Definitions

151   (1) In this Part:

"assessment" means an assessment, reassessment or additional assessment under this Act, the federal Act or the Excise Tax Act (Canada);

"commissioner" means the Commissioner of Income Tax;

"eligible individual" means

(a) an individual who enters into an eligible transaction, if the individual

(i) is a first-time new home buyer,

(ii) is a resident of British Columbia in the eligible taxation year, and

(iii) filed a return of income for the eligible taxation year, or

(b) a prescribed individual who enters into an eligible transaction,

but does not include

(c) an individual who has a spouse or a common-law partner at the time the eligible transaction is entered into, unless the individual's spouse or common-law partner is also a person referred to in subparagraphs (i), (ii) and (iii) of paragraph (a) or a person referred to in paragraph (b),

(d) an individual who, together with one or more other individuals, enters into an eligible transaction, unless all of the individuals are individuals referred to in paragraph (a) or (b),

(e) an individual who is confined to a prison or similar institution for a period of at least 90 days during which period the individual enters into the agreement of purchase and sale for an eligible transaction, or

(f) a prescribed individual;

"eligible taxation year", in relation to an individual, means

(a) the 2011 taxation year, if the individual is resident in British Columbia at the end of December 31, 2011,

(b) the 2012 taxation year,

(i) if the individual is not resident in British Columbia at the end of December 31, 2011 but is resident in British Columbia at the end of December 31, 2012,

(ii) if the individual is an individual referred to in paragraph (c) of the definition of "eligible individual" and the individual or the individual's spouse or common-law partner is not resident in British Columbia at the end of December 31, 2011 but both the individual and the individual's spouse or common-law partner are resident in British Columbia at the end of December 31, 2012, or

(iii) if the individual is an individual referred to in paragraph (d) of the definition of "eligible individual" and all of the individuals referred to in that paragraph are not resident in British Columbia at the end of December 31, 2011 but all are resident in British Columbia at the end of December 31, 2012, or

(c) a prescribed year;

"eligible transaction" means

(a) an eligible transaction referred to in subsection (2), or

(b) a prescribed transaction,

but does not include

(c) an eligible transaction referred to in subsection (2) that is excluded from this definition by regulation;

"family income" means, of an individual for a taxation year, the total of the following:

(a) the income of the individual for the taxation year;

(b) if the individual has a spouse or common-law partner at the time the eligible transaction is entered into, the income of the spouse or common-law partner for the taxation year;

"federal HST regulation" means the New Harmonized Value-added Tax System Regulations, No. 2 made under the Excise Tax Act (Canada);

"first-time new home buyer" means an individual who

(a) has not previously held a registered interest in land or otherwise owned an interest in a residential complex, whether in British Columbia or elsewhere, that constituted the individual's primary place of residence, and

(b) has not previously obtained a tax credit under this Part;

"individual" does not include a trust;

"qualifying individual" means an eligible individual who is the prescribed person or the person in a prescribed class in respect of prescribed property, within the meaning of section 256.21 (1) of the Excise Tax Act (Canada), for the purpose of the rebate under that section;

"return of income" means a return of income as defined in paragraph (a) of the definition of "return of income" in section 122.6 of the federal Act.

(2) The following are eligible transactions:

(a) a written agreement of purchase and sale for the purchase of a building and land that is situated in British Columbia, if the building and land is a residential complex that is a single unit residential complex or a residential condominium unit that is acquired for use as the primary place of residence of an individual and

(i) the individual

(A) is a prescribed person under section 41 (3) of the federal HST regulation who has made an application for a rebate in accordance with section 41 (4) of that regulation, or

(B) is a prescribed person under section 41 (3) of the federal HST regulation with respect to whom an application has been made in accordance with section 41 (6) of that regulation, and

(ii) the individual,

(A) on or after February 21, 2012 and before April 1, 2013, has entered into the agreement of purchase and sale with respect to the building and land, and

(B) subject to subsection (3) of this section, ownership or possession of the residential complex is transferred to the individual before April 1, 2013;

(b) a written agreement of purchase and sale for the purchase of a building or part of a building that is situated in British Columbia, if the building or part of a building is a residential complex that is a single unit residential complex or a residential condominium unit that is acquired for use as the primary place of residence of the individual and

(i) the individual

(A) is a prescribed person under section 43 (2) of the federal HST regulation who has made an application for a rebate in accordance with section 43 (3) of that regulation, or

(B) is a prescribed person under section 43 (2) of the federal HST regulation with respect to whom an application has been made in accordance with section 43 (4) of that regulation, and

(ii) the individual

(A) has, on or after February 21, 2012 and before April 1, 2013, entered into the agreement of purchase and sale with respect to the building or part of the building that forms part of the residential complex, and

(B) ownership and possession of the building or part of the building is transferred to the individual before April 1, 2013;

(c) an agreement for the acquisition of a share of the capital stock of a cooperative housing corporation, if an individual has acquired the share for the purpose of using a residential unit in a residential complex of the corporation that is situated in British Columbia as the primary place of residence of the individual and

(i) the individual is a prescribed person under section 45 (3) of the federal HST regulation who has made an application for a rebate in accordance with section 45 (4) of that regulation,

(ii) the individual has, on or after February 21, 2012 and before April 1, 2013, entered into the agreement to acquire the share with respect to that place of residence, and

(iii) ownership of the share transfers before April 1, 2013;

(d) a written agreement for the acquisition of land that is situated in British Columbia on which the construction or substantial renovation of a residential complex, other than a mobile home or floating home, is undertaken by an individual, or by a person the individual has engaged to construct or substantially renovate a residential complex, for use as the primary place of residence of the individual, if

(i) the individual is a prescribed person under section 46 (3) of the federal HST regulation who has made an application for a rebate in accordance with section 46 (6) of that regulation,

(ii) the individual has, on or after February 21, 2012 and before April 1, 2013, entered into the agreement for the acquisition of land, and

(iii) the residential complex is substantially completed or occupied as the primary place of residence before April 1, 2013;

(e) a written agreement of purchase and sale for the acquisition of a mobile home or floating home that is, or forms part of, a residential complex that an individual has acquired for use in British Columbia as the primary place of residence of the individual if

(i) the individual has entered into the agreement of purchase and sale with respect to the mobile home or floating home, and an agreement for the acquisition of the land, if any, to which the mobile home or floating home is attached, on or after February 21, 2012 and before April 1, 2013, and

(ii) the individual is a prescribed person under section 41 (3) of the federal HST regulation

(A) who has made an application for a rebate in accordance with section 41 (4) of that regulation, or with respect to whom an application has been made in accordance with section 41 (6) of that regulation, and

(B) ownership or possession of the mobile home or floating home is transferred to the individual before April 1, 2013, or

(iii) the individual is a prescribed person under section 43 (2) of the federal HST regulation

(A) who has made an application for a rebate in accordance with section 43 (3) of that regulation, or with respect to whom an application has been made in accordance with section 43 (4) of that regulation, and

(B) ownership and possession of the mobile home or floating home is transferred to the individual before April 1, 2013, or

(iv) the individual is a prescribed person under section 46 (3) of the federal HST regulation

(A) who has made an application for a rebate in accordance with subsection 46 (6) of that regulation, and

(B) the mobile home or floating home is substantially completed or occupied as the primary place of residence before April 1, 2013.

(3) If the residential complex referred to in subsection (2) (a) is a residential condominium unit and possession of that unit is transferred to an individual before the condominium complex in which the unit is situated is registered as a condominium, in order to qualify as an eligible transaction under that subsection,

(a) the condominium complex must be registered before January 31, 2013, or

(b) ownership of the unit must be transferred to the individual before April 1, 2013.

(4) Subject to subsection (5), for the purposes of this Part, the date on which an agreement of purchase and sale, an agreement for the acquisition of a share or an agreement for the acquisition of land is entered into is deemed to be the date of the signature of the last party to the agreement.

(5) If an agreement of purchase and sale, an agreement for the acquisition of a share or an agreement for the acquisition of land is amended or replaced by one or more new agreements, the date on which the agreement is entered into is deemed to be the date of the signature of the last party to the original agreement before its amendment or replacement.

(6) For the purpose of this Part, sections 122.61 (3) (a), 122.61 (3.1) (a), and 122.7 (12) of the federal Act apply.

(7) For the purposes of this section, a single unit residential complex includes a single unit residential complex as defined in section 254 (1) of the Excise Tax Act (Canada) as it read on February 21, 2012.

(8) For the purposes of this section, unless they are at variance with the definitions in this section, the definitions in Part IX of the Excise Tax Act (Canada) as it read on February 21, 2012, and the definitions and interpretations made by the regulations under that Act as they read on that date, apply.

Tax credit for first-time new home buyers

152   A qualifying individual may claim a tax credit for an eligible taxation year equal to the excess, if any, of

Deemed payment of tax

153   An individual who has claimed and is eligible for a tax credit under this Part for a taxation year is deemed to have paid, at the time referred to in section 156.1 (4) of the federal Act, as that section relates to the taxation year, the amount of the credit on account of the individual's tax payable under this Act.

Application for tax credit

154   (1) An individual may file with the commissioner an application for a tax credit under this Part for an eligible taxation year.

(2) The application must be in the form and contain the information required by the commissioner.

(3) In addition to the application, the individual must file with the application, or within a later period approved by the commissioner, any other information or records required by the commissioner.

(4) An application with respect to an eligible transaction must be filed within the prescribed time for filing an application for the related new housing rebate under section 256.21 (2) of the Excise Tax Act (Canada).

(5) Despite subsection (4), an application under this section must be filed on or before March 31, 2015.

Determination of tax credit

155   (1) The commissioner must examine an application and other information or records filed under section 154 [application for tax credit] and determine the amount of any tax credit to which the individual is entitled under this Part.

(2) If the commissioner determines the amount of any tax credit for a taxation year, the commissioner must send to the individual a notice of determination that specifies the amount of the tax credit for the taxation year.

(3) The commissioner

(a) is not bound by an application or other information or records supplied by or on behalf of an individual, and

(b) may determine the amount of a tax credit for a taxation year despite the supply of the application or other information or records by or on behalf of the individual.

Determination period

156   The commissioner may determine the amount of any tax credit or penalty in respect of a taxation year within the following time periods:

(a) the later of the following:

(i) three years after the date the notice of determination is sent under section 155 [determination of tax credit];

(ii) one year after the earlier of the following if an individual is issued a notice of assessment:

(A) the day on which the commissioner receives notification from an individual under section 158 [notice to commissioner of subsequent assessment];

(B) the day on which the commissioner receives notification from the taxing authority under this Act that the individual has been issued a notice of assessment;

(iii) one year after the day on which the commissioner receives notification from the taxing authority under this Act that the spouse or common-law partner of an individual has been issued a notice of assessment that changes an amount relevant to the calculation of the individual's tax credit under this Part;

(b) at any time,

(i) if the individual has made any misrepresentation or committed any fraud in filing the individual's application or supplying information under this Part,

(ii) to carry out the effect of a waiver or cancellation under section 163 [waiver or cancellation of penalty], or

(iii) to carry out the effect of a decision of the Provincial minister under section 164 [appeal to minister].

Determination valid and binding

157   Subject to being varied on appeal or by redetermination, a determination under this Part is valid and binding despite any error, defect or omission in the determination or in procedure.

Notice to commissioner of subsequent assessment

158   If an individual is issued a notice of assessment that changes an amount relevant to the calculation of the individual's tax credit under this Part, the individual, within 90 days after the notice was issued or within a later period approved by the commissioner, must

(a) file with the commissioner a notice in the form and containing the information required by the commissioner, and

(b) include with the notice any other information or records required by the commissioner.

Payment of tax refund

159   (1) If an overpayment is created as the result of the tax credit, the Provincial minister must pay, out of the consolidated revenue fund, the tax refund payable to an individual under this Part in the amount specified in the notice of determination sent to the individual.

(2) Despite the Financial Administration Act and the Interest on Overdue Accounts Payable Regulation, B.C. Reg. 215/83, no interest is payable with respect to the tax refund referred to in subsection (1).

Tax refund cannot be attached or assigned

160   A tax refund referred to in section 159 (1) [payment of tax refund]

(a) cannot be charged or given as security,

(b) cannot be assigned except to a prescribed person,

(c) cannot be garnished or attached, and

(d) is exempt from execution or seizure.

Imposition of administrative penalty

161   (1) The commissioner may determine and impose a penalty on an individual who is liable to a penalty under section 162 [administrative penalties].

(2) If the commissioner imposes a penalty on an individual, the commissioner must send to the individual a notice of determination that specifies the amount of the penalty imposed.

Administrative penalties

162   (1) In this section, "excess refund" means the amount by which the tax refund under this Part that would have been claimed by the individual, if the tax refund had been calculated on the basis of the information provided in the application, return, report, notice or other record, exceeds the individual's tax refund for the taxation year.

(2) An individual who knowingly or under circumstances amounting to gross negligence in the carrying out of any duty or obligation imposed under this Part, makes, or participates in, assents to or acquiesces in the making of, a statement or omission in an application, return, report, notice or other record supplied to the commissioner that results in an excess refund is liable to a penalty equal to the greater of

(a) $100, and

(b) 100% of the excess refund.

(3) An individual who fails to file with the commissioner a notice in accordance with section 158 [notice to commissioner of subsequent assessment], is liable, in respect of each failure, to a penalty equal to the greater of

(a) $100, and

(b) $25 for each day after which the notice was required to be filed under that section, to a maximum of $2 500.

Waiver or cancellation of penalty

163   The commissioner may at any time waive or cancel all or part of any penalty otherwise payable by an individual under this Part.

Appeal to minister

164   (1) An individual may appeal the following to the Provincial minister:

(a) a determination of a tax credit under section 155 [determination of tax credit];

(b) an imposition of a penalty under section 161 [imposition of administrative penalty].

(2) An appeal under subsection (1)

(a) must be made within 90 days after the date on the notice of determination in respect of the matter being appealed, and

(b) must be made by serving a notice of appeal on the Provincial minister by mailing the notice to that minister.

(3) The appellant must set out in the notice of appeal a statement of all material facts and the reasons in support of the appeal.

(4) On receipt of all relevant information from the commissioner and the notice of appeal, the Provincial minister must

(a) confirm, reverse or vary the commissioner's decision or determination, and

(b) notify the appellant in writing of the minister's decision.

Liability for recoverable amount

165   (1) An individual is liable to pay to the government the following:

(a) the amount by which the tax refund under this Part that was paid to or on behalf of the individual or set-off under the Financial Administration Act exceeds the tax refund that the individual is entitled to receive;

(b) the amount of any penalties imposed on the individual under section 161 [imposition of administrative penalty].

(2) Despite the Financial Administration Act and the Interest on Overdue Accounts Receivable Regulation, B.C. Reg. 214/83, no interest is payable with respect to the amount referred to in subsection (1).

Collection of recoverable amount

166   Part 5 of the International Business Activity Act applies for the purpose of collecting an amount referred to in section 165 (1) [liability for recoverable amount].

Powers of audit

167   Without limiting any provision of this Act or the federal Act, for the purpose of determining an amount under this Part, the commissioner has powers equivalent to the federal minister under sections 231 to 231.5, 231.7 and 233 (1) of the federal Act, and for that purpose those sections apply.

Application of other provisions

168   (1) A tax credit under this Part is not to be considered in applying any of the following provisions:

(a) section 31 [instalment payments: farmers and fishers];

(b) section 32 [instalment payments: other individuals];

(c) section 34 [returns, payments and interest];

(d) section 35 [refund for tax credits];

(e) section 36 [amount on which instalment calculated];

(f) section 37 [failure to file return or corporate return and failure to provide information];

(g) section 39 [penalty for late or deficient instalments];

(h) section 39.1 [misrepresentation of tax matter by third party];

(i) section 40 [refunds].

(2) The following provisions do not apply for the purposes of this Part, except to the extent provided in this Part:

(a) section 1 (8.1) [interpretation];

(b) section 29 [returns of income and assessments of tax];

(c) section 30 [reassessment and amended return];

(d) section 38 [failure to report income, false statement or omission and burden of proof on appeal];

(e) section 41 [objections to assessments and extension of time];

(f) section 42 [appeal by taxpayer];

(g) section 43 [reply];

(h) section 44 [procedure];

(i) section 45 [irregularities, extension of time and private hearings];

(j) section 46 [court practice];

(k) section 47 [administration, interest, garnishment and proceedings to collect];

(l) section 49 [debts to Her Majesty];

(m) section 50 [certificates];

(n) section 51 [warrant];

(o) section 52 [acquisition of debtor's property];

(p) section 53 [payment of money seized from tax debtor];

(q) section 54 [seizure of goods];

(r) section 55 [taxpayer leaving Canada or defaulting];

(s) section 59 [inspections, privilege, information returns and corporate execution];

(t) section 61 [offence and penalty];

(u) section 62 [further offences];

(v) section 70 [payments on account].

Administration

169   (1) Despite any collection agreement, the Provincial minister must administer and enforce this Part.

(2) Despite section 69 (3) [collection agreement], the federal minister is not authorized to use, perform or exercise any of the powers, duties or discretions of the Provincial minister under this Part.

Delegation of powers

170   (1) The commissioner may authorize any other officer of the ministry to perform and exercise duties imposed and powers conferred on the commissioner by this Part as may in the commissioner's opinion be conveniently performed or exercised by that officer.

(2) The performance or exercise by the officer authorized under subsection (1) of the duties or powers referred to in that subsection is of the same effect as if they were performed or exercised by the commissioner.

Power to make regulations

171   (1) Without limiting section 48 (1) and (2) [power to make regulations], the Lieutenant Governor in Council may make regulations as follows:

(a) prescribing individuals or classes of individuals for the purposes of paragraphs (b) and (f) of the definition of "eligible individual" in section 151 (1) [definitions];

(b) prescribing taxation years for the purpose of the definition of "eligible taxation year" in section 151 (1);

(c) prescribing transactions or classes of transactions for the purposes of paragraphs (b) and (c) of the definition of "eligible transaction" in section 151 (1);

(d) prescribing persons or classes of persons for the purpose of section 160 (b) [tax refund cannot be attached or assigned];

(e) defining a word or expression used in this Part.

(2) A regulation made under this Part may be made retroactive to February 21, 2012 or a later date, and if made retroactive is deemed to have come into force on the specified date.