Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CRA.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.
Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the Department.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle du ministère.
Principal Issues:
Whether the passing of a by-law by an Indian band under section 83 of the Indian Act is sufficient to enable the band to be considered a municipality for the purposes of issuing receipts for charitable donations.
What constitutes satisfactory evidence that a band qualifies to issue receipts?
Position:
No.
It would be appropriate to request to see a copy of the appropriate by-laws.
Reasons:
In order to qualify, a band must pass by-laws under both sections 81 and 83 of the Indian Act. On a practical note, if a band has passed a by-law under section 83, it may well have passed a by-law under section 81 since section 81 deals with matters of administration whereas section 83 deals with taxation and requires the approval of the Minister of DIAND.
January 3, 1996
HEADQUARTERS HEADQUARTERS
Charities Division J.D. Brooks
R. A. Davis 957-2103
Director
Attention: Carl Juneau
960039
Indian Bands Issuing Receipts for Charitable Donations
We are writing you concerning a letter dated December 7, 1995 which you received from the XXXXXXXXXX letter identified the following four bands as having passed bylaws under section 83 of the Indian Act:
XXXXXXXXXX
It appears that the purpose of XXXXXXXXXX letter is to keep you informed of Indian bands which XXXXXXXXXX feels have become qualified to issue receipts for charitable donations.
As you are aware, the Department's former position was that a band that had reached the advanced stage of development required by the former section 83 of the Indian Act would qualify under paragraph 149(1)(c) of the Income Tax Act as a public body performing a function of government and would, as an administrative concession, be regarded as a Canadian municipality for purposes of issuing receipts for charitable donations. Following the amendment to section 83 of the Indian Act in 1988, the Department adopted the position that, in the case of a band that had not reached an advanced stage of development, a band would be regarded as a public body performing a function of government and could issue receipts for charitable donations where it had passed at least one by-law under each of sections 81 and 83 of the Indian Act.
The letter from XXXXXXXXXX notes only that the identified bands have passed by-laws under section 83. Where a band has passed a by-law under section 83 of the Indian Act, it may well be that it has also passed a by-law under section 81. However, we have not attempted to verify the accuracy or completeness of the information provided on the four bands identified above.
We note that subsection 82(1) of the Indian Act requires a copy of every by-law made under the authority of section 81 of that Act to be forwarded to the Minister of the Department of Indian Affairs and Northern Development ("DIAND") within four days after it is made. Thus, evidence that a band has passed at least one by-law under section 81 should be available from DIAND. By-laws passed under subsection 83(1) are subject to the approval of the Minister of DIAND and, thus, evidence that a band has passed at least one by-law under section 83 should also be available from DIAND.
In order to maintain a reliable list as to which Indian bands qualify to issue receipts for charitable donations, you may wish to have DIAND or XXXXXXXXXX submit copies of a by-law passed by a band under each of sections 81 and 83 of the Indian Act to support the purported facts. This would be consistent with the procedure we follow when asked to rule that a band qualifies under paragraph 149(1)(c) of the Income Tax Act in that we request the band to substantiate its claims by submitting copies of appropriate by-laws.
Bryan W. Dath
Director
Business and General Division
Income Tax Rulings and
Interpretations Directorate
Policy and Legislation Branch
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