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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.

Tobacco Tax Act

[RSBC 1996] CHAPTER 452

Contents
1Definitions
2Tax on consumer
3Tax on tobacco brought into British Columbia
4Absorption of tax prohibited
5Prohibitions against selling tobacco without permit
6Dealer's permits
7Refusal, suspension and cancellation of dealer's permits or retail authorization
8Limits on tobacco purchased for resale
9Suspension under the Tobacco and Vapour Products Control Act
10Certificate required for bulk transaction
11Security
12Security to wholesale dealer
12.1Demand for information
12.2Service of notices
12.3Delegation
13Confidentiality
14Collector deemed to be under Financial Administration Act
15Allowance for collectors
16Refund or deduction for bad debts
17Refund where no obligation to pay or collect
17.1Refunds when joint and several liability
18Claim for refund
19Refund limits
20Repealed
21Inspection and audit powers
22Assessments and penalties
22.1Assessment against board member
22.2Notice of assessment
23Right of appeal
24Appeal to court
25Irregularities do not affect validity
25.1Assessments and penalties
26Effects of pending appeal and of appeal changing decision
27Consumer liable for tax
28Liability for amounts collected
28.1Board member's liability
28.2Deemed board member
28.3Liability of other persons
29Notice to taxpayer before taking proceedings
30Court proceeding to recover amount owing
31Summary proceedings
32Attachment
32.1Lien
32.2Responsibility of person having control of property
33Application for injunction
34Alternative remedies
35Penalty and interest
36Limitation period
37Collection bond
38Liability of corporation officers
39Offences
40Prosecutions
41Section 5 of the Offence Act
42Limitation
43Agreements for collection of tax by customs officers and postal agents
43.1Band tax agreement
43.2Minister may enter into agreement
44Power to make regulations
44.1Not in force
44.2Refunds authorized or required under regulations
45Proceeds paid into consolidated revenue fund
46Repealed
46.1Effect on Provincial Sales Tax Act
47Right to search for tobacco
48Search warrants
49Requirement to give assistance
50Seizure by peace officer
51Seizure by official
52Order for detention of things seized
53Detention of evidence
54Detention and forfeiture of tobacco
55Third parties claiming an interest in things seized
56Report of seizures
57Absence of mark or stamp to be notice
58Prohibitions
59Grams of tobacco per cigarette

Definitions

1   (1) In this Act:

"assessment" includes reassessment;

"band" has the same meaning as in the Indian Act (Canada);

"band bylaw" means a bylaw passed by a band that imposes a tax on an Indian or band purchasing tobacco on a reserve, where the tax is collected by the Province under an agreement referred to in section 43.1;

"board member" means a member of a board of directors of a corporation and includes a person who is deemed to be a board member under section 28.2;

"cigar" has the same meaning as in section 2 of the Excise Act, 2001 (Canada);

"collector" means a dealer who is appointed by the director to act as agent of the minister to collect the tax imposed by this Act;

"consumer" means, subject to subsection (2), a person who

(a) acquires tobacco in British Columbia, or

(b) in the case of a person ordinarily resident in British Columbia, or carrying on business in British Columbia, brings into British Columbia tobacco acquired outside British Columbia,

for the person's own use or consumption, or for the use or consumption by others at the person's expense, or on behalf of, or as the agent for, a principal who wishes to acquire the tobacco for use or consumption by the principal or other persons at the principal's expense;

"customs officer" means an officer as defined in section 2 of the Customs Act (Canada), R.S.C. 1970, c. C-40, who is employed at a customs office in British Columbia;

"dealer" means a person who, either at wholesale or at retail,

(a) sells or offers to sell, in British Columbia, tobacco, or

(b) keeps for sale, in British Columbia, tobacco;

"dealer's permit" means a permit issued under section 6;

"director" means the person authorized by the minister to administer this Act;

"Indian" has the same meaning as in the Indian Act (Canada);

"package" includes a box, tin or other container in which tobacco is sold at retail;

"postal agent" means the Canada Post Corporation established under the Canada Post Corporation Act and its officers, employees and agents;

"reserve" has the same meaning as in the Indian Act (Canada);

"residence" means a building or part of a building, recreation vehicle, manufactured home, trailer, tent or vessel that is actually occupied and used by the owner, lessee or tenant solely as a

(a) private dwelling,

(b) private guest room in a hotel, motel, auto court, lodging house, boarding house or club, or

(c) private summer dwelling, or private dwelling or living place used during vacation periods, or private lodge,

together with the land appurtenant to it that is essential or appropriate for the convenient use, occupation and enjoyment of a private dwelling or private summer dwelling;

"retail authorization" means an authorization to sell tobacco held by a person in a class prescribed under section 44 (2) (i), or issued by the director in accordance with a regulation under section 44 (2) (i.1);

"retail dealer" means a person who sells or offers for sale, in British Columbia, tobacco to a consumer;

"retail price", in relation to a cigar, means the price for which the cigar was purchased by a consumer, including a price in money and also the value of services rendered and other consideration accepted by the person who sold the cigar to the consumer as or on account of the price of the cigar, excluding tax imposed under Part IX of the Excise Tax Act (Canada);

"retail sale" means a sale of tobacco to a consumer;

"tax", in relation to tax under this Act, includes, except in section 22,

(a) an amount a person must pay to the government under section 10 (2), and

(b) an amount for which a person is personally liable to the government under section 32.2 (4);

"tobacco" means,

(a) except in sections 6 (7) and 9 (1), tobacco and tobacco products in any form in which they may be consumed, by a consumer, and includes snuff and raw leaf tobacco, and

(b) in sections 6 (7) and 9 (1), tobacco within the meaning of the Tobacco and Vapour Products Control Act;

"wholesale dealer" means a person who sells or offers for sale, in British Columbia, tobacco for the purpose of resale.

(2) Despite the definition of "consumer" in subsection (1), the term "consumer" as used

(a) in the definitions of "retail price" and "tobacco" in subsection (1), and

(b) in sections 22 (2), 27 (3), 39 (4) (d), 43 (2) (b) and 46.1,

includes a "consumer" as defined in section 3 (1).

(3) For the purposes of this Act, a person is deemed to be carrying on business in British Columbia if

(a) the person's name, or any name under which the person carries on business, is listed in a telephone directory

(i) for any part of British Columbia, and

(ii) in which an address or telephone number in British Columbia is given for the person,

(b) the person's name, or any name under which the person carries on business, appears or is announced in any advertisement in which an address or telephone number in British Columbia is given for the person, or

(c) the person has, in British Columbia,

(i) employees or other representatives, or

(ii) a warehouse, office or place of business.

Tax on consumer

2   (1) In this section:

"cigarette" includes a tobacco stick;

"taxable price", in relation to a retail sale of a cigar, means

(a) the retail price of the cigar, if the retail dealer who sells the cigar also manufactured the cigar in Canada or imported the cigar into Canada, or

(b) in any other case, the total of

(i) the wholesale price of the cigar determined in accordance with subsection (1.2), (1.3) or (1.4), and

(ii) 30% of the amount under subparagraph (i);

"tobacco stick" means a roll or tubular construction of tobacco intended for smoking, other than a cigar, that requires further preparation to be consumed.

(1.1) A consumer must, at the time of making a purchase of tobacco in the form of cigars, pay to the government a tax at the rate of 90.5% of the taxable price of any cigar purchased by the consumer to a maximum tax of $7 per cigar.

(1.2) Subject to subsections (1.3) and (1.4), for the purposes of paragraph (b) (i) of the definition of "taxable price" in subsection (1), the wholesale price of a cigar is the total of the following:

(a) a price in money and also the value of services rendered and other consideration accepted by the person who sold the cigar to the retail dealer as or on account of the price of the cigar;

(b) the cost of, or charges for, mailing, delivery or transportation, and customs, whether or not they are shown separately in the books of the person who sold the cigar to the retail dealer or on any invoice or in the computation of the price, and whether or not title has passed to the retail dealer before delivery to the retail dealer;

(c) the amount of tax imposed under the Excise Tax Act (Canada), excluding tax imposed under Part IX of that Act.

(1.3) If the director considers that the wholesale price of a cigar determined under subsection (1.2) of this section is lower than a reasonable wholesale price, the director may determine the wholesale price of the cigar, and, subject to subsection (1.4), the amount determined is deemed to be the wholesale price of the cigar for the purposes of paragraph (b) (i) in the definition of "taxable price" in subsection (1).

(1.4) If a determination by the director under subsection (1.3) is varied on appeal under section 23 or 24, the wholesale price as varied is deemed to be the wholesale price of the cigar for the purposes of paragraph (b) (i) in the definition of "taxable price" in subsection (1).

(2) A consumer must, at the time of making a purchase of tobacco in the form of cigarettes, pay to the government a tax at the rate of 27.5¢ for each cigarette purchased.

(3) A consumer must, at the time of making a purchase of tobacco in a form other than cigars or cigarettes, pay to the government a tax at the rate of 37.5¢ for each gram of tobacco purchased.

(4) The tax payable on tobacco, other than cigars, must be calculated separately on every package.

(5) The tax payable on cigars must be calculated separately on the taxable price of each cigar whether or not it is sold in a package.

(6) The tax payable under this section must be calculated to the nearest cent and, for that purpose, 1/2¢ must be counted as 1¢, and the minimum tax payable is 1¢.

(7) A retail dealer who is authorized under this Act to sell tobacco at retail

(a) is deemed to be an agent for the minister,

(b) must, at the time of sale, levy and collect the tax imposed by this Act on the consumer,

(c) subject to section 12 (3), must, in respect of tobacco purchased by the retail dealer from a collector, remit the tax to the collector on demand, and

(d) must, in respect of tobacco purchased by the retail dealer from someone other than a collector, remit the tax to the minister at the prescribed time and in the prescribed manner.

(7.1) If a person who is not authorized under this Act to sell tobacco at retail sells tobacco to a consumer and receives money in respect of the tax payable on the tobacco, that person must immediately remit that money to the minister.

(8) A collector who sells tobacco to a retail dealer

(a) is deemed to be an agent for the minister,

(b) subject to section 12 (2), must collect the tax from the retail dealer, and

(c) subject to section 11 (4), must remit the tax to the minister at the prescribed time and in the prescribed manner.

(9) A person other than a collector who sells tobacco to a retail dealer and receives money in respect of the tax payable on the tobacco must immediately remit that money to the minister.

(10) Despite subsections (9) and (11),

(a) a person is not authorized as agent for the minister to collect from a retail dealer money paid as or on account of tax unless that person is a collector, and

(b) a retail dealer who has, in respect of a retail sale, paid money to a person who is not a collector as or on account of the tax payable on the retail sale must, despite that payment, collect and remit to the minister in accordance with subsection (7) (d) the tax imposed by this Act in respect of that retail sale.

(10.1) [Repealed 1998-36-9.]

(11) Despite section 16, any money received by a dealer, other than a security received under section 12, in respect of a sale of tobacco, up to the full amount of the taxes owing, is deemed to be payment of the taxes owing by the consumer under this Act.

(12) If a person collects an amount as if it were a tax imposed under this Act, the person must remit the amount collected to the director at the same time and in the same manner as tax collected under this Act.

Tax on tobacco brought into British Columbia

3   (1) In this section, "consumer" means a person who

(a) resides, ordinarily resides or carries on business in British Columbia, and

(b) brings or sends into British Columbia, or acquires or receives delivery of in British Columbia, tobacco

(i) for the person's own consumption or use,

(ii) for the consumption or use by another person at the first person's expense, or

(iii) on behalf of or as the agent for a principal for consumption or use by the principal or by another person at the principal's expense.

(2) Unless subsection (3) or (4) applies, a consumer must immediately, at the time of bringing, sending, acquiring or receiving tobacco in British Columbia,

(a) report the matter to the director in writing,

(b) provide the director with all information that is required by the director regarding the tobacco, and

(c) subject to subsection (2.1), pay to the government the same amount of tax that would have been payable had the tobacco been purchased in British Columbia.

(2.1) For the purposes of subsection (2) (c) of this section, in the case of tobacco in the form of cigars, the taxable price referred to in section 2 (1.1) and (5) is deemed to be equal to the retail price of the cigar.

(3) A consumer who is an individual must immediately, at the time of bringing, sending or receiving tobacco, other than tobacco in the form of cigars, into British Columbia through a port of entry from a place outside of Canada,

(a) report the matter to a customs officer,

(b) provide the customs officer with all information that is required by the customs officer regarding the tobacco, and

(c) pay to the government the same amount of tax that would have been payable had the tobacco been purchased in British Columbia, by paying the tax to the customs officer as agent of the government.

(4) A consumer who is an individual must immediately, at the time of receiving tobacco, other than tobacco in the form of cigars, into British Columbia by post from a place outside of Canada,

(a) provide the postal agent where the tobacco is received with all information that is required by the postal agent regarding the tobacco, and

(b) pay to the government the same amount of tax that would have been payable had the tobacco been purchased in British Columbia, by paying tax to the postal agent as an agent of the government.

(5) Subsections (3) and (4) do not apply to tobacco if no tax is payable on the tobacco under Division III of Part IX of the Excise Tax Act (Canada).

(6) If a consumer fails or refuses to comply with subsection (3) or (4), the customs officer or postal agent may detain the tobacco.

(7) Tobacco detained under subsection (6) must be dealt with as follows:

(a) if, before the end of 60 days after the start of the detention, the tax payable on the tobacco at the time of its detention and any expenses related to the detention are paid and the requirements of subsection (3) (b) or (4) (b) are met, the tobacco must be returned to the purchaser;

(b) if the tax and expenses are not paid within the time limit referred to in paragraph (a) or the requirements of subsection (3) (b) or (4) (b) are not met, the tobacco is forfeited to the government and may be disposed of as directed by the director.

Absorption of tax prohibited

4   A dealer must not advertise or hold out or state to the public or to a consumer, directly or indirectly, that the tax or any part of it imposed by this Act will be assumed or absorbed by the dealer, or that it will not be considered as an element in the price to the consumer or, if added, that it or any part of it will be refunded.

Prohibitions against selling tobacco without permit

5   (1) A person must not sell or offer to sell tobacco at retail in British Columbia unless the person is authorized to sell tobacco at retail by a dealer's permit or by a retail authorization.

(2) A person must not sell or offer to sell tobacco at wholesale in British Columbia unless the person is authorized to sell tobacco at wholesale by a dealer's permit.

(3) A person must not sell or offer to sell in British Columbia tobacco for resale to any person who is not authorized to sell tobacco by a dealer's permit or by a retail authorization.

(4) A person must not sell or offer to sell tobacco at or from any location in British Columbia in respect of which the person's dealer's permit or the person's retail authorization has been suspended or cancelled.

(5) Unless authorized by the director, a person must not acquire in British Columbia tobacco for resale except from a person who holds a dealer's permit to sell tobacco at wholesale.

(6) A person must not participate or acquiesce in a contravention of this section.

Dealer's permits

6   (1) The director may issue, at the director's discretion but subject to the regulations, a dealer's permit authorizing a person to sell tobacco at retail, at wholesale or at both.

(2) A dealer's permit is not transferable.

(3) A person who is issued a dealer's permit must

(a) keep the permit at the person's principal place of business in British Columbia, and

(b) present the permit for inspection when requested to do so by the director, by a person designated by the director or by a person within a class of persons designated by the director.

(4) Before the director issues a dealer's permit to a person under subsection (1), the director may require the person to deposit a bond under section 37 by the date specified by the director.

(5) The director may refuse to issue a dealer's permit to a person if the person has failed to deposit a bond required under section 37 by the date specified by the director under subsection (4) of this section.

(6) The director may refuse to issue a dealer's permit if

(a) the application for the dealer's permit is in respect of a location where an authorization or dealer's permit held by another person was suspended or cancelled by the director under section 7, and

(b) there is evidence satisfactory to the director that the applicant for the dealer's permit is not at arm's length from the person referred to in paragraph (a).

(7) The director must not issue a dealer's permit in respect of a location to which a prohibition order made in relation to tobacco under the Tobacco and Vapour Products Control Act applies.

Refusal, suspension and cancellation of dealer's permits or retail authorization

7   (1) If the director refuses to issue a dealer's permit, the director must provide written reasons to the applicant for the permit.

(2) If satisfied that a person has not complied with this Act or the regulations, the director may, without advance notice to the person,

(a) suspend the person's dealer's permit or the person's retail authorization for a period of up to 30 days,

(b) suspend the person's dealer's permit or the person's retail authorization in respect of a specified location for a period of up to 30 days,  or

(c) suspend the person's dealer's permit or retail authorization for a period of 30 days if

(i) the person sells tobacco from a location where another person previously sold tobacco,

(ii) the other person's dealer's permit or retail authorization was suspended or cancelled, and

(iii) there is evidence satisfactory to the director that the person referred to in subparagraph (i) is not at arm's length from the person referred to in subparagraph (ii).

(2.1) If a person refuses or neglects to comply with a requirement of the director to deposit a bond under section 37, the director may, without advance notice to the person,

(a) suspend the person's dealer's permit or the person's retail authorization for a period of up to 30 days, or

(b) suspend the person's dealer's permit or the person's retail authorization in respect of a specified location for a period of up to 30 days.

(3) If satisfied that a person has not complied with this Act or the regulations, the director may

(a) cancel the person's dealer's permit or the person's retail authorization,

(b) cancel the person's dealer's permit or the person's retail authorization in respect of a specified location, or

(c) cancel the person's dealer's permit or retail authorization if

(i) the person sells tobacco from a location where another person previously sold tobacco,

(ii) the other person's dealer's permit or retail authorization was suspended or cancelled, and

(iii) there is evidence satisfactory to the director that the person referred to in subparagraph (i) is not at arm's length from the person referred to in subparagraph (ii).

(3.1) If a person refuses or neglects to comply with a requirement of the director to deposit a bond under section 37, the director may

(a) cancel the person's dealer's permit or the person's retail authorization, or

(b) cancel the person's dealer's permit or the person's retail authorization in respect of a specified location.

(4) Before exercising the power under subsection (3) or (3.1), the director must

(a) deliver written notice of the proposed cancellation and the reasons for it to the person, and

(b) give the person an opportunity to show why the dealer's permit or retail authorization should not be cancelled under subsection (3) or (3.1), as the case may be.

(4.1) The director must cancel a person's dealer's permit in prescribed circumstances.

(4.2) The director

(a) may cancel a person's dealer's permit under subsection (4.1) without advance notice to the person, and

(b) must provide written reasons to the person whose dealer's permit has been cancelled under subsection (4.1).

(4.3) The director may cancel a person's dealer's permit or a person's retail authorization in prescribed circumstances.

(4.4) Before exercising the power under subsection (4.3), the director must

(a) deliver written notice of the proposed cancellation and the reasons for it to the person, and

(b) give the person an opportunity to show why the dealer's permit or retail authorization should not be cancelled under that subsection.

(5) A person who has been refused a dealer's permit, or whose permit or retail authorization has been suspended or cancelled, may appeal the director's decision in accordance with section 23.

(6) Subsection (5) does not apply to a person whose dealer's permit has been cancelled under subsection (4.1).

Limits on tobacco purchased for resale

8   (1) If, by an enactment of British Columbia or Canada, tobacco is exempted from tax imposed under this Act, the director may, subject to the regulations, set a limit on the quantity of that tobacco that may be purchased for resale by any dealer.

(2) The director may, under subsection (1), set limits that differ for different types of tobacco or different dealers or classes of dealers.

Suspension under the Tobacco and Vapour Products Control Act

9   (1) On receiving, under section 10.2 of the Tobacco and Vapour Products Control Act, a copy of a prohibition order made in relation to tobacco, the director must, if a person has a dealer's permit or retail authorization applicable to a location specified in the order, suspend the permit or authorization for the location and period specified in the order.

(2) A suspension under this section may be made without advance notice to a dealer.

Certificate required for bulk transaction

10   (1) In this section:

"bulk transaction" means either of the following:

(a) a disposition of substantially all of the inventory of tobacco in British Columbia of a dealer's business;

(b) a disposition of an interest in a dealer's business carried on in British Columbia;

"dealer's business", in relation to a bulk transaction made, or proposed to be made, by a dealer, means the dealer's business referred to in paragraph (a) or (b), as the case may be, of the definition of "bulk transaction".

(2) If a person purchases tobacco or an interest in a business from a dealer through a bulk transaction without obtaining from the dealer a duplicate copy of the certificate obtained under subsection (3), the person must pay to the government an amount equal to the total of all amounts owing under this Act, on the date of the bulk transaction, by the dealer in respect of the dealer's business.

(3) On application in a form and manner specified by the director, the director may issue a certificate in duplicate to a dealer in respect of a proposed bulk transaction if all amounts owing under this Act by the dealer in respect of the dealer's business have been paid.

(4) An amount payable under subsection (2) in respect of a bulk transaction must be paid on or before the last day of the month after the month in which the bulk transaction occurred.

Security

11   (1) A wholesale dealer must, in respect of tobacco brought or sent into British Columbia by the wholesale dealer, or delivered to the wholesale dealer in British Columbia, pay, as security to the director, within the time required by the director, an amount equal to the tax that would be collectable if that tobacco were sold to a consumer in British Columbia.

(2) On application by a wholesale dealer, the director may, in writing and on conditions the director considers appropriate, exempt the wholesale dealer from the requirements of subsection (1) if the wholesale dealer satisfies the director that the tobacco in respect of which the security is payable will not be sold at a taxable retail sale in British Columbia.

(3) The director must refund to the wholesale dealer security paid under subsection (1) if the director is satisfied that the tobacco in respect of which the security was paid

(a) was not sold and will not be sold to a consumer, or

(b) was sold by the wholesale dealer to a person who holds a dealer's permit authorizing the person to sell tobacco at wholesale.

(4) Subject to subsection (5), an amount that is paid by a wholesale dealer as security under subsection (1) may, unless the amount is refunded under subsection (3) or section 16, be retained by the government in satisfaction of the wholesale dealer's obligation to collect and remit the tax imposed by this Act on a consumer of the tobacco.

(5) If some or all of the tobacco in respect of which a wholesale dealer has paid security to the director under this section is in the possession of the wholesale dealer at the time that a change in the rate of tax payable by a consumer of that tobacco takes effect, the wholesale dealer must provide to the director an inventory of that tobacco and

(a) must, if the rate of tax increases, pay, as security to the director, within the time required by the director, an amount equal to the difference between

(i) the amount of tax that would be collectable if that tobacco were sold to a consumer, and

(ii) the amount paid by the wholesale dealer as security in respect of that tobacco, or

(b) may, if the rate of tax decreases, apply to the director for a refund in an amount equal to the difference between the amount referred to in paragraph (a) (ii) and the amount referred to in paragraph (a) (i).

(6) On application under subsection (5) (b) by a wholesale dealer, the director must pay to the wholesale dealer an amount equal to the difference between the amount referred to in subsection (5) (a) (ii) and the amount referred to in subsection (5) (a) (i).

Security to wholesale dealer

12   (1) A retail dealer must, in respect of tobacco acquired by that retail dealer from a person who holds a dealer's permit authorizing the person to sell tobacco at wholesale, pay, as security to that person, an amount equal to the tax that would be collectable if that tobacco were sold to a consumer in British Columbia.

(2) A wholesale dealer who, in respect of tobacco, has paid an amount as security under section 11 (1) may retain any amount received under subsection (1) of this section instead of collecting the tax imposed on the consumer in respect of that tobacco.

(3) If, under subsection (1), a retail dealer pays an amount as security in respect of tobacco, and that amount is retained under subsection (2), subject to the regulations, the retail dealer is deemed to have satisfied the retail dealer's obligation to remit the tax that is imposed by this Act on the consumer of the tobacco.

(4) The director must pay to a retail dealer an amount equal to the security paid by that retail dealer under subsection (1) if the director is satisfied that

(a) the tobacco in respect of which security was paid was not sold and will not be sold to a consumer in British Columbia, and

(b) the retail dealer has not received and will not receive a refund of the security from the wholesale dealer to whom it was paid.

(5) If a refund in respect of tobacco is paid to a retail dealer by the director under subsection (4), the wholesale dealer who sold the tobacco to the retail dealer must not grant a refund to the retail dealer or seek a refund from the government in respect of that tobacco.

(6) Subsection (1) does not apply in respect of tobacco purchased by a retail dealer for resale to a consumer who, by an enactment of British Columbia or Canada, is exempt from the tax imposed by this Act.

Demand for information

12.1   (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

(a) a return,

(b) any information or additional information,

(c) the production of any records, or

(d) a written statement.

(2) A demand notice under subsection (1)

(a) must be delivered to the person by personal service, registered mail, electronic mail or fax,

(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 delivered under this section must comply with the notice within the time specified in the notice.

(4) Under this Act, 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.

Service of notices

12.2   (1) If service of a notice or other document by the director is required or authorized under this Act, the notice or document is conclusively deemed to have been served if

(a) served on the person,

(b) sent by registered mail to the last known address of the person according to the records of the director, or

(c) sent by electronic mail or fax to the last known electronic mail address or fax number of the person according to the records of the director.

(2) If service of a notice or other document on the minister is required or authorized under this Act, the notice or document is conclusively deemed to have been served if delivered to the office of the deputy minister.

(3) If service under subsection (1) is by registered mail, electronic mail or fax, the notice or document is conclusively deemed to be served when sent.

(4) If a person carries on business under a name or style other than the person's own name, the notice or document may be addressed to the name or style under which the person carries on business and, in the case of personal service, is deemed to have been validly served if the notice or document was left with an adult employed at the place of business of the person.

(5) If persons carry on business in partnership, the notice or document may be addressed to the partnership name and, in the case of personal service, is deemed to have been validly served if the notice or document was served on one of the partners or left with an adult employed at the place of business of the partnership.

(6) In the case of personal service, a notice or document is deemed to have been validly served

(a) on a corporation, if it was delivered to any board member, senior officer, liquidator or receiver manager of the corporation, and

(b) on an extraprovincial corporation, if it was delivered to a person referred to in paragraph (a) or to an attorney for the extraprovincial corporation.

(7) Proof of the receipt by a person of any notice or document may be established in any court by showing that the notice or document was served or sent in a manner provided for in this section, and the burden of proof is on the person seeking to establish the fact that the notice or document was not received by that person.

(8) In a prosecution or any proceeding for any matter arising under this Act, the facts necessary to establish compliance on the part of the director with this section may be sufficiently proved in any court by the production of an affidavit of the director setting out the facts.

Delegation

12.3   (1) The director may, in writing, delegate any of the director's powers or duties under this Act.

(2) A delegation under subsection (1) may be to a named person or to a class of persons.

Confidentiality

13   A person who has custody of or control over information or records under this Act must not disclose the information or records to any other person except

(a) in the course of administering or enforcing this or another taxation Act or a band bylaw,

(b) in court proceedings relating to this or another taxation Act or a band bylaw,

(c) as provided in, or ordered under, section 239 or 242 of the Family Law Act or section 8.2 or 9 of the Family Maintenance Enforcement Act,

(d) under an agreement that

(i) is between the government and another government or a band,

(ii) relates to the administration or enforcement of taxation enactments, and

(iii) provides for the disclosure of information and records to and the exchange of similar information and records with that other government or band,

(e) for the purpose of the compilation of statistical information by the government or the government of Canada, or

(f) under an agreement with a public body as defined in the Freedom of Information and Protection of Privacy Act for the purposes of administering or enforcing the Tobacco and Vapour Products Control Act.

Collector deemed to be under Financial Administration Act

14   A person who collects any tax imposed under this Act is deemed to act subject to Part 10 of the Financial Administration Act but, despite any other Act, a person acting under this section is not made ineligible as a member of the Legislative Assembly.

Allowance for collectors

15   (1) Subject to the regulations, a collector who pays an amount of security as required under this Act in relation to a reporting period may deduct from the amount payable and retain a prescribed allowance for the reporting period.

(2) Despite any other Act, a person retaining an allowance under this section is not, by retaining the allowance, made ineligible as a member of the Legislative Assembly of British Columbia.

Refund or deduction for bad debts

16   (1) In this section:

"sale" means a sale referred to in subsection (2) (a);

"specified amount", in relation to a sale, means a portion, determined in the prescribed manner, of the amount remitted or paid to the government by the dealer in respect of taxes or security payable under this Act on the sale.

(2) This section applies to a dealer in respect of a sale if

(a) the dealer sells tobacco,

(b) the dealer, in accordance with this Act,

(i) remits the tax required under this Act to be collected for the sale, or

(ii) pays or has paid the security required under this Act to be paid in respect of the tobacco,

(c) the person buying the tobacco does not pay to the dealer the full amount of the consideration in respect of the sale, and

(d) within 4 years of the date on which the tax or security referred to in paragraph (b) (i) or (ii), as the case may be, was remitted or paid, the dealer writes off as unrealizable or uncollectable the amount owing by the person who bought the tobacco.

(3) If a dealer to whom this section applies in respect of a sale is a collector, the dealer may deduct the specified amount from the amount of taxes or security that the dealer is required to remit or pay under this Act in respect of the reporting period in which the dealer writes off the amount owing referred to in subsection (2) (d).

(4) A deduction referred to in subsection (3) must be made in a form specified by the director.

(5) If the director is satisfied that

(a) this section applies to a dealer in respect of a sale, and

(b) if the dealer is a collector, the dealer has not made a deduction under subsection (3) in respect of the sale,

the director must refund from the consolidated revenue fund the specified amount to the dealer.

(6) If a dealer who is a collector has made a deduction under subsection (3) or obtained a refund under subsection (5) and recovers some or all of the amount referred to in subsection (2) (d) with respect to which the refund was paid or the deduction was made, the dealer must add an amount, determined in the prescribed manner, to the tax to be remitted or security to be paid by the dealer under this Act in respect of the reporting period in which the recovery was made.

(7) If a dealer, other than a dealer referred to in subsection (6), who obtained a refund under subsection (5) recovers some or all of the amount referred to in subsection (2) (d) with respect to which the refund was paid, the dealer must pay to the government an amount, determined in the prescribed manner, on or before the last day of the month following the month in which the recovery was made.

Refund where no obligation to pay or collect

17   (1) If the director is satisfied that an amount has been paid as tax or security in circumstances where there was no legal obligation to pay the amount as tax or security, the director must refund from the consolidated revenue fund that amount to the person entitled to it.

(2) If the director is satisfied that a collector has remitted to the director an amount as collected taxes that the collector neither collected nor was required to collect under this Act, the director must refund the amount to the collector from the consolidated revenue fund.

Refunds when joint and several liability

17.1   (1) Despite section 17 (2), if the director is satisfied that the total of the amount paid by one or more board members who are jointly and severally liable with the corporation under section 28.1 (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 a part of the amount for which one or more board members and the corporation were jointly and severally liable under section 28.1 (1), refund to the board member the amount of the excess up to the amount paid by the board member;

(b) if two or more board members paid the amount or a part of the amount for which the board members and the corporation were jointly and severally liable under section 28.1 (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 28.1 (1) for the applicable period of the refund.

(3) A refund may be paid under subsection (1) only to a board member or corporation who has applied for a refund.

Claim for refund

18   (1) To claim a refund under this Act, other than a refund referred to in section 43 (2) (b), a person must submit to the director

(a) subject to the regulations, a written application in the form and manner satisfactory to the director and signed by the person who paid or remitted the amount claimed, and

(b) any information or document required by the director.

(2) For the purposes of subsection (1) (a), if the person who paid or remitted the amount claimed is a corporation, the application must be signed by a member of the board of directors or an authorized employee of the corporation.

(3) Despite anything in this Act or the regulations, the director is not required to pay a refund to a person who claims a refund under subsection (1) unless the requirements of subsections (1) and (2) are met.

Refund limits

19   (1) Despite section 16 of the Financial Administration Act,

(a) a refund of less than $10 must not be made,

(b) a refund, other than a refund referred to in paragraph (c), must not be made on a claim for a refund that is received by the director more than 4 years after the date on which the amount claimed was paid or remitted, and

(c) a refund to a person under section 16 (5) must not be made on a claim for a refund that is received by the director more than 4 years after the date on which the person who sold the tobacco referred to in section 16 writes off as unrealizable or uncollectable the amount owing by the person who bought that tobacco.

(2) Despite the Limitation Act, an action for a refund must not be brought more than 4 years after the date on which the amount claimed was paid or remitted.

Repealed

20   [Repealed 2008-11-22.]

Inspection and audit powers

21   (1) [Repealed 2015-8-105.]

(2) Except as limited by subsection (4), the director may enter at any reasonable time the business premises occupied by a person, or the premises where the records of the person are kept, in order to

(a) determine whether this Act and the regulations are being or have been complied with,

(b) inspect, audit and examine books of account or other records, or

(c) inspect and ascertain the quantities of tobacco on hand, used or sold by the person.

(3) A person occupying premises referred to in subsection (2) must

(a) produce all books of account or other records as may be required by the director, and

(b) answer all questions of the director regarding the matters referred to in that subsection.

(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 issued 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 (c).

(6) When required by the director, a dealer must provide to the director all books of account and other records that the director considers necessary to determine whether this Act and the regulations are being or have been complied with.

(7) A person must not

(a) hinder, molest or interfere with 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.

Assessments and penalties

22   (1) Subject to subsections (2.3) and (5.2), if, on the basis of an inspection, audit or examination under section 21 or on the basis of other information, it appears that a person has not complied with this Act or the regulations, the director must calculate the tax collected or due in a manner and by a procedure the director considers adequate and expedient, and the director must assess the person for the amount of tax calculated.

(2) If it appears that an amount of tax should have been but was not paid by a consumer, the director may assess the consumer for the amount of tax payable plus interest calculated at the rate and in the manner prescribed.

(2.01) If a consumer purchases tobacco from a retail dealer who is not authorized under this Act to sell tobacco at retail and the tax payable in respect of that tobacco is not remitted to the director, the director may assess either

(a) the consumer for the amount of tax payable in respect of that tobacco, or

(b) the retail dealer for the amount of tax collected in respect of that tobacco,

but not both the consumer and the retail dealer.

(2.02) If, as a result of an inspection, audit or examination or on the basis of other information, it appears that a person has deducted an amount under section 16 (3) that was in excess of the amount that the person was entitled to deduct under that section, the director must make an assessment against the person in an amount equal to the excess amount deducted plus interest calculated at the rate and in the manner prescribed.

(2.1) If, on the basis of an inspection, audit or examination under section 21 or from other information available to the director, it appears that a person has received a refund of an amount under this Act that was in excess of the refund amount that was due to the person, the director must make an assessment against the person in an amount equal to the excess amount refunded plus interest calculated at the rate and in the manner prescribed.

(2.2) If, as a result of an inspection, audit or examination or on the basis of other information, it appears that a wholesale dealer who does not hold a dealer's permit to sell tobacco at wholesale has sold tobacco to another dealer, the director may impose a penalty on the wholesale dealer equal to the amount of tax that would be collectable if that tobacco were sold to a consumer in British Columbia, plus interest calculated at the rate and in the manner prescribed.

(2.3) If the director imposes a penalty on a wholesale dealer under subsection (2.2), that wholesale dealer must not be assessed under subsection (1) in respect of the same tobacco that gave rise to the imposition of the penalty under subsection (2.2). 

(3) In making an assessment under this section, the director must not consider or include a period greater than 4 years before the date of the first notice of assessment.

(4) Despite subsection (3), in making an assessment under this section, the director may consider and include any period, if the assessment relates to a contravention, of this Act or the regulations, involving wilful default or fraud.

(5) Subject to subsection (5.2), if, as a result of an inspection, audit or examination under section 21 or on the basis of other information, it appears that an amount of tax should have been but was not collected, the director must impose a penalty on the dealer who failed to collect the tax in an amount equal to the total amount of tax that should have been collected plus interest calculated at the rate and in the manner prescribed.

(5.1) If, as a result of an inspection, audit or examination or on the basis of other information under section 21, it appears that an amount of security should have been but was not paid, the director must impose a penalty on the dealer who failed to pay the security in an amount equal to the total amount of security that should have been paid plus interest calculated at the rate and in the manner prescribed.

(5.2) If the director imposes a penalty on a dealer under subsection (5.1), the dealer must not be assessed under subsection (1), and a penalty must not be imposed on that dealer under subsection (5), in respect of the same tobacco that gave rise to the imposition of the penalty under subsection (5.1).

(5.3) 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 10 (2), the director must make an assessment against the person in an amount equal to the amount required to be paid under that section.

(5.4) 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 32.2 (4), the director must make an assessment against the person in an amount equal to the amount required to be paid under that section.

(6) In imposing a penalty under this section, the director must not consider a period greater than 3 years.

(6.1) Despite subsection (3) or (6), the director may enter into a written agreement with a person in which the person waives subsection (3) or (6), or both, and allows the director, in making an assessment or imposing a penalty, to consider and include any period specified in the agreement.

(7) [Repealed 2003-23-88.]

(7.1) Evidence that a dealer has acquired tobacco is proof, in the absence of evidence to the contrary, that the dealer has sold that tobacco in British Columbia and has collected an amount at least equal to the tax payable by the consumer in respect of that tobacco, and the onus of proving otherwise is on the dealer.

(8) [Repealed 2003-23-88.]

(9) A person who has paid an amount imposed under subsection (5) may, in a court of competent jurisdiction, sue the person who was liable to pay the tax in order to recover the amount imposed under subsection (5), and any amounts recovered in the action may be retained by the plaintiff as compensation for the amount paid under subsection (5).

Assessment against board member

22.1   (1) If the director decides that a board member is jointly and severally liable for an amount under section 28.1 (1), the director may assess the board member for the amount assessed under section 22 against the corporation for the corporation's failure to collect or remit taxes or to pay security or both as required during the term of the director, any related penalty and any interest on that amount and the penalty.

(2) The director must not make an assessment under subsection (1) in respect of the liability of a board member under section 28.1 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.

Notice of assessment

22.2   (1) Subject to subsection (3), the director must issue a notice of assessment to the person liable to pay an amount assessed or imposed if the director

(a) makes an assessment under section 22 or 22.1, or

(b) imposes a penalty under section 22, 22.1 or 35.

(2) If the director assesses interest under section 22, 22.1 or 35, the director may issue a notice of assessment to the person liable to pay the amount of interest assessed.

(3) In addition to, or as an alternative to, issuing a notice of assessment under subsection (1) or (2), the director may issue 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 issued 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.

Right of appeal

23   (1) If a person disputes

(a) an assessment made under section 22 or 22.1,

(b) a penalty or interest imposed under sections 22, 22.1 or 35,

(b.1) a determination by the director of the wholesale price of a cigar under section 2 (1.3),

(c) a decision of the director under section 6 (5) or (6) to refuse to issue a dealer's permit,

(d) a decision of the director under section 7 (2), (2.1), (3), (3.1) or (4.3) to suspend or cancel, or to suspend or cancel in respect of a specified location, the person's dealer's permit or the person's retail authorization,

(e) a decision of the director to refuse an exemption under section 11 (2),

(f) a decision of the director respecting a refund under section 11 (3), 12 (4), 16, 17 or 17.1,

(g) a limit set by the director under section 8, or

(h) a decision of the director under section 28.2 (2),

the person may personally or by the person's agent, within 90 days after the date on the notice of the assessment, penalty, interest or decision, serve notice of appeal on the minister.

(2) If a person disputes a seizure made under section 51, the person may personally or by the person's agent, within 90 days after the date identified as the date of the seizure in the receipt provided under section 51 (4), serve notice of appeal on the minister.

(3) The notice of appeal must be in writing and must be addressed to the minister at Victoria.

(4) The notice must set out clearly the reasons for the appeal and all facts relative to it.

(5) On receiving the notice of appeal, the minister must

(a) consider the matter,

(b) affirm, amend or change the assessment, decision, estimate, interest charge, penalty or the nature of the assessment or, in the case of a seizure referred to in subsection (2), determine whether the person from whom the tobacco was seized was entitled to possess that tobacco, and

(c) promptly notify the appellant in writing of the result of the appeal.

Appeal to court

24   (1) A decision of the minister under section 23 (5) may be appealed to the Supreme Court by way of a petition proceeding.

(1.1) An appeal under this section is a new hearing that is not limited to the evidence and issues that were before the minister.

(2) The Supreme Court Civil Rules relating to petition proceedings apply to appeals under this section, but Rule 18-3 of those rules does not apply.

(3) A petition must be filed in the court registry within 90 days after the date on the minister's notification of decision.

(4) Within 14 days after the filing of the petition under subsection (3), the petition must be served on the government in accordance with section 8 of the Crown Proceeding Act and the government must be designated "Her Majesty the Queen in right of the Province of British Columbia".

(5) The court may dismiss the appeal, allow the appeal, vary the decision from which the appeal is made or refer the decision back to the director for reconsideration.

(6) An appeal lies from a decision of the court to the Court of Appeal with leave of a justice of the Court of Appeal.

Irregularities do not affect validity

25   An assessment made or penalty imposed by the director under section 22 must not be varied or disallowed because of any irregularity, informality, omission or error on the part of any person in the observation of any directory provision up to the date of the issuing of the notice of assessment or imposition of a penalty under section 22.

Assessments and penalties

25.1   (1) Evidence that an assessment has been made or a penalty has been imposed under this Act is proof, in the absence of evidence to the contrary, that the amount stated in the assessment or imposed as a penalty is due and owing, and the onus of proving otherwise is on the person assessed or penalized.

(2) 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.

Effects of pending appeal and of appeal changing decision

26   (1) Neither the giving of a notice of appeal by a person, nor a delay in the hearing of the appeal

(a) affects the date of payment, the interest or penalties or any liability for payment under this Act in respect of the amount assessed or imposed that is the subject matter of the appeal, or

(b) delays the collection of the amount assessed or imposed.

(2) If a decision of the director or the minister is set aside or the amount of an assessment or penalty is reduced on appeal, the director must refund from the consolidated revenue fund

(a) the amount or excess amount paid, and

(b) any additional interest or penalty imposed and paid.

(3) If the amount of an assessment or penalty is increased on appeal, the appellant must pay to the government

(a) the additional amount owing to the government under this Act, and

(b) any additional interest payable on the additional amount owing to the government under this Act.

Consumer liable for tax

27   (1) The consumer is and remains liable for the tax imposed under this Act until the tax has been paid to a dealer.

(2) If a dealer fails to collect the tax imposed under this Act, the dealer must immediately notify the director.

(3) The consumer may be sued for the amount of the tax imposed under this Act in any court of competent jurisdiction, but action against the consumer under this section does not affect the liability of the dealer under this Act for failure to collect the tax.

(4) Despite section 2 (7.1) and (11),

(a) a person is not authorized as agent for the minister to collect from a consumer money paid as or on account of tax unless that person is authorized under this Act to sell tobacco at retail, and

(b) a consumer who has purchased tobacco from a person referred to in paragraph (a) must immediately report the purchase in writing to the minister and remit to the minister the tax imposed by this Act in respect of that purchase.

Liability for amounts collected

28   (1) A person who collects an amount of tax, or an amount as if it were tax under this Act, is deemed to hold the amount in trust for the government and for the payment of the amount to the government in the manner and at the time required under this Act.

(2) [Repealed 2015-8-111.]

Board member's liability

28.1   (1) Subject to this section, if a corporation has failed to collect or remit taxes or to pay an amount of security as required under this Act, a board member of that corporation is jointly and severally liable with the corporation to pay an amount equal to

(a) the taxes that the corporation failed to collect or remit during the term of the board member, any related penalty and any interest on that amount and the penalty, and

(b) the security that the corporation failed to pay 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 31 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 collect or remit taxes or to pay security as required under this Act.

Deemed board member

28.2   (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 to confirm or rebut that belief.

(2) Subject to subsection (3), the director may decide 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 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 section confirm 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 decide under subsection (2) (b) that a person performed some or all of the functions of a member of the board of directors of a corporation if the decision 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) If the director decides 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) Immediately after the director makes a decision under subsection (2), the director must notify in writing the person to whom the decision relates and the corporation of this decision.

Liability of other persons

28.3   (1) If more than one person is subject to tax under the same provision of this Act in respect of the same tobacco, each person is jointly and severally liable for the tax.

(2) If more than one person is required under the same provision of this Act to pay security to the director in respect of the same tobacco, each person is jointly and severally liable to pay the security.

Notice to taxpayer before taking proceedings

29   (1) Before taking proceedings for the recovery of an amount owing 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 under this Act.

Court proceeding to recover amount owing

30   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

31   (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.

Attachment

32   (1) In this section, "taxpayer" includes a collector, a dealer and a board member who is jointly and severally liable with a corporation under section 28.1 (1).

(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 director 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, or make a payment in respect of a negotiable instrument issued by a taxpayer, the director may demand that that person pay to the director on account of the taxpayer's liability under this Act the money that would otherwise be so advanced or paid.

(3.1) A demand under this section may be served by

(a) personal service,

(b) registered mail, or

(c) electronic mail or fax.

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

(a) applies 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 director out of each payment of the amount stipulated by the director in the demand.

(5) 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 his or her capacity as a trustee.

(6) A demand under this section continues in effect until

(a) the demand is satisfied, or

(b) 90 days after the demand is served,

whichever is earlier.

(7) Despite subsection (6), if a demand is made in respect of a periodic payment referred to in subsection (4), 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 on the expiration of that period.

(7.1) 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 the 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.

(8) A person who fails to comply with a demand under subsection (2) or (4) is liable to pay to the government an amount equal to the amount that the person was required under subsection (2) or (4), as the case may be, to pay to the director.

(9) 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 aggregate of the money advanced or paid, and

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

(10) The receipt of the director for money paid under this section is a good and sufficient discharge of the original liability to the extent of the payment.

(11) Money paid by any person to the director in compliance with a demand under this section is deemed to have been paid by that person to the taxpayer.

(12) and (13) [Repealed 2015-8-116.]

Lien

32.1   (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" means a corporation that is

(a) associated with another corporation within the meaning of section 256 of the Income Tax Act (Canada), or

(b) determined under subsection (15) of this section 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;

"related individual" has the same meaning as in the Property Transfer Tax 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) 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

(i) taxes that were required to be collected before registration,

(ii) taxes that were collected but not remitted before registration, or

(iii) security that was required to be paid before registration,

the amount of those taxes remaining uncollected or unremitted or security remaining unpaid, any related penalty and any interest on that amount and the penalty;

(b) any amount, other than an amount referred to in paragraph (a), 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) (b), 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) (b), 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 sum of the amount of

(c) taxes remaining uncollected or unremitted, or both, that were required to be collected or were collected by the person for the 6 calendar 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, and

(d) security remaining unpaid that was required to be paid by the person for the 6 calendar 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.

(9) 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.

(10) A certificate of lien registered under subsection (8) and a financing change statement registered under subsection (9) must contain a revised statement of the amount owing.

(11) 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).

(12) On registration of a financing change statement against the personal property of a person under subsection (9), 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 (9).

(13) Despite section 13, 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.

(14) 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.

(15) 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 (14) 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.

(16) 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.

(17) The director may seize personal property against which a lien is registered under subsection (16) 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 (16) (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 23 (1), the date on which the minister upholds the determination under that appeal.

(18) 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 (16) (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.

(19) The release of the lien under subsection (18) (a) or the release of the lien and payment of the applicable net sale proceeds under subsection (18) (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 (15), 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

32.2   (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, is required to collect or remit tax or is required to pay security 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 32.1 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.

Application for injunction

33   If a dealer sells or offers to sell tobacco in British Columbia and is not authorized under this Act to do so, the minister may apply to the Supreme Court for an injunction ordering the dealer to cease selling or offering to sell tobacco until the dealer's obligations under this Act are fulfilled and the dealer pays the costs of the application.

Alternative remedies

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

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

Penalty and interest

35   (1) In addition to any other penalty, the director may do any of the following:

(a) if the director is satisfied that a person who collected tax or received security in respect of tobacco wilfully failed to remit the tax or pay security in respect of the tobacco to the government as required under this Act, impose on the person a penalty equal to 100% of the amount not remitted or paid;

(b) in any case other than a case referred to in paragraph (a), if the director is satisfied that a person evaded the payment of tax or security to the government as required under this Act by wilfully making a false or deceptive statement or by wilful default or fraud, impose on the person a penalty equal to 25% of the amount evaded;

(c) in any case other than a case referred to in paragraph (a) or (b), if the director is satisfied that a person failed to collect any tax or remit or pay any tax or security to the government as required under this Act, impose on the person a penalty equal to 10% of the amount not collected, remitted or paid.

(2) The director may, at any time, assess interest, calculated at the rate and in the manner prescribed, on an amount owing to the government under this Act.

(3) [Repealed 2015-8-119.]

Limitation period

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

(a) a proceeding for the recovery of an amount owing to the government under section 30,

(b) the filing of a certificate under section 31,

(c) the making of a demand under section 32, and

(d) the registration or enforcement of a lien under section 32.1.

(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.

Collection bond

37   (1) In this section:

"applicant" means either of the following:

(a) a person who has applied for a dealer's permit under section 6;

(b) a person who has applied for a retail authorization in accordance with the regulations;

"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 collected under this Act by the person in a month in relation to tobacco for which the person would not be required to pay security,

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

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

(2) The director may require an applicant or a dealer to deposit with the director a bond, by way of cash or other security, satisfactory to the director.

(3) Subject to subsection (5), the amount of the bond is to be determined by the director, but the amount must not be greater than the maximum bond amount.

(4) Subject to subsection (5), if there is a change in circumstances after a bond is provided under subsection (2), the director may vary the amount of the bond required, but the amount must not be greater than the maximum bond amount.

(5) If a bond is required as a condition of holding a dealer's permit or a retail authorization, the amount of the bond determined by the director under this section must be at least $5 000.

(6) If a person who has deposited a bond under this section fails to collect or remit tax, pay tax or pay security 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 of tax or security that should have been collected, remitted or paid by the person, to any related penalty and to any interest due on that amount and the penalty.

(7) 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 dealer, and

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

Liability of corporation officers

38   If a corporation is guilty of an offence against this Act and if an officer, director, employee or agent of the corporation directed, authorized, assented to, acquiesced or participated in the commission of the offence, that person is a party to and guilty of the offence, but that liability does not affect the liability of the corporation for the penalties provided for that offence.

Offences

39   (1) Subject to subsections (2), (3) and (4), a person who contravenes section 27, 49 or 58 (1), (2), (3), (4) or (5) commits an offence and is liable

(a) on a first conviction, to a fine of at least $500 and not more than $1 000 or to a term of imprisonment of at least one month and not more than 3 months, or to both fine and imprisonment, and

(b) on a subsequent conviction for the same or another provision of this Act, to a fine of at least $500 and not more than $2 000 or to a term of imprisonment of at least 3 months and not more than 6 months, or to both fine and imprisonment.

(2) A dealer who fails to collect or remit tax, or pay security to the government, as required under this Act commits an offence and is liable on conviction to a fine equal to the amount of the tax that should have been collected or remitted or the amount of security that should have been paid, including any penalties and interest, as determined under subsection (10) and, in addition, is liable on conviction to

(a) a fine of at least $200 and not more than $2 000,

(b) a term of imprisonment of at least 3 months and not more than 6 months, or

(c) both the fine and imprisonment set out in paragraphs (a) and (b).

(3) A retail dealer commits an offence if the retail dealer

(a) sells tobacco that he or she caused to be brought into British Columbia, and

(b) fails

(i) to report to the minister as required by the regulations within the prescribed time, or

(ii) to remit the tax at the time and in the manner prescribed.

(4) A person who does any of the following commits an offence:

(a) contravenes section 5;

(b) makes or participates in, assents to or acquiesces in the making of a false or deceptive statement in a return, certificate or form required to be made or filed under this Act;

(c) in order to evade payment of an amount to be paid or remitted under this Act, destroys, alters, mutilates, conceals or otherwise disposes of a record or book of accounts of a dealer;

(d) in a record or book of accounts of a dealer or consumer, 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;

(d.1) refuses to produce records or books of account or hinders or molests or interferes with an inspection, audit or examination or prevents or attempts to prevent a person from carrying out an inspection, audit or examination under this Act;

(e) wilfully, in any manner, fails to comply with this Act or the regulations;

(f) wilfully, in any manner, evades or attempts to evade compliance with this Act or the regulations, or remittance or payment of taxes or payment of security required under this Act;

(g) conspires with any person to do anything described in paragraphs (b) to (f).

(5) A person who commits an offence under subsection (3) or (4) is liable

(a) to a fine of not more than $25 000 or to imprisonment for not more than 2 years or to both fine and imprisonment, and

(b) in addition, to a fine equal to the amount of any tax or security not collected, remitted or paid, including any penalties and interest, as determined under subsection (10).

(6) A person who contravenes section 13 commits an offence and is liable to a fine of not more than $2 000.

(7) A person who unlawfully possesses or keeps tobacco, or possesses or keeps tobacco for an unlawful purpose, in contravention of this Act or the regulations, commits an offence and is liable

(a) on a first conviction, if the quantity of tobacco is 10 000 grams of tobacco or less, to

(i) forfeiture of the tobacco to the government, and

(ii) a fine equal to 3 times the tax that would have been due on the retail sale of the tobacco,

(b) on a first conviction, if the quantity of tobacco is greater than 10 000 grams of tobacco, to

(i) forfeiture of the tobacco to the government,

(ii) a fine equal to 3 times the tax that would have been due on the retail sale of the tobacco, and

(iii) a fine of at least $2 500 and not more than $25 000 or to imprisonment for not more than 2 years, or to both fine and imprisonment, or

(c) on a subsequent conviction for the same offence under this subsection, to

(i) forfeiture of the tobacco to the government,

(ii) a fine equal to 3 times the tax that would have been due on the retail sale of the tobacco, and

(iii) a fine of at least $10 000 and not more than $50 000 or to imprisonment for not more than 2 years, or to both fine and imprisonment.

(8) For the purpose of subsection (7), if one of 2 or more persons, with the knowledge and acquiescence of the rest, has tobacco in the person's possession, the tobacco is, in the absence of evidence to the contrary, considered to be in the possession of each and all of them.

(9) A person who contravenes section 58 (7) commits an offence and is liable to a fine of not more than $50 000 or to a term of imprisonment of not more than 2 years or to both fine and imprisonment.

(10) The director must determine the amount of the tax or security referred to in subsections (2) and (5) (b) from information available to the director, and must issue a certificate as to the amount.

(11) In any prosecution under this section, a certificate signed or purported to be signed by the director stating the amount of tax or security that should have been collected, remitted or paid is evidence of the amount of the tax or security that should have been collected, remitted or paid, and conclusive evidence of the authority of the person giving or making the certificate without proof of appointment or signature.

(12) Any information or complaint in respect of an offence under this Act may be for one or more than one offence, 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 related to 2 or more offences.

(12.1) A penalty under this section is in addition to any other penalty under this Act.

(13) Nothing in this section, or the enforcement of a penalty under this section, suspends or affects any remedy for the recovery of any tax or amount payable under this Act.

(14) Fines collected under this Act must be paid to the minister on behalf of the government and must be paid into the consolidated revenue fund.

Prosecutions

40   (1) In a prosecution for failure to collect, remit or pay an amount under this Act, the onus is on the accused to prove that the accused collected the amount or remitted or paid the amount.

(2) In a prosecution brought against a person who is a dealer, the person's application form for a dealer's permit is evidence that the person charged is a dealer, and the person's completed return form is evidence that the person charged collected tax.

(3) In a prosecution under section 39 (7) and for the purposes of sections 47 and 48, the possession or keeping of more than 1 000 grams of tobacco, by a person other than a dealer who is authorized to sell tobacco by a dealer's permit or by regulation is, in the absence of evidence to the contrary, prima facie evidence that the person unlawfully possesses or keeps tobacco, or possesses or keeps tobacco for an unlawful purpose.

(4) In a prosecution under section 39 (7) and for the purposes of sections 47 and 48, the possession or keeping of more than 1 000 grams of tobacco that does not bear the prescribed mark or stamp, is, in the absence of evidence to the contrary, prima facie evidence that the person unlawfully possesses or keeps tobacco, or possesses or keeps tobacco for an unlawful purpose.

(5) In a prosecution under this Act, a document purporting to be certified by the director to be a true copy of an agreement entered into under section 43.2 is proof of the agreement.

Section 5 of the Offence Act

41   Section 5 of the Offence Act does not apply to this Act or the regulations.

Limitation

42   Any information or complaint in respect of an offence against this Act must be laid or made within 6 years of the time when the matter of the information or complaint arose, except that in the case of fraud no limitation applies.

Agreements for collection of tax by customs officers and postal agents

43   (1) The minister, on behalf of the government, may enter into an agreement with the government of Canada respecting the administration and enforcement of this Act by customs officers and postal agents in relation to tobacco referred to in section 3.

(2) An agreement under subsection (1) may do the following:

(a) authorize payment from the consolidated revenue fund of a fee to be paid to or, despite section 14 (1) of the Financial Administration Act, retained by the government of Canada for its services under the agreement;

(b) authorize the government of Canada to make refunds to consumers of amounts considered by a customs officer or postal agent to be refundable under section 17 if the requirements of section 18 are met, which amount must then be offset by the government of Canada from tax collected under the agreement or repaid to the government of Canada from the consolidated revenue fund;

(c) authorize the government of Canada to enter into an agreement with the Canada Post Corporation respecting the administration and enforcement of this Act by postal agents.

(3) A customs officer or postal agent acting under an agreement under this section is an agent of the government for the purposes of this Act and sections 14, 28 to 31 and 32.1 do not apply to the customs officer or postal agent.

(4) An action or proceeding must not be brought against a customs officer or postal agent referred to in subsection (3) for anything done or omitted to be done in good faith by the customs officer or postal agent

(a) in the performance or intended performance of any duty under this Act or an agreement under this section, or

(b) in the exercise or intended exercise of any power under this Act or an agreement under this section.

(5) Subsection (4) does not absolve the government from vicarious liability because of an act or omission for which the government would have been liable had that subsection not been in force.

Band tax agreement

43.1   (1) In this section, "band tobacco tax" means a tax imposed by a bylaw passed by a band that is payable by a consumer of tobacco products who is exempt under the Indian Act (Canada) from paying the tax imposed by this Act.

(2) The minister may enter into a tax collection agreement on behalf of the government with a band that has imposed a band tobacco tax.

(3) An agreement under subsection (2) must include provision for the director, as agent for the band, to collect the band tobacco tax, and may include provision for a commission, fee or charge to be paid to the government for the services of the director.

(4) Despite the Financial Administration Act, band tobacco tax that is collected for a band by the director under an agreement entered into under subsection (2) must be paid into the consolidated revenue fund.

(5) The minister, out of the consolidated revenue fund,

(a) must pay to the band money that, under the tax collection agreement, is payable to the band,

(b) if required or permitted to do so under the tax collection agreement, may advance money to the band in anticipation of the collection of band tobacco tax under the agreement, and

(c) if required or permitted to do so under the tax collection agreement, may make payments to the band based on estimates of band tobacco tax collected.

Minister may enter into agreement

43.2   The minister, on behalf of the government, may enter into an agreement with the government of Canada or an agent of the government of Canada respecting the administration of a tobacco marking system.

Power to make regulations

44   (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:

(a) prescribing forms and records to be used or kept for the purpose of this Act or the regulations;

(b) prescribing the method of collection and remittance of the tax and of any payment of a security, and any other conditions or requirements affecting the collection and remittance, and prescribing different methods, conditions or requirements for different classes of persons;

(b.1) respecting the payment of additional security by a retail dealer or the payment of a refund of all or a portion of security paid by a retail dealer, in the event of a change in the rate of tax payable by a consumer of tobacco, including, without limitation, the following:

(i) requiring a retail dealer to provide to the director an inventory of any tobacco in the possession of the retail dealer at the time the change in the rate of tax payable takes effect;

(ii) requiring the payment of additional security by a retail dealer or permitting or requiring the payment of a refund of security paid by a retail dealer;

(iii) establishing circumstances in which additional security must be paid by a retail dealer or a refund of security paid by a retail dealer may or must be paid;

(iv) respecting the amount of the additional security to be paid by a retail dealer or the amount of a refund of security paid by a retail dealer and setting conditions of, or limitations on, the payment of additional security by a retail dealer or the payment of a refund of security paid by a retail dealer;

(v) in the case of a retail dealer who is required to pay additional security, respecting the deduction of an allowance from the amount payable by the retail dealer, including, without limitation, respecting the amount of an allowance and setting conditions of, or limitations on, the deduction of an allowance;

(c) for the purposes of section 15, respecting the amount of an allowance and setting conditions of, or limitations on, the deduction of an allowance;

(d) respecting agreements between the minister or the director and the persons who collect the tax imposed by this Act, and providing for their use;

(e) defining any word or expression used but not defined in this Act;

(f) exempting certain tobaccos, dealers or purchasers from all or any part of this Act or the regulations;

(g) respecting anything considered by the Lieutenant Governor in Council to be necessary or advisable respecting the limits set or that may be set by the director under section 8, including, without limitation, prescribing the factors that the director is to consider and the procedure that the director is to follow when setting limits under section 8;

(h) establishing classes of dealer's permits and prescribing different requirements, limits and conditions for each class of dealer's permits;

(i) prescribing classes of persons as persons authorized to sell tobacco at retail, subject to a suspension or cancellation under section 7, and establishing limits or conditions on this authorization;

(i.1) prescribing the circumstances in which the director may issue an authorization to sell tobacco at retail, and establishing limits or conditions on this authorization;

(i.2) prescribing the information respecting the sale of tobacco at retail that a person must provide to the director, and the time and manner for providing that information;

(i.3) prescribing the circumstances in which the director must cancel a person's dealer's permit, including the power to establish different circumstances for different permits or persons or classes of permits or persons;

(i.4) prescribing the circumstances in which the director may cancel a person's dealer's permit or a person's retail authorization, including the power to establish different circumstances for different permits, authorizations or persons or classes of permits, authorizations or persons;

(i.5) respecting an annual fee payable by a holder of a retail authorization, including a suspended retail authorization, or an applicant for a retail authorization, including, without limitation, the following:

(i) requiring the holder or applicant to pay an annual fee;

(ii) prescribing the amount of the fee, or a method for calculating the amount of the fee;

(iii) prescribing the time and manner of payment of the fee and authorizing the director to permit late payment of the fee or a different manner of payment of the fee in specified circumstances;

(iv) prescribing circumstances in which no fee, a portion of the fee or the entire fee is payable;

(v) prescribing circumstances in which a full or partial refund of a fee is payable or is not payable;

(vi) providing for consequences for non-payment of fees;

(j) prescribing limits on the quantity of tobacco that may be sold to or purchased by a person at a single retail sale or at retail sales during a specified period, including the power to establish different limits for different circumstances, different types of tobacco or different dealers, consumers, or classes of dealers and consumers;

(k) establishing a marking system, including the power to establish different marks or stamps for different types of tobacco or packages, for identifying tobacco that is to be sold to persons

(i) who are required to pay tax under this Act, or

(ii) whose purchase of tobacco is exempt from tax;

(k.1) establishing circumstances, in relation to the marking system, under which a person may possess, purchase, sell, transport or store tobacco, including the power to establish different circumstances for different types of tobacco;

(k.2) respecting applications for a refund under section 18;

(l) respecting anything considered by the Lieutenant Governor in Council to be necessary or advisable to carry out the intent and purpose of an agreement under section 43 or 43.2;

(m) prescribing a rate of interest or the manner in which a rate of interest is to be determined for the purpose of section 54 (15);

(n) prescribing the maximum quantity of tobacco that, if found by the director as described in section 51 (2), may be seized by the director under that section;

(o) prescribing interest rates and the manner of calculating interest for the purposes of this Act;

(o.1) respecting fees for certificates under sections 10 and 32.2, including setting the fee and the time and manner of payment of the fee;

(p) establishing circumstances in which sections 40 (4), 51 (2) and 54 (8) (a) do not apply to a prescribed category of persons.

(3) The maximum or minimum penalties that may be prescribed or imposed for contravention of a regulation must not be more than the maximum penalties or be less than the minimum penalties referred to in section 39 (1).

Not in force

44.1   [Not in force.]

Refunds authorized or required under regulations

44.2   The director,

(a) if authorized by a regulation under section 44 (2) (b.1), may pay from the consolidated revenue fund a refund of all or a portion of security paid by an applicant for a refund, and

(b) if required by a regulation under section 44 (2) (b.1), must pay from the consolidated revenue fund a refund of all or a portion of security paid by an applicant for a refund.

Proceeds paid into consolidated revenue fund

45   The proceeds of tax imposed under this Act and the proceeds of any forfeiture under section 54 (4) (a) must be paid into the consolidated revenue fund.

Repealed

46   [Repealed 2010-5-203.]

Effect on Provincial Sales Tax Act

46.1   Despite the Provincial Sales Tax Act, tobacco within the meaning of this Act is deemed not to be tangible personal property under that Act, and that Act does not apply to a consumer of tobacco under this Act.

Right to search for tobacco

47   If it is impracticable to obtain a warrant, and a peace officer has reasonable grounds to believe that

(a) tobacco is unlawfully possessed or kept, or possessed or kept for an unlawful purpose, or

(b) there are records or any other thing that will provide evidence related to tobacco that is unlawfully possessed or kept, or possessed or kept for an unlawful purpose,

the peace officer may, without a warrant,

(c) enter and search in any place or premises, other than a residence, for tobacco, records or any other thing referred to in paragraph (b), and

(d) stop a vehicle, vessel or aircraft, and search for tobacco, records or any other thing referred to in paragraph (b).

Search warrants

48   (1) For the purposes of this section, "premises" includes a residence.

(2) A justice who is satisfied, by information on oath, that there are reasonable grounds to believe that tobacco is

(a) unlawfully possessed or kept in a premises, vehicle, vessel or aircraft, or at any other place, or

(b) possessed or kept in a premises, vehicle, vessel or aircraft, or at any other place, for an unlawful purpose,

may, at any time, issue a warrant under the justice's signature, authorizing a peace officer named in it to enter and search the premises, vehicle, vessel, aircraft or place for the tobacco and to seize and remove the tobacco and any packaging found there.

(3) A justice who is satisfied, by information on oath, that there are reasonable grounds to believe that records or other things

(a) will provide evidence of the unlawful possession or keeping of tobacco, or the possession or keeping of tobacco for an unlawful purpose, and

(b) are possessed or kept in a premises, vehicle, vessel or aircraft, or at any other place,

may, at any time, issue a warrant under the justice's signature, authorizing a peace officer named in it to enter and search the premises, vehicle, vessel, aircraft or place for the records or other things and to seize and remove the records and other things found there.

Requirement to give assistance

49   (1) If a peace officer stops and searches a vehicle, vessel or aircraft, or enters and searches a premises or any other place under section 47 or 48, the person in charge of the vehicle, vessel or aircraft or the owner or occupant of the premises or other place must give the peace officer all reasonable assistance in connection with the stoppage, entry or search.

(1.1) A person must not

(a) hinder, molest or interfere with a peace officer doing anything that the peace officer is authorized to do under this Act, or

(b) prevent or attempt to prevent a peace officer from doing anything that the peace officer is authorized to do under this Act.

(2) A person commits an offence if the person does any of the following:

(a) refuses or fails to stop when required by a peace officer under section 47;

(b) obstructs or attempts to obstruct a peace officer who makes an entry or search under section 47 or 48;

(c) refuses to admit immediately a peace officer demanding entry to any place or premises as permitted by section 47 or 48.

Seizure by peace officer

50   (1) If in conducting or attempting to conduct a search under section 47 or 48, a peace officer finds

(a) tobacco that, in the peace officer's opinion, is unlawfully possessed or kept, or kept or possessed for an unlawful purpose, contrary to this Act or the regulations, or

(b) records or other things that in the peace officer's opinion will provide evidence of an offence against this Act or the regulations,

the peace officer may immediately seize and remove the tobacco, records or other things referred to in paragraph (a) or (b).

(2) A peace officer who removes anything under subsection (1) (b) must give a receipt to the person from whom it was removed and must promptly return the record, document or thing on completion of an investigation or proceeding.

(3) The government, or a person acting under the authority of this Act, is not liable for loss or damage arising from the deterioration or destruction of anything detained or seized under this Act during the period it is under a detention or seizure lawfully made under this Act.

Seizure by official

51   (1) [Repealed 2015-8-128.]

(2) The director may seize and remove tobacco that the director finds while conducting an inspection, audit or examination under section 21, and the packages in which the tobacco is kept, if

(a) the quantity of the tobacco found by the director is not more than the prescribed quantity, and

(b) the tobacco

(i) does not bear the prescribed mark or stamp,

(ii) bears a mark or stamp specified by an enactment of any jurisdiction, other than the prescribed mark or stamp,

(iii) was marked by a person not authorized by the director to mark tobacco,

(iv) is held for sale at retail in British Columbia by a person who is not authorized, by a dealer's permit or by regulation as required by section 5 (1), to sell tobacco at retail,

(v) was acquired for the purpose of sale at retail in British Columbia from a person who is not authorized, by a dealer's permit as required by section 5 (2), to sell tobacco at wholesale, or

(vi) is held for sale at retail in British Columbia by a person at a location contrary to a suspension under section 7 (2) (b) or 9 (1) or to a cancellation under section 7 (3) (b).

(3) For the purposes of subsection (2) (b) (iv) and (v), a person who holds a quantity of tobacco in excess of 1 000 grams of tobacco is deemed, in the absence of evidence to the contrary, to hold the tobacco for sale at retail in British Columbia.

(4) The director must provide a receipt for tobacco seized and removed under subsection (2) to the person from whom the tobacco is seized. 

(5) A receipt provided under subsection (4) must identify

(a) the quantity of tobacco seized and the location from which it was seized, and

(b) the name of the person from whom the tobacco was seized, the reason for the seizure and the date of the seizure.

(c) [Repealed 2015-8-128.]

(6) Tobacco seized under this section

(a) is forfeited to the government,

(b) may be destroyed by the director after the director is satisfied that the tobacco is no longer required for the purposes of an investigation or a proceeding, and

(c) does not give rise to an offence and must not be tendered as evidence in a prosecution for an offence.

(7) If, as a result of an appeal under section 23 or 24, it is determined by the minister or the court, as the case may be, that the appellant was entitled, in accordance with this Act, to possession of the tobacco seized under this section, the director must, at the director's option,

(a) return the tobacco to the person, or

(b) pay to the person out of the consolidated revenue fund an amount equal to the wholesale cost of the tobacco at the time of its seizure.

(8) A person to whom tobacco is returned or money is paid under subsection (7) is not entitled to compensation for any losses, costs or damages suffered or incurred by the person directly or indirectly as a result of the seizure or the appeal.

Order for detention of things seized

52   (1) As soon as practicable but no later than 10 days after a seizure under section 48 or 50, the peace officer who made the seizure must report the seizure to a justice in order that the thing seized may be dealt with in accordance with subsection (3).

(2) If the seizure referred to in subsection (1) is made under warrant, the report must be made to the justice who issued the warrant or, if that is not practicable, to a justice having jurisdiction.

(3) On receiving the report under subsection (1), the justice may

(a) order the thing returned to its owner or other person entitled to it unless satisfied that an order under paragraph (b) should be made, or

(b) order the thing detained if satisfied that

(i) the detention is required for purposes of an investigation or proceeding, or

(ii) the thing may be subject to forfeiture under section 54.

(4) Anything ordered detained under this section that may be subject to forfeiture under section 54 and that is not required for the purposes of an investigation or proceeding must be placed in the custody of the director or a person designated by the director.

Detention of evidence

53   (1) Anything detained under section 52, other than a thing that may be subject to forfeiture under section 54, must not be detained for a period longer than 1 year from the date of its seizure unless, before the expiration of that period,

(a) proceedings have been commenced in respect of the thing,

(b) the owner of the thing agrees to its continued detention, or

(c) a justice is satisfied that the continued detention of the thing seized is warranted for a specified period, subject to any other conditions as the justice considers appropriate, and so orders.

(2) More than one order may be made under subsection (1) (c) with respect to anything that is detained under section 52.

(3) The director may make or cause to be made one or more copies of any record ordered detained under this section or section 52.

(4) Anything ordered detained under this section or under section 52, other than a thing that may be subject to forfeiture under section 54, must be returned to its owner or the person entitled to it without delay on completion of all proceedings in which it may be required.

Detention and forfeiture of tobacco

54   (1) A person who has custody of tobacco under section 52 may return all or part of the tobacco, together with any packages in which it is kept that are also in custody, to the person, if any, lawfully entitled to have possession of it on receiving

(a) an amount of money equal to the value of the returned tobacco and packages plus an amount of money equal to the tax that would have been paid on the retail sale of the tobacco at the time immediately before they were seized, or

(b) if the director authorizes, security satisfactory to the director.

(2) After giving the persons claiming to be entitled to the tobacco a reasonable opportunity to satisfy the requirements for the tobacco's return under subsection (1), the director may sell or cause to be sold, or dispose of in any manner other than by sale, all or part of the tobacco detained under section 52.

(3) The director must hold in trust any money or security received under subsection (1) and any money obtained on a sale under subsection (2) in place of the tobacco and packages that were returned or sold.

(4) Subject to section 55 (2), tobacco and any packaging in which it was kept that were seized under section 48 or 50 (1), and any money or security held under subsection (3) of this section, are forfeited to the government, if a conviction is obtained for an offence referred to in section 39 (7) or (9) in relation to the tobacco.

(5) A person who claims to be the person lawfully entitled to possession of tobacco seized under section 48 or 50 (1), other than a person entitled to make an application to the Supreme Court under section 55, may apply to a justice, on at least 10 clear days' notice to the Attorney General, for an order that the tobacco be returned to the applicant if

(a) at least 6 months has expired since the date of the seizure and no proceeding in respect of the tobacco has been initiated, or

(b) a proceeding, including all available appeals, in respect of an offence alleged under section 39 (7) or (9) in relation to the tobacco has been concluded and no conviction has been obtained.

(6) An application under subsection (5) (a) must be brought within 12 months after the date of the seizure.

(7) An application under subsection (5) (b) must be brought within 30 days after the conclusion of the proceeding referred to in that subsection.

(8) On an application under subsection (5), the justice must

(a) order the tobacco forfeited to the government if the justice is satisfied that the tobacco

(i) does not bear the prescribed mark or stamp,

(ii) bears a mark or stamp specified by an enactment of any jurisdiction, other than the prescribed mark or stamp, or

(iii) was marked by a person not authorized by the director to mark tobacco, or

(b) if the justice is satisfied that the tobacco is not tobacco referred to in paragraph (a), that the applicant is lawfully entitled to possession of the tobacco and that it is no longer reasonably necessary to retain the tobacco, order that

(i) the tobacco be returned to the applicant, or

(ii) the applicant be paid an amount equal to the wholesale cost of the tobacco at the time of its seizure.

(9) A person aggrieved by an order made under subsection (8) may appeal from the order to the Supreme Court, and for the appeal sections 103 to 114 of the Offence Act apply.

(10) If an application is not brought under subsection (5) within the time required by subsection (6) or (7), the tobacco is forfeited to the government.

(11) Any money or security held by the director under subsection (3) in place of tobacco seized under section 48 or 50 (1) must be returned to the owner of the tobacco or to any other person entitled to the money or security if

(a) at least 6 months has expired since the date of the seizure and no investigation or proceeding in respect of the tobacco has been initiated, or

(b) a proceeding, including all available appeals, in respect of an offence alleged under section 39 (7) or (9) in relation to the tobacco has been concluded and no conviction has been obtained.

(12) A person to whom tobacco is returned, money is paid or security is returned under subsection (8) or (11) is not entitled to compensation for any losses, costs or damages suffered or incurred by the person directly or indirectly as a result of the seizure, the provision of security or an application made under this section.

(13) In the event of a conflict between this section and section 24 of the Offence Act, this section prevails.

(14) Money payable under subsection (8) (b) (ii) must be paid out of the consolidated revenue fund.

(15) If money is returned to the owner or other person in accordance with subsection (4) (b) or paid to the owner or other person in accordance with subsection (14), there must also be paid to that person out of the consolidated revenue fund interest as prescribed in respect of the time between the date of seizure and the date the money is returned.

Third parties claiming an interest in things seized

55   (1) If tobacco is seized as forfeited under this Act, any person, other than a person accused of an offence resulting in the seizure or in whose possession the thing was when seized, who claims an interest in the tobacco as an owner, lien holder or holder of any similar interest may, within 30 days after the seizure, apply to the Supreme Court for an order under subsection (2).

(2) If, on the hearing of an application made under subsection (1), it appears to the satisfaction of the court that

(a) the applicant is innocent of any complicity in the offence resulting in the seizure or of any collusion with the offender in relation to the offence, and

(b) the applicant exercised all reasonable care in respect of any person permitted to obtain possession of the tobacco to satisfy the applicant that possession of the tobacco was not contrary to this Act or the regulations,

the applicant is entitled to an order declaring that the applicant's interest is not affected by the seizure and declaring the nature and extent of the applicant's interest at the time of the contravention, and the court may order that the tobacco be returned to the applicant.

Report of seizures

56   If tobacco is seized by a peace officer, the peace officer must promptly report in writing to the director the particulars of the seizure as soon as practicable but no later than 10 days after the seizure.

Absence of mark or stamp to be notice

57   The absence of the prescribed mark or stamp required to be affixed to any package in which tobacco is sold, offered for sale, kept for sale or found in the possession of any person, is notice to all persons that tax imposed on the tobacco under this Act has not been accounted for.

Prohibitions

58   (1) A dealer must not sell tobacco that does not bear the prescribed mark or stamp to a consumer who is liable to pay tax under this Act unless the dealer has taken reasonable care to ensure that the package in which the tobacco is kept bears the prescribed mark or stamp.

(2) A consumer who is liable to pay tax under this Act must not purchase tobacco unless the consumer has taken reasonable care to ensure that the package in which the tobacco is kept bears the prescribed mark or stamp.

(3) A person who is liable to pay tax under this Act must not possess or keep tobacco in excess of 1 000 grams of tobacco if the packages in which the tobacco is kept do not bear the prescribed mark or stamp.

(4) Subject to subsection (4.1), a person must not transport in British Columbia

(a) tobacco in quantities in excess of 50 cartons of cigarettes, or

(b) tobacco in bulk in excess of 10 kilograms.

(4.1) Subsection (4) does not apply to

(a) a dealer who is authorized to sell tobacco by a dealer's permit or by regulation, or

(b) a person who is in the business of transporting goods for members of the public and is under contract with a person referred to in paragraph (a) to move tobacco for that person.

(5) Subject to subsection (6), a person must not sell or otherwise distribute tobacco or any packages, cartons or cases that have been marked with the prescribed mark or stamp if the person selling or distributing knows or ought to know that the person to whom the tobacco, packages, cartons or cases are sold or distributed is a person who, outside of British Columbia, sells or offers to sell tobacco or keeps tobacco for sale, either at wholesale or retail.

(6) Subsection (5) does not apply if the tobacco, packages, cartons or cases are sold or distributed to a person who holds a dealer's permit.

(7) A person must not, without first receiving the written authorization of the director to do so, mark tobacco or any package, carton or case with the prescribed mark or stamp.

Grams of tobacco per cigarette

59   For the purposes of this Act and the regulations, one cigarette is deemed to contain one gram of tobacco.