Excise Act, 2001 (S.C. 2002, c. 22)

Marginal note:Liability re transfers not at arm’s length

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

  • (a) their spouse or common-law partner or an individual who has since become their spouse or common-law partner,

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

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

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

  • (d) the amount determined by the formula

    A - B

    where

    A 

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

    B 

    is the amount, if any, by which the total of all amounts, if any, the transferee was assessed under subsection 160(2) of the Income Tax Act or subsection 325(2) of the Excise Tax Act in respect of the property exceeds the amount paid by the transferor in respect of the amounts so assessed, and

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

    • (i) an amount that the transferor is liable to pay under this Act in respect of the fiscal month in which the property was transferred or any preceding fiscal month, or

    • (ii) interest for which the transferor is liable as of that time.

  However, nothing in this subsection limits the liability of the transferor under any other provision of this Act.

• Marginal note:Fair market value of undivided interest

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

• Marginal note:Assessment

  (3) The Minister may at any time assess a transferee in respect of any amount payable by reason of this section, and, if the Minister sends a notice of assessment, sections 188 to 205 apply with any modifications that the circumstances require.

• Marginal note:Rules applicable

  (4) If a transferor and transferee have, by reason of subsection (1), become jointly and severally or solidarily liable in respect of 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 shall, to the extent of the payment, discharge the joint liability; and

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

• Marginal note:Special transfers to spouse or common-law partner

  (5) Despite subsection (1), if at any time an individual transfers property to their spouse or common-law partner under a decree, order or judgment of a competent tribunal or under a written separation agreement and, at that time, the individual and their spouse or common-law partner were separated and living apart as a result of a breakdown of their marriage or common-law partnership, for the purposes of paragraph (1)(d), 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 individual under any other provision of this Act.

• Marginal note:Definitions

  (6) The following definitions apply in this section.

  “common-law partner”

  « conjoint de fait »

  “common-law partner”, in relation to an individual, means a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year.

  “common-law partnership”

  « union de fait »

  “common-law partnership” means the relationship between two persons who are common-law partners of each other.

Evidence and Procedure

Marginal note:Venue

298. A prosecution for an offence under this Act may be instituted, heard and determined in the place where the offence was committed or the subject-matter of the prosecution arose, where the accused was apprehended or where the accused happens to be, or is carrying on business.

Marginal note:Service

• 299. (1) If the Minister is authorized or required to serve, issue or send a notice or other document on or to a person that

  • (a) is a partnership, the notice or document may be addressed to the name of the partnership;

  • (b) is a society, club, association, organization or other body, the notice or document may be addressed to the name of the body; and

  • (c) carries on business under a name or style other than the name of the person, the notice or document may be addressed to the name or style under which the person carries on business.

• Marginal note:Personal service

  (2) If the Minister is authorized or required to serve, issue or send a notice or other document on or to a person that carries on a business, the notice or document is deemed to have been validly served, issued or sent if it is

  • (a) in the case of a person that is a partnership, served personally on one of the partners or left with an adult person employed at the place of business of the partnership; or

  • (b) in any other case, left with an adult person employed at the place of business of the person.

Marginal note:Sending by mail

• 300. (1) For the purposes of this Act and subject to subsection (2), anything sent by registered, certified or first class mail is deemed to have been received by the person to whom it was sent on the day it was mailed.

• Marginal note:Paying by mail

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

Marginal note:Proof of service by mail

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

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

  • (b) such a request, notice or demand was sent by registered or certified mail on a specified day to a specified person and address; and

  • (c) the officer identifies as exhibits attached to the affidavit the post office certificate of registration of the letter or a true copy of the relevant portion of the certificate and a true copy of the request, notice or demand.

• Marginal note:Proof of personal service

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

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

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

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

• Marginal note:Proof of failure to comply

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

• Marginal note:Proof of time of compliance

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

• Marginal note:Proof of documents

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

• Marginal note:Proof of no appeal

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

• Marginal note:Presumption

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

• Marginal note:Proof of documents

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

• Marginal note:Mailing date

  (9) If a notice or demand that the Minister is required or authorized under this Act to send or mail to a person is mailed to the person, the day of mailing is deemed to be the date of the notice or demand.

• Marginal note:Date when assessment made

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

• Marginal note:Proof of return

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

• Marginal note:Proof of return — printouts

  (12) For the purposes of this Act, a document presented by the Minister purporting to be a printout of the information in respect of a person received under section 166 by the Minister shall be received as evidence and, in the absence of evidence to the contrary, is proof of the return filed by the person under that section.

• Marginal note:Proof of return — production of returns, etc.

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

• Marginal note:Evidence

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

• Marginal note:Probative force of copy

  (15) Any copy of an original record made under section 262 that is purported to be certified by the Minister or an officer to be a copy of the original record is evidence of the nature and content of the original record and has the same probative force as the original record would have if it were proven in the ordinary way.