Budget Implementation Act, 2004, No. 2 (S.C. 2005, c. 19)
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Assented to 2005-05-13
PART 22003, c. 15, s. 67AMENDMENTS TO THE FIRST NATIONS GOODS AND SERVICES TAX ACT
9. Section 15 of the Act is replaced by the following:
Marginal note:Amendment of Schedule 1
15. The Governor in Council may, by order, amend Schedule 1 by adding, deleting or varying the name of any first nation or of the governing body of any first nation or the description of the lands of any first nation.
10. The Act is amended by adding the following after section 16:
PART 2FIRST NATIONS SALES TAX — QUEBEC
Interpretation
Marginal note:Definitions
17. The following definitions apply in this Part and in Schedule 2.
“band law”
« texte législatif de bande »
“band law” means a law enacted by a council of the band under section 23.
“council of the band”
« conseil de bande »
“council of the band” has the same meaning as in subsection 2(1) of the Indian Act.
“direct”
« directe »
“direct” has the same meaning, for the purpose of distinguishing between a direct and an indirect tax, as in class 2 of section 92 of the Constitution Act, 1867.
“parallel Quebec law”
« loi québécoise parallèle »
“parallel Quebec law”, in respect of a band law, means the enactment, or those provisions of it, of Quebec to which the band law is similar.
“reserves in Quebec”
« réserves au Québec »
“reserves in Quebec”, of a band, means the reserves within Quebec that are described opposite the name of that band listed in Schedule 2.
“sales tax”
« taxe de vente »
“sales tax” means any tax of general application payable on a value, price or quantity basis by a person in respect of the sale, rental, supply, consumption or use of a property or service.
Application of Other Acts
Marginal note:Section 87 of the Indian Act and similar provisions
18. (1) The obligation to pay tax or any other amount that is required to be paid under a band law applies despite the application of the exemption under section 87 of the Indian Act and of any other exemption from taxation under any other Act of Parliament that is similar to the exemption under that section.
Marginal note:Section 89 of the Indian Act
(2) A band law may be administered and enforced by an agent of the band despite section 89 of the Indian Act.
Marginal note:Not subject to Statutory Instruments Act
19. A band law is not subject to the Statutory Instruments Act.
Marginal note:Application of section 23
20. A council of the band may enact a band law despite any other Act of Parliament that limits the authority of the council of the band to enact a law that imposes a tax.
Marginal note:Application of other Acts
21. If a law of Quebec provides that one or more laws of Quebec apply as if the tax imposed under a band law were imposed under a particular law of Quebec, all Acts of Parliament, other than this Act, apply as if the tax imposed under the band law were imposed under that particular law of Quebec.
Administration Agreement
Marginal note:Authority to enter into agreement
22. A council of the band may, on behalf of the band, enter into an administration agreement with the Government of Quebec in respect of a band law enacted by that council.
Delegation
Marginal note:Authority to impose a direct sales tax
23. (1) A council of the band that is listed in Schedule 2 may enact a law that imposes, within the reserves of the band in Quebec, a direct sales tax and any other amount that may be required to be paid in relation to the imposition of that direct sales tax.
Marginal note:Parallel Quebec law
(2) A law may not be enacted under subsection (1) unless the law has only one parallel Quebec law that is expressly identified in that law.
Marginal note:Force of law
(3) A law enacted under subsection (1) does not have the force of law unless
(a) an administration agreement between the council of the band and the Government of Quebec in respect of the law is in effect;
(b) the law is administered and enforced, and the direct sales tax imposed under that law is collected, in accordance with that administration agreement;
(c) the band, the council of the band and the band’s reserves in Quebec are listed in Schedule 2; and
(d) its parallel Quebec law is in force.
Marginal note:Conformity with Indian Act
(4) A law enacted under subsection (1) is valid only if the power of the council of the band to enact the law is exercised in conformity with paragraph 2(3)(b) of the Indian Act and no such law is invalid by reason of any defect in form.
Marginal note:Criminal law exclusion
(5) Nothing in this Part shall be construed as conferring on a council of the band the power to make an enactment in respect of criminal law.
Marginal note:Coming into force — law under section 23
24. Subject to subsection 23(3), a band law comes into force on the date specified in an administration agreement with the Government of Quebec in respect of that law.
Marginal note:Proof of law
25. A copy of a band law is, if it is certified to be a true copy by the Minister or a person authorized by the Minister, evidence that the law was duly enacted by the council of the band without proof of the signature or official character of the Minister or the person authorized by the Minister.
Marginal note:Publication of law
26. A council of the band shall on demand provide a copy of any band law enacted by that council and shall publish a copy of every such law in a newspaper that has general circulation in the place where the law applies and in the First Nations Gazette, but no such law shall be invalid by reason of a failure to publish it.
Marginal note:Expenditures
27. The power of a council of the band to expend moneys received by the council under an administration agreement is validly exercised only if the power is exercised in conformity with paragraph 2(3)(b) of the Indian Act.
Marginal note:Indian moneys
28. Moneys raised under a band law are not Indian moneys within the meaning of subsection 2(1) of the Indian Act.
General
Marginal note:Amendment of Schedule 2
29. The Governor in Council may, by order, amend Schedule 2 by adding, deleting or varying the name of a band, a council of the band or the description of a band’s reserves in Quebec.
11. The schedule to the Act is renumbered as Schedule 1 and is amended by adding the following in alphabetical order:
| Column 1 | Column 2 | Column 3 |
|---|---|---|
| First Nation | Governing Body | Lands |
| Burrard, also known as, the Tsleil-Waututh Nation | Council of Burrard | Reserve of Burrand |
| Tla-o-qui-aht | Council of the Tla-o-qui-aht First Nations | Reserve of the Tla-o-qui-aht First Nations |
12. The Act is amended by adding, after Schedule 1, the Schedule 2 set out in the schedule to this Act.
PART 3AMENDMENTS TO THE INCOME TAX ACT AND CERTAIN OTHER ACTS AS A CONSEQUENCE AND A COORDINATING AMENDMENT
R.S., c. 1 (5th Supp.)Income Tax Act
13. (1) Section 40 of the Income Tax Act is amended by adding the following after subsection (3.6):
Marginal note:Exception — estate loss carried back
(3.61) If, in the course of administering the estate of a deceased taxpayer, the taxpayer’s legal representative elects in accordance with subsection 164(6) to treat all or any portion of the estate’s capital loss (determined without reference to subsections (3.4) and (3.6)) from the disposition of a share of the capital stock of a corporation as a capital loss of the deceased taxpayer from the disposition of the share, subsections (3.4) and (3.6) apply to the estate in respect of the loss only to the extent that the amount of the loss exceeds the portion of the loss to which the election applies.
(2) Subsection (1) applies to losses from dispositions that occur or occurred after March 22, 2004.
14. (1) Clause 53(2)(h)(i.1)(B) of the Act is amended by striking out the word “or” at the end of subclause (I), by adding the word “or” at the end of subclause (II) and by adding the following after subclause (II):
(III) that is an assessable distribution (as defined in subsection 218.3(1)) to the taxpayer,
(2) Subsection (1) applies after 2004.
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