Customs Act (R.S.C., 1985, c. 1 (2nd Supp.))

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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Amalgamations and Windings-up

Marginal note: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.

• Marginal note: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.

Marginal note: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.

Partnerships

Marginal note: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.

• Marginal note: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.

Unincorporated Bodies

Marginal note: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.

Assessments, Objections and Appeals

Assessments

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note:Notice of assessment

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

Marginal note:Assessment before collection

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

• Marginal note: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.

• Marginal note: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.

Objections and Appeals

Marginal note:Objection to assessment

• 97.48 (1) Any person who has been assessed under section 97.44 and who objects to the assessment may, within 90 days after the day the notice of the assessment is sent to the person, file with the Minister a notice of objection in the prescribed form and manner of filing setting out the reasons for the objection and all relevant facts.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Acceptance of objection

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

• Marginal note:Consideration of objection

  (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.

• Marginal note: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.

• Marginal note:Notice of decision

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

Marginal note: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.

Marginal note:Extension of time by Minister

• 97.5 (1) If no objection to an assessment is filed under section 97.48, within the time limit otherwise provided, a person may make an application to the Minister to extend the time for filing a notice of objection and the Minister may grant the application.

• Marginal note:Contents of application

  (2) The application must set out the reasons why the notice of objection was not filed within the time otherwise limited by this Part for doing so.

• Marginal note:How application made

  (3) The application must be made by delivering or mailing the application and a copy of the notice of objection to the Chief of Appeals in a Tax Services Office or Taxation Centre of the Canada Revenue Agency.

• Marginal note:Exception

  (4) The Minister may accept the application even if it was not delivered or mailed to the person or place specified in subsection (3).

• Marginal note:Duties of Minister

  (5) On receipt of the application, the Minister must, without delay, consider it, and notify the person of his or her decision by registered or certified mail.

• Marginal note:Date of objection if application granted

  (6) If the application is granted, the notice of objection is deemed to have been filed on the day the decision of the Minister is mailed to the person.

• Marginal note:When order to be made

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

  • (a) the application is made within one year after the expiration of the time otherwise limited by this Part for objecting; and

  • (b) the person demonstrates that

    • (i) within the time otherwise limited by this Part for objecting, 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 object to the assessment,

    • (ii) it would be just and equitable to grant the application, and

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