23 August 2001 GST/HST Interpretation 33828 - Determination of Eligibility as a Band Empowered Entity Situated on Reserve

Dear XXXXX

I am responding to your letter of November 27, 2000, that was sent to XXXXX GST/HST Rulings. The issue to be determined is whether the XXXXX is a band empowered entity that is eligible for rebates of tax (GST/HST) as provided in Technical Information Bulletin - 039R GST Administrative Policy Application of GST to Indians (TIB039R).

The following information is as set out in the XXXXX and an undated document entitled XXXXX

•   The XXXXX. (Corporation) is a body corporate, without share capital, in accordance with the XXXXX[.] The date of the XXXXX. XXXXX[.]

•   The head office of the Corporation is off reserve.

•   Membership of the Corporation shall be open to 35 XXXXX First Nation XXXXX (we understand that these entities are 'bands' as defined in the Indian Act), as represented by the elected Chief. Membership is also open to other persons who, after making application for admission as member, are approved by the board of directors.

•   The property/business of the corporation shall be managed by a board of 4 to 6 directors of whom no less than two directors constitute a quorum. Directors must be members of the Corporation and are elected for a term of one year by the members. The board of directors shall meet at least once per year. Each director is authorized to exercise one vote.

•   The officers of the corporation shall be two co-chairs elected at the annual general meeting of the members. Other officers include a vice chair, secretary and treasurer and any other officers as the board of directors determine by by-law and shall be appointed by resolution of the board of directors.

•   Accumulated profits cannot be distributed to the members of the Corporation.

•   Upon dissolution, "any assets ...shall be distributed equally amongst all the XXXXX XXXXX First Nation XXXXX that are members of the Corporation".

We understand that the Corporation does not maintain an office on reserve. In addition, we understand that the meetings where the decisions are made that direct the operations of the Corporation are held off reserve.

Based on the information set out above, our position is that the Corporation is not a band empowered entity that is situated on reserve. Therefore, the Corporation does not qualify for the relief of tax or rebates of tax described in TIB039R. However, to the extent that the Corporation qualifies, it may be eligible to claim input tax credits or rebates under the provisions of the Excise Tax Act.

Should you require clarification on the above matter, please call me at (613) 954-7957

Yours truly,

Dave Caron
Manager
Aboriginal Affairs Unit
Public Service Bodies and Governments Unit
Excise and GST/HST Rulings Directorate