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This Act is current to September 19, 2018
See the Tables of Legislative Changes for this Act’s legislative history, including any changes not in force.

Provincial Sales Tax Act

[SBC 2012] CHAPTER 35

Part 11 — Recovery of Amounts Owing

Collection bond

216   (0.1) In this section, "maximum bond amount", in relation to a bond required to be deposited by a person with the director under this section, means 6 times the estimated amount, determined in a manner and by a procedure the director considers adequate and expedient, of

(a) tax that would normally be levied under this Act by the person in a month, and

(b) tax that would normally be paid under this Act by the person in a month.

(1) The director may require an applicant, as defined in section 168, or a registrant to deposit with the director a bond, by way of cash or other security, satisfactory to the director.

(2) The amount of the bond is to be determined by the director, but the amount must not be greater than the maximum bond amount.

(2.1) If there is a change in circumstances after a bond is provided under subsection (1), the director may vary the amount of the bond required, but the amount must not be greater than the maximum bond amount.

(3) If a person who has deposited a bond under this section fails to levy or pay tax or remit an amount in accordance with this Act, the director, after giving written notice to the person, may apply all or part of the bond to the amount that should have been levied, paid or remitted by the person, to any related penalty and to any interest on that amount and the penalty.

(4) The director may return a bond deposited under this section, or may pay from the consolidated revenue fund an amount equal to the amount remaining of a bond deposited under this section, to the person who deposited the bond if

(a) the person has ceased being a registrant, and

(b) the person as a registrant has no amount owing to the government under this Act.

Court proceeding to recover amount owing

217   The government may commence a proceeding in a court of competent jurisdiction to recover an amount owing to the government under this Act as a debt due to the government.

Summary proceedings

218   (1) If a person fails to pay or remit an amount owing to the government under this Act, the director may issue a certificate specifying the amount owed and the name of the person who owes it.

(2) The director may file with the Supreme Court a certificate issued under subsection (1).

(3) A certificate filed under subsection (2) has the same force and effect, and all proceedings may be taken on the certificate, as if it were a judgment of the court in favour of the government for the recovery of a debt in the amount specified in the certificate against the person named in the certificate.

(4) If the amount specified in a certificate is different from the actual amount owing to the government under this Act, the director may correct the amount by issuing a new certificate specifying the revised amount owed and the name of the person who owes it.

(5) The director may file with the Supreme Court a certificate issued under subsection (4).

(6) A certificate filed under subsection (5)

(a) revises the certificate filed under subsection (2) that names the same person,

(b) is deemed to be filed at the same time as the certificate it revises, and

(c) has the same force and effect, and all proceedings may be taken on the certificate, as if it were a judgment of the court in favour of the government for the recovery of a debt in the amount specified in the certificate against the person named in the certificate.

Alternative remedies

219   (1) Remedies available to the government for the recovery of an amount owing to the government under this Act may be exercised separately, concurrently or cumulatively.

(2) The liability of a person for the payment of an amount owing to the government under this Act is not affected by a fine or penalty imposed on or paid by the person for contravention of this Act.

Attachment of funds

220   (1) In this section, "taxpayer" means any person who is liable to pay or remit to the government an amount under this Act.

(2) If the director knows or suspects that a person is or is about to become indebted or liable to make a payment to a taxpayer, the director may demand that that person pay to the government on account of the taxpayer's liability under this Act all or part of the money otherwise payable to the taxpayer.

(3) Without limiting subsection (2), if the director knows or suspects that a person is about to advance money to or make a payment on behalf of a taxpayer, or make a payment in respect of a negotiable instrument issued by a taxpayer, the director may demand that that person pay to the government on account of the taxpayer's liability under this Act the money that would otherwise be advanced or paid.

(4) A demand under this section may be served by personal service, registered mail, electronic mail or fax.

(5) If under this section the director demands that a person pay to the government, on account of a taxpayer's liability under this Act, money otherwise payable by that person to the taxpayer as interest, rent, remuneration, a dividend, an annuity or other periodic payment, the demand

(a) is applicable to all of those payments to be made by the person to the taxpayer until the liability under this Act is satisfied, and

(b) operates to require payments to the government out of each payment of the amount stipulated by the director in the demand.

(6) Money or a beneficial interest in money in a savings institution

(a) on deposit to the credit of a taxpayer at the time a demand is served, or

(b) deposited to the credit of a taxpayer after a demand is served

is money for which the savings institution is indebted to the taxpayer within the meaning of this section, but money on deposit or deposited to the credit of a taxpayer as described in paragraph (a) or (b) does not include money on deposit or deposited to the credit of a taxpayer in the taxpayer's capacity as a trustee.

(7) A demand under this section continues in effect until the earliest of the following:

(a) subject to paragraphs (b) and (c), the demand is satisfied;

(b) subject to paragraph (c), 90 days after the demand is served;

(c) three years after the demand is served, if the demand is made in respect of an outstanding legal claim or insurance claim that, if resolved in the taxpayer's favour, will result in money becoming available to the taxpayer.

(8) Despite subsection (7), if a demand is made in respect of a periodic payment referred to in subsection (5), the demand continues in effect until it is satisfied unless no periodic payment is made or is liable to be made within 90 days after the demand is served, in which case the demand ceases to have effect at the end of that period.

(9) Money demanded from a person by the director under this section becomes payable

(a) as soon as the person is served with the demand, if that person is indebted or liable to make a payment to the taxpayer at the time the demand is served, or

(b) as soon as the person becomes indebted or liable to make a payment to the taxpayer, in any other case.

(10) A person who fails to comply with a demand under subsection (2) or (5) is liable to pay to the government an amount equal to the amount that the person was required to pay under subsection (2) or (5).

(11) A person who fails to comply with a demand under subsection (3) is liable to pay to the government an amount equal to the lesser of

(a) the total of the money advanced or paid, and

(b) the amount that the person was required to pay under subsection (3).

(12) Money paid by any person to the government in compliance with a demand under this section

(a) satisfies the original liability to the extent of the payment, and

(b) is deemed to have been paid by that person to the taxpayer.

Lien

221   (1) In this section:

"amount owing" means an amount remaining unpaid or unremitted, any related penalty and any interest on that amount and the penalty;

"associated corporation" includes a corporation that is determined under subsection (12) to be associated with another corporation for the purposes of this section;

"collateral" has the same meaning as in the Personal Property Security Act;

"financing statement" has the same meaning as in the Personal Property Security Act;

"inventory" has the same meaning as in the Personal Property Security Act;

"personal property registry" means the registry under the Personal Property Security Act;

"proceeds" has the same meaning as in the Personal Property Security Act;

"property", when referring to the property of an associated corporation or a related individual, means property that is used in, or in conjunction with, the business in respect of which the amount referred to in subsection (2) is required to be levied and remitted;

"purchase money security interest" has the same meaning as in the Personal Property Security Act;

"security interest" has the same meaning as in the Personal Property Security Act.

(2) If a person is required to pay or remit an amount to the government under this Act and does not pay or remit the amount, the director may register a lien

(a) against the real property of

(i) the person,

(ii) an associated corporation of the person, or

(iii) a related individual of the person

by registering a certificate of lien in the prescribed form in the appropriate land title office in the same manner that a charge is registered under the Land Title Act, and

(b) against the personal property of

(i) the person,

(ii) an associated corporation of the person, or

(iii) a related individual of the person

by registering a financing statement in the personal property registry.

(3) On registration of a certificate of lien against the real property of a person under subsection (2) (a), a lien is created on the real property against which the lien is registered for the amount owing.

(4) On registration of a lien against the personal property of a person under subsection (2) (b), a lien is created on the present and after acquired personal property in which the person has a legal or equitable interest, including, in the case of a lien referred to in paragraph (a) or (b) of this subsection, any portion of the property that is subject to a prior lien or security interest, for the following:

(a) if the lien relates to taxes that were required to be levied and collected before registration, the amount of those taxes remaining uncollected and unremitted, any related penalty and any interest on that amount and the penalty;

(b) if the lien relates to taxes that were collected, or an amount collected as if it were tax, but not remitted before registration, the amount remaining unremitted, any related penalty and any interest on that amount remaining unremitted and the penalty;

(c) any amount, other than an amount referred to in paragraph (a) or (b), owing by the person under this Act.

(5) Subject to subsections (6) and (7), a lien, other than a lien referred to in subsection (4) (c), that is registered under subsection (2) (b) against personal property

(a) is not limited to the equity that the person against whose personal property the lien is registered has in the personal property, and

(b) despite the provisions of any other enactments, has priority over a security interest or other lien, whether or not the security interest or other lien existed before the lien was registered under subsection (2) (b).

(6) A lien registered under subsection (2) (b) against personal property does not have priority over

(a) a security interest that secures unpaid wages under section 87 (3) of the Employment Standards Act, regardless of when that security interest arises, or

(b) a purchase money security interest in collateral other than collateral that at the time the purchase money security interest attaches is inventory or its proceeds.

(7) If

(a) one or more liens are registered under subsection (2) (b) against the personal property of a person, and

(b) the property referred to in paragraph (a) of this subsection is subject to

(i) a security interest perfected under the Personal Property Security Act before the registration of the first lien under subsection (2) (b), or

(ii) another lien created before the registration of the first lien under subsection (2) (b),

the total amount secured by all the liens registered under subsection (2) (b), other than liens referred to in subsection (4) (c), is limited in amount, with respect to all the prior security interests or other liens referred to in paragraph (b) of this subsection, to the amount of taxes remaining uncollected or unremitted, or both, that were required to be collected or were collected by the person for the 6 months before the date of the most recent registration of a lien under subsection (2) (b), any related penalty and any interest on that amount and the penalty.

(8) In relation to a certificate of lien registered under subsection (2) (a) against the real property of a person, the director may register a certificate of lien in the form prescribed for the purposes of subsection (2) (a) in the appropriate land title office in the same manner that a charge is registered under the Land Title Act if

(a) the certificate of lien registered under subsection (2) (a) against the real property of the person contains a statement of the amount owing, and

(b) the director is satisfied that the amount referred to in paragraph (a) of this subsection that is stated in that certificate of lien is incorrect.

(8.1) In relation to a financing statement registered under subsection (2) (b) against the personal property of a person, the director may register a financing change statement, as defined in the Personal Property Security Act, in the personal property registry if

(a) the financing statement registered under subsection (2) (b) against the personal property of the person contains a statement of the amount owing, and

(b) the director is satisfied that the amount referred to in paragraph (a) of this subsection that is stated in that financing statement is incorrect.

(8.2) A certificate of lien registered under subsection (8) and a financing change statement registered under subsection (8.1) must contain a revised statement of the amount owing.

(9) On registration of a certificate of lien against the real property of a person under subsection (8), the certificate of lien registered under subsection (2) (a) against the real property of the person is, at the same time it was originally registered, deemed to be revised to set out the amount owing as stated in the certificate of lien registered under subsection (8).

(9.1) On registration of a financing change statement against the personal property of a person under subsection (8.1), the financing statement registered under subsection (2) (b) against the personal property of the person is, at the same time it was originally registered, deemed to be revised to set out the amount owing as stated in the financing change statement registered under subsection (8.1).

(10) Despite section 228 [confidentiality], the director must,

(a) on the oral or written request of a person, disclose in writing the amount of the lien under this section registered against the personal or real property of the person, or

(b) on the written request of a person accompanied by the written consent of a named person, disclose in writing the amount of the lien under this section registered against the personal or real property of the named person.

(11) If the director believes that one corporation is associated with another corporation within the meaning of section 256 of the Income Tax Act (Canada), the director may request one or both of the corporations to provide to the director the records and information required by the director to confirm or rebut that belief.

(12) The director may determine that corporations are associated corporations for the purposes of this section if

(a) a corporation that has been requested to provide records or information to the director under subsection (11) fails or refuses to comply with that 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 section confirm the director's belief that the corporations are associated.

(13) Immediately after a corporation is determined under this section to be associated with a person referred to in subsection (2) (a) (i) and (b) (i), the director

(a) must notify the corporation of this in writing, and

(b) may register a lien under this section against the real and personal property of the corporation.

(14) The director may seize personal property against which a lien is registered under subsection (13) at any time after the registration of the lien, but must not take any action to realize on those assets until the later of

(a) the date that is 90 days after the date on which the notice required under subsection (13) (a) was sent to the corporation, and

(b) if a notice of appeal is served on the minister in respect of the determination within the time provided by section 211 (3), the date on which the minister upholds the determination under that appeal.

(15) If, at any time, the director becomes convinced that the corporations were not associated within the meaning of section 256 of the Income Tax Act (Canada) at the time that the lien was registered under subsection (13) (b) of this section or if the minister or a court of competent jurisdiction upholds the corporation's appeal against the director's determination on the basis that the corporations were not associated at the time that the lien was registered, the director must,

(a) if the director has not realized on any of the assets against which the lien was registered, promptly release the lien, and

(b) if the director has realized on some or all of the assets against which the lien was registered, promptly release the lien against the remaining assets and pay the proceeds realized from the sale of the realized assets minus any costs or expenses incurred in the sale

(i) to the corporation, or

(ii) if the director considers it appropriate to do so, into the Supreme Court under Rule 10-3 of the Supreme Court Civil Rules.

(16) The release of the lien under subsection (15) (a) or the release of the lien and payment of the applicable net sale proceeds under subsection (15) (b) is deemed to be full satisfaction of all claims any person, including the corporation, might have arising out of or in any way connected with the determination made under subsection (12), the registration of the lien or the seizure or sale of any or all of the assets against which the lien was registered.

Responsibility of person having control of property

222   (1) In this section, "secured party" has the same meaning as in the Personal Property Security Act.

(2) This section applies to a person who, as assignee, liquidator, administrator, receiver, receiver manager, trustee, secured party or similar person, other than a trustee appointed under the Bankruptcy and Insolvency Act (Canada), takes control or possession of the property of a person who has collected tax or an amount as if it were tax or is required to levy or remit tax under this Act.

(3) Before distributing the proceeds from the realization of the property referred to in subsection (2), a person to whom this section applies must obtain from the director a certificate that the amount that constituted a lien under section 221 has been paid.

(4) If a person to whom this section applies distributes the proceeds from the realization of the property referred to in subsection (2), without having obtained the certificate required by subsection (3), the person is personally liable to the government for an amount equal to the amount required to be paid to obtain the certificate.

(5) An amount payable under subsection (4) in respect of a distribution of the proceeds from the realization of property must be paid on or before the last day of the month after the month in which the disposition occurred.

(6) Despite subsection (5), an amount payable under subsection (4) by a registrant must be paid on or before the prescribed date and in the prescribed manner.

Notice of enforcement proceedings

223   (1) Before taking proceedings for the recovery of an amount owing to the government under this Act, the director must give to the person who owes the amount notice of the director's intention to enforce payment.

(2) Failure to give notice under subsection (1) does not affect the validity of proceedings taken for the recovery of an amount owing to the government under this Act.

Limitation period

224   (1) In this section, "collection proceeding" means

(a) a proceeding for the recovery of an amount owing to the government under section 217,

(b) the filing of a certificate under section 218,

(c) the making of a demand under section 220, and

(d) the registration or enforcement of a lien under section 221.

(2) A collection proceeding may be commenced at any time within 7 years after the date of the notice of assessment for the amount claimed in the collection proceeding.

(3) Despite subsection (2), a collection proceeding that relates to a contravention of this Act or the regulations and that involves wilful default or fraud may be commenced at any time.

(4) If, before the expiry of the limitation period that applies under subsection (2) to an amount claimed, a person acknowledges liability in respect of the amount claimed, the date of the notice of assessment is deemed to be the day on which the acknowledgement is made.

(5) Subsection (4) does not apply to an acknowledgement, other than an acknowledgement referred to in subsection (6), unless the acknowledgement is

(a) in writing,

(b) signed, by hand or by electronic signature within the meaning of the Electronic Transactions Act,

(c) made by the person making the acknowledgement or the person's agent, and

(d) made to the government or an agent of the government.

(6) In the case of an amount claimed to which the limitation period under subsection (2) applies, for the purposes of subsection (4), part payment of the amount by the person against whom the claim is or may be made or by the person's agent is an acknowledgement by the person against whom the claim is or may be made of liability in respect of the claim.

(7) Section 24 (2), (4) and (10) of the Limitation Act applies for the purposes of this section.

(8) The liability of a person for the payment of an amount owing to the government under this Act is not affected by the expiry of the limitation period that applies under subsection (2) to the amount claimed.

Application for injunction

225   The director may apply to the Supreme Court for an injunction ordering a person to cease selling, offering to sell, providing or offering to provide tangible personal property, software or a taxable service or leasing or offering to lease tangible personal property until the person complies with this Act and the regulations and the person's obligations under this Act are fulfilled.

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