Marginal note:Refund — alcohol returned to warehouse

186. If packaged alcohol that has been removed from the excise warehouse of an excise warehouse licensee for entry into the duty-paid market is returned in accordance with section 152 to the warehouse, the Minister may refund to the licensee the duty paid on the alcohol if the licensee applies for the refund within two years after the alcohol is returned.

Marginal note:Refund — alcohol in special container

187. If a marked special container of alcohol is returned to the excise warehouse licensee who paid duty on the alcohol, the Minister may refund to the licensee the duty on the alcohol remaining in the container when it is returned if the licensee

• (a) destroys the alcohol in the manner approved by the Minister; and

• (b) applies for the refund within two years after the container is returned.

Assessments

Marginal note:Assessments

• 188. (1) The Minister may assess

  • (a) the duty payable by a person for a fiscal month of the person; and

  • (b) subject to section 190, interest and any other amount payable by a person under this Act.

• Marginal note:Reassessment

  (2) The Minister may reassess or make an additional assessment of any duty, interest or other amount that may be assessed under subsection (1).

• Marginal note:Allowance of unclaimed amounts

  (3) If, in assessing the duty, interest or other amount payable by a person for a fiscal month of the person or other amount payable by a person under this Act, the Minister determines that

  • (a) a refund would have been payable to the person if it had been claimed in an application under this Act filed on the particular day that is

    • (i) if the assessment is in respect of duty payable for the fiscal month, the day on which the return for the month was required to be filed, or

    • (ii) if the assessment is in respect of interest or other amount, the day on which the interest or other amount became payable by the person,

  • (b) the refund was not claimed by the person in an application filed before the day on which notice of the assessment is sent to the person, and

  • (c) the refund would be payable to the person if it were claimed in an application under this Act filed on the day on which notice of the assessment is sent to the person or would be disallowed if it were claimed in that application only because the period for claiming the refund expired before that day,

  the Minister shall, unless otherwise requested by the person, apply all or part of the refund against that duty, interest or other amount that is payable as if the person had, on the particular day, paid the amount so applied on account of that duty, interest or other amount.

• Marginal note:Application of overpayment

  (4) If, in assessing the duty payable by a person for a fiscal month of the person, the Minister determines that there is an overpayment of duty payable for the month, unless the assessment is made in the circumstances described in paragraph 191(4)(a) or (b) after the time otherwise limited for the assessment under paragraph 191(1)(a), the Minister shall, unless otherwise requested by the person,

  • (a) apply

    • (i) all or part of the overpayment

    against

    • (ii) any amount (in this paragraph referred to as the “outstanding amount”) that, on the particular day on which the person was required to file a return for the month, the person defaulted in paying under this Act and that remains unpaid on the day on which notice of the assessment is sent to the person,

    as if the person had, on the particular day, paid the amount so applied on account of the outstanding amount;

  • (b) apply

    • (i) all or part of the overpayment that was not applied under paragraph (a) together with interest on the overpayment at the prescribed rate, computed for the period beginning on the day that is 30 days after the latest of

      • (A) the particular day,

      • (B) the day on which the return for the fiscal month was filed, and

      • (C) in the case of an overpayment that is attributable to a payment made on a day subsequent to the days referred to in clauses (A) and (B), that subsequent day,

      and ending on the day on which the person defaulted in paying the outstanding amount referred to in subparagraph (ii)

    against

    • (ii) any amount (in this paragraph referred to as the “outstanding amount”) that, on a day (in this paragraph referred to as the “later day”) after the particular day, the person defaulted in paying under this Act and that remains unpaid on the day on which notice of the assessment is sent to the person,

    as if the person had, on the later day, paid the amount and interest so applied on account of the outstanding amount; and

  • (c) refund to the person the part of the overpayment that was not applied under paragraphs (a) and (b) together with interest on the refund at the prescribed rate, computed for the period beginning on the day that is 30 days after the latest of

    • (i) the particular day,

    • (ii) the day on which the return for the fiscal month was filed, and

    • (iii) in the case of an overpayment that is attributable to a payment made on a day subsequent to the days referred to in subparagraphs (i) and (ii), that subsequent day,

    and ending on the day on which the refund is paid to the person.

• Marginal note:Application of payment

  (5) If, in assessing the duty payable by a person for a fiscal month of the person or an amount (in this subsection referred to as the “overdue amount”) payable by a person under this Act, all or part of a refund is not applied under subsection (3) against that duty payable or overdue amount, except if the assessment is made in the circumstances described in paragraph 191(4)(a) or (b) after the time otherwise limited for the assessment under paragraph 191(1)(a), the Minister shall, unless otherwise requested by the person,

  • (a) apply

    • (i) all or part of the refund that was not applied under subsection (3)

    against

    • (ii) any other amount (in this paragraph referred to as the “outstanding amount”) that, on the particular day that is

      • (A) if the assessment is in respect of duty payable for the fiscal month, the day on which the return for the month was required to be filed, or

      • (B) if the assessment is in respect of an overdue amount, the day on which the overdue amount became payable by the person,

      the person defaulted in paying under this Act and that remains unpaid on the day on which notice of the assessment is sent to the person,

    as if the person had, on the particular day, paid the refund so applied on account of the outstanding amount;

  • (b) apply

    • (i) all or part of the refund that was not applied under subsection (3) or paragraph (a) together with interest on the refund at the prescribed rate, computed for the period beginning on the day that is 30 days after the later of

      • (A) the particular day, and

      • (B) if the assessment is in respect of duty payable for the fiscal month, the day on which the return for the month was filed,

      and ending on the day on which the person defaulted in paying the outstanding amount referred to in subparagraph (ii)

    against

    • (ii) any amount (in this paragraph referred to as the “outstanding amount”) that, on a day (in this paragraph referred to as the “later day”) after the particular day, the person defaulted in paying under this Act and that remains unpaid on the day on which notice of the assessment is sent to the person,

    as if the person had, on the later day, paid the refund and interest so applied on account of the outstanding amount; and

  • (c) refund to the person the part of the refund that was not applied under any of subsection (3) and paragraphs (a) and (b) together with interest on the refund at the prescribed rate, computed for the period beginning on the day that is 30 days after the later of

    • (i) the particular day, and

    • (ii) if the assessment is in respect of duty payable for the fiscal month, the day on which the return for the month was filed,

    and ending on the day on which the refund is paid to the person.

• Marginal note:Limitation on refunding overpayments

  (6) An overpayment of duty payable for a fiscal month of a person and interest on the overpayment shall not be applied under paragraph (4)(b) or refunded under paragraph (4)(c) unless the person has, before the day on which notice of the assessment is sent to the person, filed all returns or other records that the person was required to file with the Minister under this Act, the Customs Act, the Excise Act, the Excise Tax Act and the Income Tax Act.

• Marginal note:Limitation

  (7) A refund or a part of the refund that was not applied under subsection (3) and interest on the refund under paragraphs (5)(b) and (c)

  • (a) shall not be applied under paragraph (5)(b) against an amount (in this paragraph referred to as the “outstanding amount”) that is payable by a person unless the refund would have been payable to the person as a refund if the person had claimed it in an application under this Act filed on the day on which the person defaulted in paying the outstanding amount and, in the case of a payment under section 176, if that section allowed the person to claim the payment within four years after the person paid the amount in respect of which the payment would be so payable; and

  • (b) shall not be refunded under paragraph (5)(c) unless

    • (i) the refund would have been payable to the person as a refund if the person had claimed it in an application under this Act filed on the day on which notice of the assessment is sent to the person, and

    • (ii) the person has filed all returns or other records that the person was required to file with the Minister under this Act, the Customs Act, the Excise Act, the Excise Tax Act and the Income Tax Act before the day on which notice of the assessment is sent to the person.

• Marginal note:Deemed claim or application

  (8) If, in assessing any duty, interest or other amount payable by a person under this Act, the Minister applies or refunds an amount under subsection (3), (4) or (5),

  • (a) the person is deemed to have claimed the amount in a return or application filed under this Act; and

  • (b) to the extent that an amount is applied against any duty, interest or other amount payable by the person, the Minister is deemed to have refunded or paid the amount to the person and the person is deemed to have paid the duty, interest or other amount payable against which it was applied.

• Marginal note:Refund on reassessment

  (9) If a person has paid an amount on account of any duty, interest or other amount assessed under this section in respect of a fiscal month and the amount paid exceeds the amount determined on reassessment to have been payable by the person, the Minister may refund to the person the amount of the excess, together with interest on the excess amount at the prescribed rate for the period that

  • (a) begins on the day that is 30 days after the latest of

    • (i) the day on which the person was required to file a return for the month,

    • (ii) the day on which the person filed a return for the month, and

    • (iii) the day on which the amount was paid by the person; and

  • (b) ends on the day on which the refund is paid.

• Meaning of “overpayment of duty payable”

  (10) In this section, “overpayment of duty payable” of a person for a fiscal month of the person means the amount, if any, by which the total of all amounts paid by the person on account of duty payable for the month exceeds the total of

  • (a) the duty payable for the month, and

  • (b) all amounts paid to the person under this Act as a refund for the month.

Marginal note:Assessment of refund

• 189. (1) On receipt of an application made by a person for a refund under this Act, the Minister shall, without delay, consider the application and assess the amount of the refund, if any, payable to the person.

• Marginal note:Reassessment

  (2) The Minister may reassess or make an additional assessment of the amount of a refund despite any previous assessment of the amount of the refund.

• Marginal note:Payment

  (3) If on assessment under this section the Minister determines that a refund is payable to a person, the Minister shall pay the refund to the person.

• Marginal note:Restriction

  (4) A refund shall not be paid until the person has filed with the Minister all returns or other records that are required to be filed under this Act, the Customs Act, the Excise Act, the Excise Tax Act and the Income Tax Act.

• Marginal note:Interest

  (5) If a refund is paid to a person, the Minister shall pay interest at the prescribed rate to the person on the refund for the period beginning on the day that is 30 days after the day on which the application for the refund is filed with the Minister and ending on the day on which the refund is paid.

Marginal note:No assessment for penalty

190. No assessment shall be made for any penalty imposed under section 254.

Marginal note:Limitation period for assessments

• 191. (1) Subject to subsections (3) to (7), no assessment shall be made for any duty, interest or other amount payable under this Act

  • (a) in the case of an assessment of the duty payable for a fiscal month, more than four years after the later of the day on which the return for the month was required to be filed and the day on which the return was filed;

  • (b) in the case of an assessment for any other amount payable under this Act, more than four years after the amount became payable; or

  • (c) in the case of an assessment for an amount for which a trustee in bankruptcy became liable under section 212, after the earlier of

    • (i) the day that is 90 days after the return on which the assessment is based is filed with, or other evidence of the facts on which the assessment is based comes to the attention of, the Minister, and

    • (ii) the expiry of the period referred to in paragraph (a) or (b), whichever applies in the circumstances.

• Marginal note:Limitation re refund assessment

  (2) Subject to subsections (3) to (7), an assessment of the amount of a refund or any other payment that may be obtained under this Act may be made at any time but a reassessment or additional assessment of an amount paid or applied as a refund under this Act or of an amount paid as interest in respect of an amount paid or applied as a refund under this Act shall not be made more than four years after the application for the amount was filed in accordance with this Act.

• Marginal note:Exception

  (3) Subsections (1) and (2) do not apply to a reassessment of a person made

  • (a) to give effect to a decision on an objection or appeal; or

  • (b) with the consent in writing of the person to dispose of an appeal.

• Marginal note:No limitation on assessment if fraud, etc.

  (4) An assessment in respect of any matter may be made at any time if the person to be assessed has, in respect of that matter,

  • (a) made a misrepresentation that is attributable to their neglect, carelessness or wilful default;

  • (b) committed fraud

    • (i) in making or filing a return under this Act,

    • (ii) in making or filing an application for a refund under this Act, or

    • (iii) in supplying or failing to supply any information under this Act; or

  • (c) filed a waiver under subsection (8) that is in effect at that time.

• Marginal note:No limitation if payment for another fiscal month

  (5) If, in making an assessment, the Minister determines that a person has paid in respect of any matter an amount as or on account of duty payable for a fiscal month of the person that was payable for another fiscal month of the person, the Minister may at any time make an assessment for that other month in respect of that matter.

• Marginal note:Reduction of duty — fiscal month

  (6) If the result of a reassessment on an objection to, or a decision on an appeal from, an assessment is to reduce the amount of duty payable by a person and, by reason of the reduction, any refund or other payment claimed by the person for a fiscal month, or in an application for a refund or other payment, should be decreased, the Minister may at any time assess or reassess that fiscal month or that application only for the purpose of taking the reduction of duty into account in respect of the refund or other payment.

• Marginal note:Alternative argument in support of assessment

  (7) The Minister may advance an alternative argument in support of an assessment of a person at any time after the period otherwise limited by subsection (1) or (2) for making the assessment unless on an appeal under this Act

  • (a) there is relevant evidence that the person is no longer able to adduce without the leave of the court; and

  • (b) it is not appropriate in the circumstances for the court to order that the evidence be adduced.

• Marginal note:Waiver

  (8) Any person may, within the time otherwise limited by subsection (1) or (2) for an assessment, waive the application of subsection (1) or (2) by filing with the Minister a waiver in the prescribed form and manner specifying the matter in respect of which the person waives the application of that subsection.

• Marginal note:Revoking waiver

  (9) Any person who files a waiver under subsection (8) may revoke it on six months notice to the Minister by filing with the Minister a notice of revocation of the waiver in the prescribed form and manner.