Underused Housing Tax Act (S.C. 2022, c. 5, s. 10)

Marginal note:Reference of common questions to Tax Court of Canada

• 46 (1) If the Minister is of the opinion that a question arising out of one and the same transaction or occurrence or series of transactions or occurrences is common to assessments or proposed assessments in respect of two or more persons, the Minister may apply to the Tax Court of Canada for a determination of the question.

• Marginal note:Contents of application

  (2) An application must set out

  • (a) the question in respect of which the Minister requests a determination;

  • (b) the names of the persons that the Minister seeks to have bound by the determination; and

  • (c) the facts and reasons on which the Minister relies and on which the Minister based or intends to base assessments of each person named in the application.

• Marginal note:Service

  (3) A copy of the application must be served by the Minister on each of the persons named in it and on any other person that, in the opinion of the Tax Court of Canada, is likely to be affected by the determination of the question.

• Marginal note:Determination by Tax Court of Canada

  (4) If the Tax Court of Canada is satisfied that a determination of a question set out in an application will affect assessments or proposed assessments in respect of two or more persons that have been served with a copy of the application and that are named in an order of the Tax Court of Canada under this subsection, it may

  • (a) if none of the persons named in the order has appealed from such an assessment, proceed to determine the question in any manner that it considers appropriate; or

  • (b) if one or more of the persons named in the order has or have appealed, make any order that it considers appropriate joining a party or parties to that appeal or those appeals and proceed to determine the question.

• Marginal note:Determination final and conclusive

  (5) Subject to subsection (6), if a question set out in an application is determined by the Tax Court of Canada, the determination is final and conclusive for the purposes of any assessments of persons named by the Court under subsection (4).

• Marginal note:Appeal

  (6) If a question set out in an application is determined by the Tax Court of Canada, the Minister or any of the persons that have been served with a copy of the application and that are named in an order of the Court under subsection (4) may, in accordance with the provisions of this Act, the Tax Court of Canada Act or the Federal Courts Act, as they relate to appeals from or applications for judicial review of decisions of the Tax Court of Canada, appeal from the determination.

• Marginal note:Parties to appeal

  (7) The parties that are bound by a determination are parties to any appeal from the determination.

• Marginal note:Time during consideration not counted

  (8) For the purpose of making an assessment of a person, filing a notice of objection to an assessment or instituting an appeal from an assessment, the periods described in subsection (9) must not be counted in the computation of

  • (a) the four-year period referred to in subsection 36(1);

  • (b) the period within which a notice of objection to an assessment may be filed under section 37; or

  • (c) the period within which an appeal may be instituted under section 40.

• Marginal note:Excluded periods

  (9) The period that is not to be counted in the computation of the periods described in paragraphs (8)(a) to (c) is the time between the day on which an application that is made under this section is served on a person under subsection (3) and

  • (a) in the case of a person named in an order of the Tax Court of Canada under subsection (4), the day on which the determination becomes final and conclusive and not subject to any appeal; and

  • (b) in the case of any other person, the day on which the person is served with a notice that the person has not been named in an order of the Tax Court of Canada under subsection (4).

DIVISION 8Penalties

Marginal note:Failure to file

• 47 (1) Every person that fails to file a return as and when required under Part 4 is liable to a penalty equal to the greater of

  • (a) $5,000 if the person is an individual or $10,000 if the person is not an individual, and

  • (b) the amount that is the total of

    • (i) 5% of the tax calculated under section 6 payable by the person in respect of the residential property for the calendar year, and

    • (ii) the product obtained when 3% of the tax calculated under section 6 payable by the person in respect of the residential property for the calendar year is multiplied by the number of complete months from the date on which the return was required to be filed.

• Marginal note:Failure to file

  (2) If a person fails to file a return in respect of a residential property for a particular calendar year by December 31 of the following calendar year, for the purpose of calculating the total referred to paragraph (1)(b), the tax calculated under section 6 in respect of the residential property for the particular calendar year is to be determined without reference to paragraphs 6(7)(c) to (f) and subsections 6(8) and (9).

Marginal note:Waiving or cancelling penalties

• 48 (1) The Minister may, on or before the day that is 10 calendar years after the end of a calendar year of a person, or on application by the person on or before that day, waive or cancel all or any portion of any penalty under this Act payable by the person in respect of the calendar year.

• Marginal note:Interest if amount waived or cancelled

  (2) If a person has paid an amount of penalty and the Minister waives or cancels that amount under subsection (1), the Minister must pay interest on the amount paid by the person beginning on the day that is 30 days after the day on which the Minister received a request in a manner satisfactory to the Minister to apply that subsection and ending on the day on which the amount is paid to the person.

Marginal note:General penalty

49 Every person that fails to comply with any provision of this Act for which no other penalty is specified is liable to a penalty of $250.

Marginal note:Failure to file on demand

50 Every person that fails to file a return as and when required under a demand issued under section 10 is liable to a penalty of $500.

Marginal note:Failure to provide information

51 Every person that fails to provide any information or record as and when required under this Act is liable to a penalty of $250 for every failure unless, in the case of information required in respect of another person, a reasonable effort was made by the person to obtain the information.

Marginal note:False statements or omissions

52 Every person that knowingly, or under circumstances amounting to gross negligence, makes or participates in, assents to or acquiesces in the making of a false statement or omission in a return, application, form, certificate, statement, invoice or answer (each of which is in this section referred to as a “return”) is liable to a penalty of the greater of $500 and 25% of the total of

• (a) if the false statement or omission is relevant to the determination of an amount payable under this Act by the person, the amount, if any, by which

  • (i) the amount payable

  exceeds

  • (ii) the amount that would be payable by the person if the amount payable were determined on the basis of the information provided in the return, and

• (b) if the false statement or omission is relevant to the determination of an amount that may be obtained under this Act, the amount, if any, by which

  • (i) the amount that would be the amount payable to the person if the amount were determined on the basis of the information provided in the return

  exceeds

  • (ii) the amount payable to the person.

DIVISION 9Offences and Punishment

Marginal note:Offence for failure to file return or to comply with demand or order

• 53 (1) Every person that fails to file or make a return as and when required under this Act or that fails to comply with an obligation under subsection 29(6) or (9) or section 31, or an order made under section 58, is guilty of an offence and, in addition to any penalty otherwise provided, is liable on summary conviction to a fine of not less than $2,000 and not more than $40,000 or to imprisonment for a term not exceeding 12 months, or to both.

• Marginal note:Saving

  (2) A person that is convicted of an offence under subsection (1) for a failure to comply with a provision of this Act is not liable to pay a penalty under this Act for the same failure, unless a notice of assessment for the penalty was issued before the information or complaint giving rise to the conviction was laid or made.

Marginal note:Offences for false or deceptive statement

• 54 (1) Every person commits an offence that

  • (a) makes, or participates in, assents to or acquiesces in the making of, a false or deceptive statement in a return, application, certificate, statement, document, record or answer filed or made as required under this Act;

  • (b) for the purposes of evading payment of any amount payable under this Act, or obtaining the payment of an amount under this Act to which the person is not entitled,

    • (i) destroys, alters, mutilates, conceals or otherwise disposes of any records of a person, or

    • (ii) makes, or assents to or acquiesces in the making of, a false or deceptive entry, or omits, or assents to or acquiesces in the omission, to enter a material particular in the records of a person;

  • (c) intentionally, in any manner, evades or attempts to evade compliance with this Act or payment of an amount payable under this Act;

  • (d) intentionally, in any manner, obtains or attempts to obtain the payment of an amount under this Act to which the person is not entitled; or

  • (e) conspires with any person to commit an offence described in any of paragraphs (a) to (d).

• Marginal note:Punishment

  (2) Every person that commits an offence under subsection (1) is guilty of an offence punishable on summary conviction and, in addition to any penalty otherwise provided, is liable to

  • (a) a fine of not less than 50%, and not more than 200%, of the amount payable that was sought to be evaded, or of the payment sought, or, if the amount that was sought to be evaded cannot be ascertained, a fine of not less than $2,000 and not more than $40,000;

  • (b) imprisonment for a term not exceeding two years; or

  • (c) both a fine referred to in paragraph (a) and imprisonment for a term not exceeding two years.

• Marginal note:Prosecution on indictment

  (3) Every person that is charged with an offence described in subsection (1) may, at the election of the Attorney General of Canada, be prosecuted on indictment and, if convicted, is, in addition to any penalty otherwise provided, liable to

  • (a) a fine of not less than 100%, and not more than 200%, of the amount payable that was sought to be evaded, or of the payment sought, or, if the amount that was sought to be evaded cannot be ascertained, a fine of not less than $5,000 and not more than $100,000;

  • (b) imprisonment for a term not exceeding five years; or

  • (c) both a fine referred to in paragraph (a) and imprisonment for a term not exceeding five years.

• Marginal note:Penalty on conviction

  (4) A person that is convicted of an offence under this section is not liable to pay a penalty imposed under this Act for the same evasion or attempt unless a notice of assessment for that penalty was issued before the information or complaint giving rise to the conviction was laid or made.

• Marginal note:Stay of appeal

  (5) If, in any appeal under this Act, substantially the same facts are at issue as those that are at issue in a prosecution under this section, the Minister may file a stay of proceedings with the Tax Court of Canada and, upon that filing, the proceedings before the Tax Court of Canada are stayed pending a final determination of the outcome of the prosecution.

Marginal note:Definition of confidential information

• 55 (1) In this section, confidential information has the same meaning as in subsection 32(1).

• Marginal note:Offence — confidential information

  (2) A person is guilty of an offence and liable on summary conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months, or to both, if that person

  • (a) contravenes subsection 32(2); or

  • (b) knowingly contravenes an order made under subsection 32(12).

• Marginal note:Offence — confidential information

  (3) Every person to whom confidential information has been provided for a particular purpose under subsection 32(6) and that for any other purpose knowingly uses, provides to any person, allows the provision to any person of, or allows any person access to, that information is guilty of an offence and liable on summary conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months, or to both.

Marginal note:Failure to pay tax

56 Every person that intentionally fails to pay an amount of tax as and when required under this Act is guilty of an offence punishable on summary conviction and liable, in addition to any penalty or interest otherwise provided, to

• (a) a fine not exceeding the aggregate of $1,000 and an amount equal to 20% of the amount of tax that should have been paid;

• (b) imprisonment for a term not exceeding six months; or

• (c) both a fine referred to in paragraph (a) and imprisonment for a term not exceeding six months.

Marginal note:General offence

57 Every person that fails to comply with any provision of this Act for which no other offence is specified in this Act is guilty of an offence punishable on summary conviction and liable to a fine of not more than $100,000 or to imprisonment for a term of not more than 12 months, or to both.

Marginal note:Compliance orders

58 If a person is convicted by a court of an offence for a failure to comply with a provision of this Act, the court may make any order that it deems appropriate to enforce compliance with the provision.

Marginal note:Officers of corporations, etc.

59 If a person other than an individual commits an offence under this Act, every officer, director or representative of the person that directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and liable on conviction to the punishment provided for the offence, whether or not the person has been prosecuted or convicted.

Marginal note:No power to decrease punishment

60 Despite the Criminal Code or any other law, the court has, in any prosecution or proceeding under this Act, neither the power to impose less than the minimum fine fixed under this Act nor the power to suspend sentence.

Marginal note:Information or complaint

• 61 (1) An information or complaint under this Act may be laid or made by any officer of the Canada Revenue Agency, by a member of the Royal Canadian Mounted Police or by any person authorized to do so by the Minister and, if an information or complaint purports to have been laid or made under this Act, it is deemed to have been laid or made by a person so authorized by the Minister and must not be called into question for lack of authority of the informant or complainant, except by the Minister or a person acting for the Minister or for Her Majesty in right of Canada.

• Marginal note:Two or more offences

  (2) An information or complaint in respect of an offence under this Act may be for one or more offences, and no information, complaint, warrant, conviction or other proceeding in a prosecution under this Act is objectionable or insufficient by reason of the fact that it relates to two or more offences.

• Marginal note:Territorial jurisdiction

  (3) An information or complaint in respect of an offence under this Act may be heard, tried or determined by any court having territorial jurisdiction where the accused is resident, carrying on a commercial activity, found, apprehended or in custody, despite that the matter of the information or complaint did not arise within that territorial jurisdiction.

• Marginal note:Limitation of prosecutions

  (4) No proceeding by way of summary conviction in respect of an offence under this Act may be instituted more than five years after the day on which the subject matter of the proceedings arose, unless the prosecutor and the defendant agree that they may be instituted after the five years.