 65.
 
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