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| This Act is current to November 26, 2024 | |||
| See the Tables of Legislative Changes for this Act’s legislative history, including any changes not in force. |
Part 9 — Administration and Enforcement
Division 1 — Inspections and Audits
194 (1) In this section, "specified location" means premises, a site, a vehicle, a boat, an aircraft or any other place or thing
(a) occupied or used by a person in relation to a business carried on by the person,
(b) where or in which the records of a person are kept, or
(i) tangible personal property is manufactured, sold, leased, stored or used,
(ii) software is developed, sold, stored or used, or
(iii) a taxable service is provided, sold or used.
(2) Except as limited by subsections (4) and (6), to determine whether this Act and the regulations are being or have been complied with, the director may enter at any reasonable time a specified location, occupied by a person, and may do any of the following at the specified location:
(a) inspect, audit and examine records;
(b) inspect tangible personal property manufactured, acquired, sold, leased, stored or used by the person;
(c) inspect software developed, provided, acquired or sold by the person;
(d) inspect a related service or a telecommunication service provided, acquired or sold by the person;
(e) inspect accommodation offered or available for sale, provided, acquired, sold or used by the person;
(f) inspect or ascertain the quantity, value or use of tangible personal property manufactured, acquired, sold, leased, stored or used by the person;
(g) inspect or ascertain the volume, value or use of software developed, provided, acquired, sold, stored or used by the person;
(h) inspect or ascertain the volume, value or use of a related service or a telecommunication service provided, acquired, sold, stored or used by the person;
(i) inspect or ascertain the volume, value or use of accommodation offered or available for sale, provided, acquired, sold or used by the person;
(j) inspect the specified location and any activities carried out at the specified location.
(3) A person occupying a specified location must
(a) produce all records as may be required by the director, and
(b) answer all questions of the director regarding the matters referred to in subsection (2).
(4) The power to enter a place under subsection (2) must not be used to enter a dwelling occupied as a residence without the consent of the occupier except under the authority of a warrant under subsection (5).
(5) On being satisfied by evidence on oath that there are in a place records or other things for which there are reasonable grounds to believe that they are relevant to the matters referred to in subsection (2), a justice may issue a warrant authorizing a person named in the warrant to enter the place in accordance with the warrant in order to exercise the powers referred to in subsection (2) (a) to (j).
(6) Except in accordance with the regulations, the power to inspect, audit and examine records under subsection (2) (a) must not be used to inspect, audit and examine a record that is in the possession of a lawyer if the lawyer at that time claims that a particular client or a particular former client of the lawyer has solicitor-client privilege in relation to the record.
(a) interfere with, hinder or molest a person doing anything that the person is authorized to do under this section, or
(b) prevent or attempt to prevent a person from doing anything that the person is authorized to do under this section.
195 When required by the director, a person must provide to the director all records that the director considers necessary to determine whether this Act and the regulations are being or have been complied with.
196 (1) For any purpose related to the administration or enforcement of this Act or the regulations, the director may, by demand notice, require from any person, in a manner specified by the director,
(b) any information or additional information,
(c) the production of any records, or
(2) A demand notice under subsection (1)
(a) must be given to the person in a manner referred to in section 229 (2) (a) to (e) or sent by registered mail to the last known address of the person according to the records of the director,
(b) must specify a reasonable time by which the person must comply with the demand notice, and
(c) in relation to a requirement under subsection (1) (d), may require the written statement to be made by way of affidavit or statutory declaration.
(3) A person to whom a demand notice is given under this section must comply with the notice within the time specified in the notice.
(4) An affidavit by the director in which are stated the facts necessary to establish
(a) compliance by the director with this section, or
(b) default by a person on whom a demand was made under this section
must be admitted as evidence in any court and is proof, in the absence of evidence to the contrary, of the facts stated.
196.1 A record certified by the director to be a copy of a record obtained by the director under this Act is evidence of the nature and content of the original.
196.2 (1) If the director is satisfied that it is necessary to attend at a location outside British Columbia for the purpose of determining whether a person is complying with or has complied with this Act and the regulations, the director may impose on the person a fee payable to the government in an amount not exceeding the amount calculated under subsection (2) in respect of attending at that location.
(2) Subject to the regulations, the director may calculate the amount for the purposes of subsection (1) based on
(a) fees set by the director, or
(b) a manner of calculating fees that is set by the director.
(3) For the purposes of subsection (2), the fees and manner set by the director may be different for different circumstances defined by the director or for attending at different locations.
(4) In imposing a fee under subsection (1), the director may not impose a fee in respect of attending at a location more than 4 years before the date of the first notice of assessment for that fee.
197 (1) Subject to subsection (3), the director must give a notice of assessment to the person liable to pay an amount assessed or imposed if the director
(a) makes an assessment under section 198 [assessment of tax not remitted by collector], 199 [assessment if amount not paid or remitted or if excess deduction or refund], 199.1 [assessment if joint and several liability for amount assessed or imposed against designated collector], 199.2 [assessment if joint and several liability for assessment or penalty] or 210 [assessment against board member], or
(b) imposes a fee under section 196.2 [fee for attending at location outside British Columbia] or imposes a penalty under any of the following provisions:
(i) section 202 [failure to register];
(ii) section 203 [failure to levy tax];
(iii) section 204 [incorrect information];
(iv) section 205 [failure to levy, remit or pay tax and excess deduction or refund];
(v) section 205.1 [failure to file return];
(vi) section 205.2 [repeated failure to file return];
(vii) section 205.3 [failure to provide required information];
(viii) section 205.4 [failure respecting information and records];
(ix) section 205.5 [interfering with investigation, inspection or audit];
(x) section 205.6 [misrepresentation by third party].
(1.1) Despite section 51 (1) (b) [notice of assessment] of the Carbon Tax Act, the director may include in a notice of assessment given to a person under subsection (1) of this section a fee imposed under section 43.1 [fee for attending at location outside British Columbia] of the Carbon Tax Act as if the fee were a fee imposed under section 196.2 of this Act if
(a) the director imposes on the person a fee under section 196.2,
(b) the director under the Carbon Tax Act imposes on the person a fee under section 43.1 of the Carbon Tax Act, and
(c) the director under the Carbon Tax Act authorizes the director under this Act to include the fee imposed under the Carbon Tax Act in the notice of assessment.
(1.2) Despite section 46 (1) (b) [notice of assessment] of the Motor Fuel Tax Act, the director may include in a notice of assessment given to a person under subsection (1) of this section a fee imposed under section 41.1 [fee for attending at location outside British Columbia] of the Motor Fuel Tax Act as if the fee were a fee imposed under section 196.2 of this Act if
(a) the director imposes on the person a fee under section 196.2,
(b) the director under the Motor Fuel Tax Act imposes on the person a fee under section 41.1 of the Motor Fuel Tax Act, and
(c) the director under the Motor Fuel Tax Act authorizes the director under this Act to include the fee imposed under the Motor Fuel Tax Act in the notice of assessment.
(2) If the director assesses interest under section 206 or 206.1, the director may give a notice of assessment to the person liable to pay the amount of interest assessed.
(3) In addition to, or as an alternative to, giving a notice of assessment under subsection (1) or (2), the director may give a notice of assessment to the custodian or trustee in bankruptcy of the person referred to in subsection (1) or (2).
(4) Evidence that a notice of assessment under subsection (1) or (2) has been given is proof, in the absence of evidence to the contrary, that the amount assessed or imposed under this Act is due and owing, and the onus of proving otherwise is on the person liable to pay the amount assessed or imposed.
(5) Subject to being amended, changed or varied on appeal or by reassessment, an assessment or penalty made or imposed under this Act is valid and binding despite any error, defect or omission in the assessment or penalty or in procedure.
(6) Subject to being amended, changed or varied by reassessment, a fee imposed under section 196.2 is valid and binding despite any error, defect or omission in the fee or in procedure.
198 If a collector fails to file a collector's return as required under this Act or if the records of a collector do not substantiate a collector's return filed by the collector, the director may
(a) estimate, in a manner and by a procedure the director considers adequate and expedient, the amount of tax that a collector was required to remit under section 179 but has not remitted, and
(b) make an assessment against the collector for the amount estimated under paragraph (a).
199 (1) If it appears from an inspection, audit or examination or from other information available to the director that a person has not paid the taxes the person is liable to pay as required under this Act, the director may
(a) calculate, in a manner and by a procedure the director considers adequate and expedient, the tax not paid, and
(b) make an assessment against the person for the amount calculated under paragraph (a).
(2) If it appears from an inspection, audit or examination or from other information available to the director that a person has levied tax or collected an amount as if it were tax and the person has not remitted the tax or the amount collected as required under this Act, the director must
(a) calculate, in a manner and by a procedure the director considers adequate and expedient, the tax or amount not remitted, and
(b) make an assessment against the person for the tax or amount calculated under paragraph (a).
(2.1) If it appears from an inspection, audit or examination or from other information available to the director that a person has deducted an amount under section 159 (3) [refund or deduction for bad debts] that was in excess of the amount that the person was entitled to deduct under that section, the director must
(a) calculate, in a manner and by a procedure the director considers adequate and expedient, the excess amount deducted, and
(b) make an assessment against the person in an amount equal to the amount calculated under paragraph (a) of this subsection.
(3) If it appears from an inspection, audit or examination or from other information available to the director that a person has received a refund of tax under this Act or has deducted an amount under section 160 (2) [refund to collector] that was in excess of the refund amount that was due to the person, the director must
(a) calculate, in a manner and by a procedure the director considers adequate and expedient, the excess amount refunded or deducted, and
(b) make an assessment against the person in an amount equal to the amount calculated under paragraph (a) of this subsection.
(3.1) If it appears from an inspection, audit or examination or from other information available to the director that a person is required under the regulations to repay all or part of a refund paid to the person under this Act, the director must
(a) calculate, in a manner and by a procedure the director considers adequate and expedient, the amount required to be repaid, and
(b) make an assessment against the person in an amount equal to the amount calculated under paragraph (a).
(4) If it appears from an inspection, audit or examination or from other information available to the director that a person has not paid an amount required to be paid under section 187 (2) [certificate required for bulk transaction], the director must
(a) calculate, in a manner and by a procedure the director considers adequate and expedient, the amount required to be paid under that section, and
(b) make an assessment against the person in an amount equal to the amount calculated under paragraph (a) of this subsection.
(5) If it appears from an inspection, audit or examination or from other information available to the director that a person has not paid an amount required to be paid under section 222 (4) [responsibility of person having control of property], the director must
(a) calculate, in a manner and by a procedure the director considers adequate and expedient, the amount required to be paid under that section, and
(b) make an assessment against the person in an amount equal to the amount calculated under paragraph (a) of this subsection.
199.1 (1) In this section, "designated collector" has the same meaning as in section 179.1.
(2) If a person is jointly and severally liable to pay an amount referred to in section 179.1 (8) (b) as an amount assessed or imposed against a designated collector in respect of tax, the director may assess the person for the following:
(a) the amount assessed under the following sections against the designated collector in respect of the tax, any related penalty and any interest on that amount and the penalty:
(i) section 198 [assessment of tax not remitted by collector];
(ii) section 199 (2) [assessment if amount not remitted];
(iii) section 199 (2.1) [assessment if excess deduction];
(iv) section 199 (3) [assessment of amount if excess deduction or refund];
(b) the amount imposed under section 203 [failure to levy tax] on the designated collector in respect of the tax, any related penalty and any interest on that amount and the penalty.
(3) Section 200 applies to an assessment made under subsection (2) (a) of this section as if the assessment were made under section 198 or 199.
(4) If the director makes an assessment under subsection (2) (b) against a person and the person pays to the government an amount in respect of a penalty imposed under section 203 (1) or (1.1), then section 203 (2.1) and (2.2) applies to the person as if the person were the collector in relation to the tax.
(5) Section 203 (3) and (4) applies to an assessment made under subsection (2) (b) of this section as if the amount assessed were a penalty imposed under section 203.
199.2 (1) If a person is jointly and severally liable to pay an amount referred to in section 179.3 (2) [collection of tax if sale or lease is facilitated by online marketplace facilitator] as an amount assessed or imposed against an online marketplace facilitator in respect of tax, the director may assess the person for the following:
(a) the amount assessed under the following sections against the online marketplace facilitator in respect of the tax, any related penalty and any interest on that amount and the penalty:
(i) section 198 [assessment of tax not remitted by collector];
(ii) section 199 (2) [assessment if amount not remitted];
(iii) section 199 (2.1) [assessment if excess deduction];
(iv) section 199 (3) [assessment of amount if excess deduction or refund];
(b) the amount imposed under section 203 [failure to levy tax] on the online marketplace facilitator in respect of the tax, any related penalty and any interest on that amount and the penalty.
(2) Section 200 applies to an assessment made under subsection (1) (a) of this section as if the assessment were made under section 198 or 199.
(3) If the director makes an assessment under subsection (1) (b) against a person and the person pays to the government an amount in respect of a penalty imposed under section 203 (1) or (1.1), then section 203 (2.1) and (2.2) applies to the person as if the person were the collector in relation to the tax.
(4) Section 203 (3) and (4) applies to an assessment made under subsection (1) (b) of this section as if the amount assessed were a penalty imposed under section 203.
200 (1) In making an assessment under section 198 or 199, the director must not include a period longer than 4 years before the date of the first notice of assessment.
(2) Despite subsection (1), the director may enter into a written agreement with a person in which the person waives subsection (1) and allows the director, in making an assessment under section 198 or 199, to include any period specified in the agreement.
(3) Despite subsections (1) and (2), in making an assessment under section 198 or 199, the director may include any period if the assessment relates to a contravention, of this Act or the regulations, involving wilful default or fraud.
"avoidance transaction" means a transaction
(a) that, but for this section, would result, directly or indirectly, in a tax benefit, or
(b) that is part of a series of transactions that, but for this section, would result, directly or indirectly, in a tax benefit,
but does not include a transaction that may reasonably be considered
(c) to have been undertaken or arranged primarily for bona fide purposes other than for one or more of the following:
(ii) to reduce, avoid or defer a tax, or another amount payable as or in respect of tax, under a law of Canada, British Columbia or another province;
(iii) to increase a refund of tax, or of another amount in respect of tax, under a law of Canada, British Columbia or another province, or
(d) to be a transaction that would not result, directly or indirectly, in
(i) a misuse of the provisions of this Act or the regulations, or
(ii) an abuse having regard to those provisions, other than this section, read as a whole;
"tax benefit" means
(a) a reduction, avoidance or deferral of tax, or of another amount, payable under this Act, or
(b) an increase in a refund of tax, or of another amount, under this Act;
"tax consequences", in relation to a person, means any amount of tax or another amount that is payable or refundable to the person under this Act or that is relevant for the purposes of calculating that amount;
"transaction" includes an arrangement or event.
(2) For the purposes of this section, a series of transactions is deemed to include any related transactions completed in contemplation of the series.
(3) If a transaction is an avoidance transaction, the director may determine the tax consequences to a person in a manner that is reasonable in the circumstances in order to deny a tax benefit that, but for this section, would result, directly or indirectly, from that transaction or from a series of transactions that includes that transaction.
(4) Without limiting subsection (3), in determining the tax consequences to a person in a manner that is reasonable in the circumstances in order to deny a tax benefit that, but for this section, would result, directly or indirectly, from an avoidance transaction, the director may do one or both of the following:
(a) recharacterize the nature of a payment or other amount;
(b) ignore the tax effects that would otherwise result from the application of other provisions of this Act or the regulations.
(5) The tax consequences to a person, after the application of this section, must be determined only through an assessment made under section 199 or a penalty imposed under section 203.
Division 3 — Penalties and Interest
202 If the director is satisfied that a person wilfully contravened section 169 [vendors and lessors must be registered], 170 [contractor must be registered], 171 [direct seller must be registered], 172 [person located in Canada but outside British Columbia must be registered], 172.1 [person located outside British Columbia must be registered], 172.3 [online marketplace facilitator must be registered] or 172.4 [person who provides online marketplace services must be registered], in addition to imposing any other penalty under this Act, the director may impose on the person a penalty equal to 25% of the amount
(a) levied and remitted or required to be levied and remitted under this Act by the person for the period that person was not registered under section 168 as required under this Act, or
(b) calculated by the director, in a manner and by a procedure the director considers adequate and expedient, as the amount of tax not remitted by the person as required under this Act.
203 (1) If it appears from an inspection, audit or examination or from other information available to the director that a collector has not levied tax as required under this Act, the director must
(a) calculate, in a manner and by a procedure the director considers adequate and expedient, the tax not levied, and
(b) impose on the collector a penalty equal to the amount calculated under paragraph (a).
(1.01) If the director must impose a penalty under subsection (1) and the director is satisfied that the person liable to pay the tax has paid the tax to the government or would be entitled to a refund of the tax if the person had paid the tax, the director, despite that subsection, may impose on the collector a penalty equal to the amount of the penalty that would otherwise be imposed under that subsection less the amount of tax paid to the government by that person or the amount of the refund of tax to which the person would be entitled.
(1.1) If it appears from an inspection, audit or examination or from other information available to the director that a collector has not levied tax under this Act in accordance with section 37 (3), (4), (5) or (6), 39 (4), 44 (2), 49 (9.1), (10), (11) or (12), 92 (2), 93 (4), 95 (3), 105 (3), 119 (2), 123.1, 130 (2.1) or (3), 134.3 (4) or 145 (1.1) or (2) when the collector had reason to believe that the person was not entitled to the claim alleged for the purposes of the applicable section, the director may
(a) calculate, in a manner and by a procedure the director considers adequate and expedient, the tax not levied, and
(b) impose on the collector a penalty equal to the amount calculated under paragraph (a) of this subsection.
(2) Money paid by a person to the government in respect of a penalty imposed under subsection (1) or (1.1) satisfies to the extent of the payment the original liability of the person who is required to pay the tax.
(2.01) If 2 or more persons are required to levy and collect tax in respect of a transaction,
(a) the director may impose the penalty required under subsection (1) on one of the persons, and
(b) the persons are jointly and severally liable for that penalty.
(2.1) A collector who has paid an amount imposed under subsection (1) or (1.1) may, in a court of competent jurisdiction, sue the person who was liable to pay the tax in order to recover an amount that may not exceed the difference between the amount imposed under subsection (1) or (1.1) and the amount of tax that the collector did not levy as required under this Act but that the person paid under this Act.
(2.2) The collector may retain any amount recovered in the legal proceeding referred to in subsection (2.1) as compensation for the amount paid under subsection (1) or (1.1).
(3) In imposing a penalty under subsection (1) or (1.1), the director must not impose a penalty in respect of
(a) a period that begins more than 4 years before the date of the first notice of assessment,
(b) a continuous period longer than 3 years, and
(c) more than one continuous period in the 4-year period referred to in paragraph (a).
(4) Despite subsection (3), the director may enter into a written agreement with a person in which the person waives subsection (3) and allows the director, in imposing a penalty under this section, to include any period specified in the agreement.
(5) Despite subsections (3) and (4), in imposing a penalty under this section, the director may include any period if the penalty is imposed as a result of a contravention, of this Act or the regulations, involving wilful default or fraud.
(6) Subsections (1), (1.01) and (2) to (5) apply in relation to tax that is to be levied and collected in accordance with section 182.2 (3) [collection of tax on liquor sold by auction] as if the person who must levy and collect that tax were a collector.
204 (1) In prescribed circumstances, the director must impose on a person who has declared incorrect information in a declaration required under section 37 (6) (b) or 49 (12) (b) in relation to an exemption claimed by another person under section 80.1 (1) or (2) or 80.5 (7) a penalty equal to the amount of tax that was not paid in reliance on the declaration.
(2) If the director has imposed a penalty under subsection (1), the director may not make an assessment under section 199 (1) [assessment if amount not paid or remitted or if excess deduction or refund] against the person who claimed the exemption in reliance on the declaration provided by the person on whom the penalty under subsection (1) of this section was imposed.
(3) In imposing a penalty under this section, the director must not include a period longer than 4 years before the date of the first notice of assessment.
(4) Despite subsection (3), the director may enter into a written agreement with a person in which the person waives subsection (3) and allows the director, in imposing a penalty under this section, to include any period specified in the agreement.
(5) Despite subsections (3) and (4), in imposing a penalty under this section, the director may include any period if the penalty is imposed as a result of a contravention, of this Act or the regulations, involving wilful default or fraud.
205 In addition to imposing any other penalty under this Act, the director may do any of the following:
(a) if the director is satisfied that a person who collected tax or an amount as if it were tax wilfully failed to remit the tax or amount collected as required under this Act, impose on the person a penalty equal to 100% of the amount not remitted;
(b) in any case other than a case referred to in paragraph (a), if the director is satisfied that a person, by wilfully, or in circumstances amounting to gross negligence, making a false or deceptive statement, by wilful default or default in circumstances amounting to gross negligence or by fraud,
(i) failed to levy, remit or pay any amount as required under this Act,
(ii) deducted an amount under section 159 (3) [refund or deduction for bad debts] that was in excess of the amount that the person was entitled to deduct under that section, or
(iii) received a refund of an amount under this Act, or deducted an amount under section 160 (2) [refund to collector], that was in excess of the refund amount that was due to the person,
impose on the person a penalty equal to 25% of, as applicable, the amount not levied, remitted or paid as required under this Act or the excess amount deducted or received;
(c) in any case other than a case referred to in paragraph (a) or (b),
(i) if the director is satisfied that a person failed to levy, remit or pay any amount as required under this Act, impose on the person a penalty equal to,
(A) in prescribed circumstances, a prescribed amount that is less than 10% of the amount not levied, remitted or paid as required under this Act, or
(B) in any other case, 10% of the amount not levied, remitted or paid as required under this Act, and
(ii) if the director is satisfied that a person
(A) deducted an amount under section 159 (3) [refund or deduction for bad debts] that was in excess of the amount that the person was entitled to deduct under that section, or
(B) received a refund of an amount under this Act, or deducted an amount under section 160 (2) [refund to collector], that was in excess of the refund amount that was due to the person,
impose on the person a penalty equal to 10% of the excess amount deducted or received.
205.1 (1) In this section, "return" does not include a return of information.
(2) If a person who is required to file a return under this Act fails to file the return within the time required under this Act, the director may impose on the person a penalty equal to the total of
(a) 5% of the amount, to which the return relates, not levied, remitted or paid as required under this Act, and
(b) the amount determined by the following formula:
| amount = 1% × A × B |
| where | ||
| A | = | the amount, to which the return relates, not levied, remitted or paid as required under this Act on the date the return was required to be filed; |
| B | = | the number of months, not exceeding 12 and rounded down to the nearest whole number, in the period beginning on the date the return was required to be filed and ending on the earlier of (i) the date the return was filed, and (ii) the date a penalty is imposed under this section on the person. |
205.2 (1) In this section, "return" does not include a return of information.
(2) If all of the following apply:
(a) a person fails to file a return required under this Act within the time required under this Act;
(b) the person subsequently fails to file a return under section 196 (1) (a) [demand for information] within the time required under that section;
(c) a penalty was imposed on the person under section 205.1 in respect of a failure to file any of the 3 preceding returns referred to in that section,
the director may impose on the person a penalty equal to the total of
(d) 10% of the amount, to which the return relates, not levied, remitted or paid as required under this Act on the date the return referred to in paragraph (a) was required to be filed, and
(e) the amount determined by the following formula:
| amount = 2% × A × B |
| where | ||
| A | = | the amount, to which the return relates, not levied, remitted or paid as required under this Act on the date the return referred to in paragraph (a) was required to be filed; |
| B | = | the number of months, not exceeding 20 and rounded down to the nearest whole number, in the period beginning on the date the return was required to be filed and ending on the earlier of (i) the date the return was filed, and (ii) the date a penalty is imposed under this section on the person. |
205.3 If a person who is required to file a return under this Act fails to include in the return any required information or fails to file with the return any other required information or records, the director may impose on the person a penalty of $100 for each failure.
205.4 (1) If a person fails to comply with a provision in subsection (2), the director may impose on the person, in respect of each failure, a penalty equal to the greater of
(b) $25 for each day during which the failure continues, to a maximum of $2 500.
(2) For the purposes of subsection (1), the following provisions are specified:
(a) section 194 (3) (a) and (b) [inspection and audit powers];
(b) section 195 [requirement to provide records];
205.5 If a person contravenes section 194 (7) (a) or (b) [inspection and audit powers], the director may impose on the person a penalty of $100 for each contravention.
205.6 (1) In this section, "culpable conduct" means any of the following:
(a) wilfully, or in circumstances amounting to gross negligence, making a false or deceptive statement;
(b) a wilful default or a default in circumstances amounting to gross negligence;
(2) If the director is satisfied that, due to the culpable conduct of a third party, another person
(a) failed to levy, remit or pay any amount to the government as required under this Act,
(b) deducted an amount under section 159 (3) [refund or deduction for bad debts] that was in excess of the amount that the person was entitled to deduct under that section, or
(c) received a refund of an amount under this Act, or deducted an amount under section 160 (2) [refund to collector], that was in excess of the refund amount that was due to the person,
the director may impose on the third party a penalty equal to the greater of
(e) 25% of, as applicable, the amount not levied, remitted or paid as required under this Act or the excess amount deducted or received.
(3) A third party who is an advisor to a person required to levy, remit or pay an amount under this Act does not engage in culpable conduct for the purposes of subsection (2)
(a) solely because the third-party advisor, in good faith, relies on information provided to the third-party advisor by or on behalf of the person under circumstances amounting to culpable conduct, or
(b) because of such reliance, the third-party advisor failed to verify, investigate or correct the information.
(4) In an appeal to the Supreme Court under section 212 of this Act, the onus is on the minister to establish the facts justifying the imposition of a penalty to which a person is liable under this section.
"non-assessed amount", in relation to a particular period, means an amount owing to the government under this Act for which a notice of assessment has not been given under this Act, including any interest on that amount that has accrued by the beginning of the period, but not including any penalty imposed under this Act and any interest on that penalty;
"refund amount", in relation to a person for a particular period, means an amount equal to the amount
(a) that the person is entitled to receive from the government as a refund under Part 7, including any interest on that amount that has accrued by the beginning of the period, and
(b) on which interest payable by the government would be accruing under the Financial Administration Act but for this section.
(2) Subject to this section, the director may assess at any time interest, calculated at the prescribed rate and in the prescribed manner, on an amount owing to the government under this Act until the date that a notice of assessment is given in relation to the amount owing.
(2.1) Interest may not be assessed under subsection (2) in relation to a fee imposed under section 196.2 [fee for attending at location outside British Columbia].
(3) The director must assess interest on a penalty imposed under section 203 as if the penalty were an amount owing to the government from the date the collector would have been required under this Act to remit the tax to the government if the collector had levied the tax as required under this Act.
(3.1) Subsection (3) applies in relation to a penalty imposed under section 203 on a person referred to in section 203 (6) as if the person were a collector.
(4) Subsection (5) applies in relation to an assessment of interest for a particular period if
(a) the director is satisfied, based on an inspection, audit or examination or on other information available to the director, that for the particular period
(i) a person owes a non-assessed amount to the government, and
(ii) the person is eligible to receive a refund amount from the government, and
(b) the non-assessed amount referred to in paragraph (a) (i) exceeds or equals the refund amount referred to in paragraph (a) (ii).
(5) In relation to an assessment of interest for a particular period to which this subsection applies, interest may be assessed under subsection (2) in relation to a non-assessed amount for the particular period by assessing interest on the amount equal to the non-assessed amount for the particular period less the refund amount for the particular period.
(6) If interest is assessed under subsection (2) for a particular period in accordance with subsection (5), despite the Financial Administration Act and the regulations under that Act, no interest is payable for the particular period by the government in relation to the person's refund amount.
(7) Subsection (8) applies in relation to a particular period if
(a) the director is satisfied, based on an inspection, audit or examination or on other information available to the director, that for the particular period
(i) a person owes a non-assessed amount to the government, and
(ii) the person is eligible to receive a refund amount from the government, and
(b) the refund amount referred to in paragraph (a) (ii) exceeds the non-assessed amount referred to in paragraph (a) (i).
(8) In relation to a particular period to which this subsection applies, interest may not be assessed under subsection (2) in relation to the non-assessed amount for the particular period.
(9) If interest may not be assessed under subsection (2) for a particular period in accordance with subsection (8), for the purposes of the regulations under section 27 (1) (c) of the Financial Administration Act, the amount owing by the government for the particular period is deemed to be reduced by the non-assessed amount for that particular period.
(10) For the purposes of this section, the director may determine, in a manner and by a procedure the director considers adequate and expedient, when an amount became owing to the government.
(11) For the purposes of this section and the regulations under section 27 (1) (c) of the Financial Administration Act, the director may determine, in a manner and by a procedure the director considers adequate and expedient, when an amount became owing by the government.
(12) For the purposes of this section, a period of time ends and a new period may begin if
(a) the non-assessed amount or refund amount changes, or
(b) a notice of assessment is given in relation to all or part of a non-assessed amount.
206.1 The director may assess at any time interest, calculated at the prescribed rate and in the prescribed manner, on an amount owing to the government under this Act from the date that a notice of assessment is given in relation to the amount owing.
Division 4 — Board Member's Liability
207 (1) Subject to this section, if a corporation has failed to levy, collect or remit taxes as required under this Act, a board member of the corporation is jointly and severally liable with that corporation to pay an amount equal to the taxes that the corporation failed to levy, collect or remit during the term of the board member, any related penalty and any interest on that amount and the penalty.
(2) A board member is not liable under subsection (1) unless one of the following has occurred:
(a) a certificate has been filed under section 218 [summary proceedings] with respect to the amount the corporation is liable to pay under this Act;
(b) the corporation has been dissolved or has commenced liquidation or dissolution proceedings in any jurisdiction;
(c) the corporation has, under the Bankruptcy and Insolvency Act (Canada),
(i) made an assignment in bankruptcy,
(ii) filed a notice of intention to make a proposal with the official receiver, or
(iii) made a proposal under Division 1 of Part III of that Act;
(d) a bankruptcy order has been made against the corporation under the Bankruptcy and Insolvency Act (Canada);
(e) the corporation has obtained a court order granting a stay of proceedings under section 11.02 of the Companies' Creditors Arrangement Act (Canada);
(f) the corporation has been or is subject in any jurisdiction to a proceeding of a similar nature to a proceeding referred to in paragraphs (c) to (e).
(3) A board member is not liable under subsection (1) if the board member exercised the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances to prevent the corporation's failure to levy, collect or remit taxes as required under this Act.
208 (1) Despite section 152 (2) [refund if no obligation to pay or collect] or any regulation that requires the payment of a refund of amounts collected to a corporation, if the director is satisfied that the total of the amount paid by one or more board members of the corporation who are jointly and severally liable with the corporation under section 207 (1) and the amount, if any, paid by the corporation exceeds the amount owed by the corporation under this Act for the period that the board members who made the payments were jointly and severally liable with the corporation, the director must pay a refund from the consolidated revenue fund in accordance with the following:
(a) if only one board member paid all or part of the amount for which one or more board members and the corporation were jointly and severally liable under section 207 (1), refund to the board member the amount of the excess, up to the amount paid by the board member;
(b) if 2 or more board members paid the amount or a part of the amount for which board members and the corporation were jointly and severally liable under section 207 (1), refund to the board members the amount of the excess divided proportionately between the board members, up to the amount paid by each board member;
(c) after making the payment under paragraph (a) or (b), refund to the corporation any remaining amount of the excess, up to the amount paid by the corporation.
(2) A refund under subsection (1) (b) must be based on the ratio of the amounts paid by the board members who are jointly and severally liable under section 207 (1) for the applicable period of the refund.
(3) A refund may be paid under subsection (1) only to a board member who or corporation that has applied for a refund.
209 (1) If the director has reason to believe that a person who was not a member of the board of directors of a corporation performed some or all of the functions of a member of the board of directors of the corporation, the director may request the person and the corporation to provide to the director the records and information required by the director, in a manner specified by the director, to confirm or rebut that belief.
(2) Subject to subsection (3), the director may determine that a person performed some or all of the functions of a member of the board of directors of a corporation if
(a) the person who or the corporation that has been requested to provide records or information to the director under subsection (1) fails or refuses to comply with the request within a period of time considered by the director to be reasonable in the circumstances, or
(b) the records or information provided to the director under this subsection confirms that the person performed some or all of the functions of a member of the board of directors of the corporation.
(3) The director must not determine under subsection (2) (b) that a person performed some or all of the functions of a member of the board of directors of the corporation if the determination is based solely on
(a) the person participating in the corporation's management under the direction or control of a shareholder, one or more members of the board of directors or a senior officer of the corporation,
(b) the person being a lawyer, accountant or other professional whose primary participation in the management of the corporation was the provision of professional services to the corporation,
(c) the corporation being bankrupt and the person being a trustee in bankruptcy who participates in the management of the corporation or exercises control over its property, rights and interests primarily for the purposes of the administration of the bankrupt's estate, or
(d) the person being a receiver, receiver manager or secured creditor who participates in the management of the corporation or exercises control over any of its property, rights and interests primarily for the purposes of enforcing a debt obligation of the corporation.
(4) Subject to subsection (5), if the director determines under subsection (2) that a person performed some or all of the functions of a member of the board of directors of a corporation, the person is deemed to be a board member of the corporation for the purposes of this Act for a term that equals the period the person performed those functions.
(5) Subsection (4) does not apply to sections 165 [claim for refund] and 233 [offence by corporation].
(6) Immediately after the director makes a determination under subsection (2), the director must give written notice of the determination to
210 (1) If the director decides that a board member is jointly and severally liable for an amount under section 207 (1), the director may assess the board member for the following:
(a) the amount assessed under section 198 [assessment of tax not remitted by collector] against the corporation as the tax the corporation was required to remit during the term of the board member, any related penalty and any interest on that amount and the penalty;
(b) the amount assessed under section 199 (2) [assessment if amount not paid or remitted or if excess deduction or refund] against the corporation for the corporation's failure to remit tax as required during the term of the board member, any related penalty and any interest on that amount and the penalty;
(c) the amount imposed under section 203 [failure to levy tax] on the corporation for the corporation's failure to levy tax as required during the term of the board member, any related penalty and any interest on that amount and the penalty.
(2) The director may not make an assessment under subsection (1) in respect of the liability of a board member under section 207 if
(a) the person is no longer a board member of that corporation, and
(b) it is more than 2 years after the last date that the person was a board member of that corporation.
Contents | Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15
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