BILL 17
An Act to Amend the Metallic
Minerals Tax Act
Her Majesty, by and with the advice and
consent of the Legislative Assembly of New Brunswick, enacts as follows:
1 Subsection
1(1) of the Metallic Minerals Tax Act, chapter M-11.01 of the Revised
Statutes, 1973, is amended
(a) by repealing the definition “mining tax”;
(b) by adding the following definitions in alphabetical order:
“Commissioner” means the Commissioner
as defined in the Revenue Administration
Act; (Commissaire)
“Court of Appeal” means The
Court of Appeal of New Brunswick, and includes any judge of that court; (Cour
d’appel)
“Court of Queen’s Bench”
means The Court of Queen’s Bench of New Brunswick, and includes
any judge of that court; (Cour du Banc de la Reine)
“tax” means the tax imposed
under this Act; (impôt)
“taxpayer” means a person who
is required by this Act to pay a tax; (contribuable)
2 Section
3 of the Act is amended
(a) in paragraph (2)(a) by striking out “an amount equal
each time to one-twelfth of the tax estimated by him to be payable
for the taxation year in respect of which the tax is payable”
and substituting “an
amount equal each time to 1/12 of the tax estimated by him or her
to be payable for the taxation year in respect of which the tax is
payable, and each payment shall be accompanied by a remittance form
provided by the Minister”;
(b) by adding after subsection (5) the following:
Interest respecting examinations
3(6)
Despite subsections (3) and (4), if an examination is carried
out under this Act and circumstances in accordance with the regulations
exist, an amount due to the Crown under this Act by a taxpayer bears
interest at the rate prescribed by regulation for the period of time
prescribed by regulation.
Interest respecting examinations
3(7)
If the amount and interest referred to in subsection (6) are
not paid on or before the time prescribed by regulation, the sum of
the amount and the interest bears interest after that time at the
rate prescribed by regulation for the purposes of subsections (3)
and (4).
Interest continues
to accrue
3(8) Subsection (3), (4), (6) or (7)
applies despite the fact that a certificate has been issued under
section 26 and entered and
recorded as a judgment of the Court of Queen’s Bench.
3 Subsection
6(1) of the Act is amended
(a) by repealing paragraph (a) and substituting the following:
(a) within 10 days after the commencement of
mining operations, give the mine assessor notice of such on a form
provided by the Minister;
(b) by repealing paragraph (c) and substituting the following:
(c) immediately give the mine assessor notice
on a form provided by the Minister of the following:
(i) every change in the name or address,
or both, of the manager or of the person mentioned in subparagraph
(b)(iii);
(ii) every change in the ownership or
operation of the mine;
(iii) each discontinuance of mining operations;
and
(iv) each recommencement of mining operations
after discontinuance.
4 Subsection
8(1) of the Act is amended in the portion preceding paragraph (a)
by striking out “detailed statement” and substituting “detailed statement on a form provided
by the Minister”.
5 The
Act is amended by adding after section 10 the following:
Examinations and inspections
10.1(1)
The mine assessor may, at any reasonable time, enter upon any premises
where any business is carried on, operated, conducted or managed,
any property is kept or any other thing is done in connection with
the output of a mine, or where records are kept with respect to the
output of a mine
(a) for the purpose of conducting an examination
of the books of account, records and documents of a taxpayer, or
(b) for the purpose of inspecting the books
of account, records, documents, record keeping devices and premises
of the taxpayer in order to ascertain the amount of the tax payable.
10.1(2)
The mine assessor may, on entering the premises,
(a) examine or inspect any record keeping device,
book of account, record, account, invoice, voucher, letter or other
document that is related or may relate to the amount of tax that may
be payable,
(b) inspect any goods, property, process or
matter that may, in the opinion of the mine assessor, assist him or
her
(i) in ascertaining any information that
is or should be in the documents referred in to paragraph (a),
(ii) in determining the accuracy of any
information contained in the documents referred in to paragraph (a),
and
(iii) in determining any matter that relates
to the amount of tax that may be payable,
(c) descend all pits and shafts and use all
tackle, machinery, appliances and things as the mine assessor considers
necessary or appropriate in the circumstances,
(d) enter and inspect all buildings and structures
used in connection with the output of a mine,
(e) take such samples or specimens as the mine
assessor may require for the purpose of determining the value of the
minerals or mineral products being taken from the mine,
(f) make such inquiries as the mine assessor
considers necessary for the purposes of this Act, and
(g) require the owner or manager of the property
or business and any other person on the premises to give the mine
assessor all reasonable assistance with the examination or inspection
and to answer all questions relating to the examination or inspection
either orally or in writing, on oath or by solemn affirmation, and
for that purpose require the owner or manager to attend at the premises
with the mine assessor.
10.1(3)
The taxpayer and each of his or her officers, employees and agents
shall, at that time, answer all questions put to him or her relating
to any of the matters concerning which authority to enter is given
in this section, and shall produce for examination or inspection such
books of account, records, documents and record keeping devices as
the mine assessor requires.
10.1(4)
The mine assessor may take copies and extracts of the books of account,
records and documents kept or used for or in connection with the work
and business related to the output of a mine.
10.1(5)
The mine assessor may, during an examination or inspection under this
section, seize any book of account, record, document or record keeping
device that the mine assessor believes on reasonable grounds may provide
evidence of the commission of an offence.
Warrants and protection
10.2(1)
Before or after attempting to effect entry under section 10.1, the mine assessor may apply for
an entry warrant in accordance with the Entry
Warrants Act.
10.2(2)
The mine assessor may, for the purposes of section 10.1, be accompanied by a police officer,
as defined in the Police Act,
or a member of the Royal Canadian Mounted Police.
6 Subsection
11(1) of the Act is repealed.
7 The
Act is amended by adding after section 12 the following:
Liability and assessment
12.1(1)
A taxpayer is liable for a tax until it has been paid.
12.1(2)
The mine assessor may from time to time and at such intervals as he
or she may consider reasonable, assess and reassess any tax payable
under this Act by any taxpayer, and may vary or vacate any assessment
or reassessment, and the tax so determined shall, for the purposes
of sections 16.1 and 23, become due and payable by the taxpayer.
12.1(3)
The mine assessor may estimate the unpaid tax and such estimated amount
shall be deemed to be the amount of tax due and payable by the taxpayer
if the taxpayer fails to
(a) pay a tax, or
(b) substantiate the taxpayer’s payment
by his or her records.
12.1(4)
The mine assessor may carry out or cause to be carried out an examination
of the books of account, records and documents of a taxpayer.
12.1(5)
In the discretion of the mine assessor, any or all books of account,
records and documents of a taxpayer may, for the purposes of subsection (4),
be examined for such period or periods of time in an examination period
as the mine assessor approves, whether such approval is given before
or after the examination, and the results of the examination may be
applied over the examination period or any part of the examination
period.
12.1(6) A taxpayer shall make his or her books
of account, records and documents available to the mine assessor for
the purposes of allowing an examination to be carried out under subsection (4).
12.1(7)
In the discretion of the mine assessor, a tax may be determined under
subsection (2) and an amount of tax may be estimated under subsection (3)
by an examination under subsection (4).
12.1(8)
Liability for the tax payable, and the interest and penalties payable,
if any, shall not be affected by an incorrect or incomplete assessment
or by the fact that no assessment has been made.
8 Subsection
13(1) of the Act is repealed and the following is substituted:
Notice of assessment
13(1)
After completion of the examination of a taxpayer’s return under
section 12 and a taxpayer’s
books of account, records and documents under section 12.1, the mine assessor shall, by assessment,
verify or alter the amount of the tax as estimated by the taxpayer
in his or her return, and shall serve the taxpayer with a notice of
assessment in the form provided by the Minister setting out the amount
determined under subsection 12.1(2)
or estimated under subsection 12.1(3).
9 Section
16 of the Act is amended
(a) by repealing subsection (1);
(b) in subsection (2) of the English version by striking out “is
respect of the revenues set out in the entry of notice” and
substituting “in
respect of the revenues set out in the entry or notice”.
10 The
Act is amended by adding after section 16 the following:
NOTICE OF OBJECTION
Notice of objection
16.1(1)
If a taxpayer considers that he or she is not liable to taxation under
this Act or disputes liability for the amount assessed against the
taxpayer, the taxpayer may, within 30 days after paying the tax or
the date of service or mailing of a notice of assessment, whichever
is sooner, serve the Commissioner with a notice of objection in the
form provided by the Minister setting out the reasons for the objection
and all relevant facts.
16.1(2)
The Commissioner shall, within 60 days after receiving a notice of
objection, reconsider the assessment and confirm, vary or vacate the
assessment or reassess the tax payable under this Act.
16.1(3)
The Commissioner shall immediately serve the taxpayer with a written
notice of his or her decision under subsection (2).
16.1(4)
A separate notice of objection shall be served in respect of each
assessment to which objection is taken but if the facts and reasons
to be set out in the notice of objection are identical to the facts
and reasons in another notice of objection this may be indicated and
one statement of facts and reasons shall be sufficient.
11 Section
17 of the Act is repealed and the following is substituted:
Appeal to Minister
17(1)
If the taxpayer is dissatisfied with the decision of the Commissioner
under section 16.1, the taxpayer
may, within 30 days after receiving the written notice of the Commissioner’s
decision, appeal the decision to the Minister.
17(2)
An appeal shall be commenced by serving on the Minister and the Commissioner
a notice of appeal in the form provided by the Minister setting out
the grounds of the appeal and all relevant facts.
17(3)
The Minister shall, within 30 days after receiving a notice of appeal,
fix a date to consider the appeal and shall serve the appellant and
the Commissioner with a notice of the hearing indicating the date,
time and place of the hearing.
17(4)
The Minister may confirm, vary or reverse the decision of the Commissioner
and shall serve the appellant with a written notice of his or her
decision.
17(5) The Lieutenant-Governor in Council
may make regulations to govern the practice and procedure on appeals
to the Minister.
12 Section
18 of the Act is repealed and the following is substituted:
Appeal to Court of Queen’s
Bench
18(1) If the appellant is dissatisfied with
the decision of the Minister under section 17,
the appellant may, within 30 days after the date of service or mailing
of the notice of the Minister’s decision, appeal the decision
to the Court of Queen’s Bench.
18(2)
An appeal shall be commenced by serving on the Minister a notice of
appeal in writing setting out the grounds of the appeal and all relevant
facts.
13 The
Act is amended by adding after section 18 the following:
Date of hearing of appeal
18.1(1)
The appellant shall, within 14 days after service on the Minister
of the notice of appeal, apply to the Court of Queen’s Bench
for the appointment of a day for the hearing of the appeal.
18.1(2)
The appellant shall, at least 14 days before the hearing, serve on
the Minister a written notice of the day appointed for the hearing.
Jurisdiction and procedures
of the Court of Queen’s Bench
18.2(1)
In any appeal, hearing or proceeding before the Court of Queen’s
Bench, the court shall have full power and authority to direct and
enforce
(a) discovery of documents,
(b) examination for discovery, and
(c) the taking of evidence and depositions
of witnesses before hearings.
18.2(2)
The jurisdiction referred to in subsection (1) may be exercised by
the Court of Queen’s Bench on the application of the Commissioner
or of any party to any appeal or other hearing or proceeding pending.
18.2(3)
An application under subsection (2) shall be made in accordance with
the rules and practice of the Court of Queen’s Bench in respect
of the discovery of documents, examination for discovery and taking
of evidence and depositions of witnesses before trial or hearing.
18.2(4)
An application made under this section shall be deemed to be a matter
in the Court of Queen’s Bench and, when the practice of the
court so requires, the application and the orders or other documents
related to the application shall be filed in the court.
18.2(5)
All orders made by the Court of Queen’s Bench on any application
made under this section shall be deemed to be orders made in the Court
of Queen’s Bench and enforceable as such.
18.2(6)
Any order issued upon an order referred to in subsection (5) shall
be issued out of and returnable to the Court of Queen’s Bench.
18.2(7)
All applications, orders, evidence, exhibits and documents shall,
at the request of the Commissioner or of any party to the appeal,
hearing or proceeding with respect to or in connection with which
the application was made or order was made or issued, be transmitted
by the clerk of the Court of Queen’s Bench to the judge before
whom such appeal, hearing or proceeding is pending.
18.2(8)
All applications and orders and all evidence, exhibits and documents
returned with the application or order shall, when so transferred
to the judge, be available to be used by or before the judge in the
same manner and to the same extent as in any other proceeding before
the Court of Queen’s Bench.
18.2(9)
The rules and practice of the Court of Queen’s Bench with respect
to the admissibility and effect of any evidence, exhibits and documents
received or obtained by the court shall be applicable to any hearing
before the court.
Production of documents
18.3 The
Minister shall, on the hearing of the appeal, produce before the Court
of Queen’s Bench all documents affecting the matter of the appeal
that are in the possession or under the control of the Minister.
Hearing and decision of
appeal
18.4 The Court of Queen’s Bench shall
hear the appeal and the evidence adduced before the court by the appellant
and the Crown in a summary manner, and shall decide the matter of
the appeal.
Costs
18.5 The
costs of the appeal are in the discretion of the Court of Queen’s
Bench and the court may make an order respecting costs in favour of
or against the Crown, and may fix the amount of the costs.
Appeal to Court of Appeal
18.6 There
shall be an appeal from a decision of the Court of Queen’s Bench
to the Court of Appeal on any point of law raised on the hearing of
the appeal, and the rules governing appeals to the Court of Appeal
from a decision of the Court of Queen’s Bench apply to appeals
under this section.
Requirement to keep records
18.7 A
taxpayer who serves a notice of objection shall keep all records affecting
the matter of the objection until the objection is disposed of and
any appeal is disposed of or the time for commencing an appeal has
expired.
14 Section
19 of the Act is repealed.
15 Section
21 of the Act is repealed and the following is substituted:
Effect of notice of objection
and notice of appeal on liability
21 Neither
the service of a notice of objection or a notice of appeal by any
taxpayer nor any delay in the hearing of an objection or appeal shall
in any way affect the due date, the interest or penalties, or any
liability for payment provided by this Act in respect of any tax that
is the subject matter of the objection or appeal, or in any way delay
the collection of the tax, but in the event of the tax being set aside
or reduced, the Minister shall refund to the taxpayer the amount of
the tax or excess tax paid by the taxpayer, and of any additional
interest or penalty paid on such tax or excess.
16 Section
22 of the Act is amended by striking out “with the penalties
thereupon” and substituting “with the interest and penalties
thereupon”.
17 Section
23 of the Act is amended by striking out “with the penalties
thereon” and substituting “with the interest and penalties
thereon”.
18 Section
24 of the Act is repealed and the following is substituted:
Right of action of Minister
24(1)
In addition to any other remedies given by this Act for the recovery
of the tax, interest, penalties, additions, percentages, amounts or
costs that are overdue and unpaid, the Minister may, if the Minister
is of the opinion that payment of the tax, interest, penalties, additions,
percentages, amounts or costs accruing due or to become due is endangered,
apply to the Court of Queen’s Bench
(a) for an injunction,
(b) for an order appointing a receiver with
all the necessary powers, or
(c) for any other order or relief the court
considers necessary or appropriate in the circumstances.
24(2)
The Court of Queen’s Bench may grant an order under subsection
(1) for the following purposes:
(a) to secure payment of the tax, interest,
penalties, additions, percentages, amounts or costs due, accruing
due or to become due;
(b) to prohibit, prevent or restrict
(i) the removal or transportation of any
minerals or mineral products,
(ii) the transfer, assignment or transmission
of a mining right, or
(iii) mining operations from being carried
on in any mine;
(c) to provide for the operation of a mine
in the manner or in accordance with the terms and conditions the court
considers necessary or appropriate in the circumstances.
24(3)
The Court of Queen’s Bench may grant an order under subsection
(1) and may enforce the order in the same manner as any other order
or judgment of the court.
19 Section
25 of the Act is amended
(a) by repealing subsection (1) and substituting the following:
Distress of goods
25(1)
The Minister may issue a certificate stating that the taxpayer is
in default if the taxpayer neglects or refuses to pay any tax, interest,
penalty, addition, percentage, amount, costs or any installment of
tax due under this Act and
(a) the taxpayer fails to serve a notice of
objection before the time for serving the notice has expired,
(b) the taxpayer fails to serve a notice of
appeal before the time for serving the notice has expired, or
(c) any appeal has been finally disposed of.
(b) by adding after subsection (1) the following:
Distress of goods
25(1.1)
The Minister may issue a certificate on the expiration of 10 days
after the mailing of a registered letter demanding payment.
Distress of goods
25(1.2)
Any person whom the Minister considers appropriate may, on receipt
of the certificate, distrain the goods and chattels of the taxpayer.
20 Section
26 of the Act is amended
(a) by repealing subsection (1) and substituting the following:
Certificate of non payment
by taxpayer
26(1) All taxes, interest, penalties, additions,
percentages, amounts and costs payable under this Act and remaining
unpaid, in whole or in part, may be certified by the Minister
(a) if the taxpayer fails to serve a notice
of objection before the time for serving the notice has expired, after
60 days from the date of service or mailing of the notice of assessment,
and
(b) if the taxpayer serves a notice of objection
or a notice of appeal before the time for serving the notice has expired,
after 60 days from the disposal of the objection or appeal, as the
case may be.
(b) in subsection (2) by striking out “The Court of Queen’s
Bench of New Brunswick” and substituting “the Court of Queen’s Bench”.
21 The
Act is amended by adding after section 29 the following:
Offences and penalty respecting
subsection 12.1(6)
29.1 A
person who violates or fails to comply with subsection 12.1(6) commits an offence punishable
under Part II of the Provincial Offences
Procedure Act as a category E offence.
22 The
Act is amended by adding after section 30 the following:
Offences and penalty respecting
obstruction
30.1 A person who obstructs or interferes with
the mine assessor in the carrying out of an examination or inspection
under this Act commits an offence punishable under Part II of the Provincial Offences Procedure Act as
a category E offence.
23 Section
31 of the Act is repealed and the following is substituted:
Service
31(1)
Any notice or document that is to be served on, sent or given to a
person under this Act shall be sufficiently served, sent or given
(a) if it is served by personal service,
(b) if it is mailed by ordinary mail to the
last known address of the person, or
(c) if it is mailed by registered mail to the
last known address of the person.
31(2)
Any notice or document sent under this Act by mail shall be deemed
to have been received by the person to whom it was addressed 5 days
after the day of mailing.
24 Subsection
32(1) of the Act is amended
(a) by repealing paragraph (a);
(b) by adding after paragraph (a.4) the following:
(a.41) describing the circumstances under subsection 3(6);
(a.42) prescribing the period of time for the
purposes of subsection 3(6);
(a.43) prescribing the time under subsection 3(7);
25 This
Act or any provision of it comes into force on a day or days to be
fixed by proclamation.