Subsection 223(1) - Disclosure of Tax
Cases
National Money Mart Co. v 24 Gold Group Ltd, 2018 ONCA 812
A supplier (“Money Mart”) did not charge HST on a sale of unrefined gold. Later it was audited and assessed for the missing HST, and on payment of the assessment and also after having issued invoices to the purchaser (“24 Gold”) showing the sale particulars and the applicable amount of HST as being unpaid (which 24 Gold refused to pay as it was not satisfied it would receive an input tax credit), then sued 24 Gold for the tax.
24 Gold argued that s. 223(1), properly interpreted, requires “the invoice or receipt” in respect of the supply to be issued to the recipient at the time of the supply. In rejecting this argument, Brown JA stated:
Section 223(1) is silent on when a registrant must give disclosure of the tax payable to a recipient. The overwhelming weight of the jurisprudence, the CRA’s Policy Statement P-116, and the professional commentary have interpreted that statutory silence to mean that a registrant supplier can comply with the s. 223(1) disclosure obligations by delivering an invoice or receipt containing the prescribed information after the supply transaction.
Occo Developments Ltd. v. McCauley, 1996 CanLII 4803 (NBCA)
The appellant (“Occo”) sold a residential unit to the respondent and charged and collected GST. In May 1994, Occo received notice that following an assessment, Revenue Canada had determined that a further amount of GST was payable for the sale, and on June 23, 1994, Occo wrote to the respondent claiming this further amount as well as a proportional share of penalties and interest owed to Revenue Canada.
Bastarache JA noted (at para. 12) the respondent’s argument “that the amount of GST claimed must be incorporated in the original invoice, receipt or agreement, and it cannot be changed subsequently,” and then rejected this position, stating (at para. 13):
The Act … imposes the tax on the recipient of the service, not on the supplier. It would therefore be an unreasonable interpretation of subsection 223(1) to limit the sending of a notice of the amount of GST due to documents issued at the time the supply was received. … [T]he formulation of the obligations in s. 223(1) does not reveal any intention of Parliament to impose such a restriction.
Governor's Hill Development Ltd. v. Robert, [1993] GSTC 35 (Ont. Ct. G.D.), aff'd [1996] GSTC 43 (C.A.)
A statement in an agreement of purchase and sale that the "vendor agrees to pay the GST on Penthouse #19" was interpreted to mean that the vendor should absorb the GST that otherwise would be payable by the purchaser on the stipulated purchase price, rather than as meaning that the purchaser would still be responsible for paying GST over and above the purchase price and the vendor would satisfy its obligation merely by remitting the GST collectible by it from the purchaser to the Receiver General.
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Excise Tax Act - Section 224 | 86 |
Woodlawn Construction Ltd. v. Bedford Waterfront Development Corp. Ltd., [1993] GSTC 34 (NSSC T.D.)
The plaintiff was precluded from adding GST to the unit price that had won it a bid to work on a construction project given that the instructions provided to all tenderers stipulated that "federal and provincial taxes are to be included in the taxes quoted".
See Also
Simonetta v. The King, 2023 TCC 54 (Informal Procedure)
Sommerfeldt J found that a sale of a new home occurred as an adventure in the nature of trade, and was not the sale of a home that had previously been occupied as a residence, so that the HST-inclusive price included tax.
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Excise Tax Act - Section 254 - Subsection 254(2) - Paragraph 254(2)(d) | sale occurred as an adventure in the nature of trade, so that HST-inclusive price included tax | 224 |
| Tax Topics - Excise Tax Act - Section 262 - Subsection 262(1) | need for builder-required particulars for the HST new housing rebate fell away if obtaining them was not feasible | 215 |
| Tax Topics - Excise Tax Act - Section 123 - Subsection 123(1) - Builder - Paragraph (f) | purchaser established that the vendor was a builder | 155 |
Libfeld v. The Queen, 2022 TCC 91 (Informal Procedure), aff'd 2023 FCA 235
Smith J further found that the appellant’s purchase of a new home did not satisfy the s. 254(2)(d) test that the purchase price included HST, noting that the purchase agreement merely provided that the purchase price included HST “if” the sale was subject to HST.
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Excise Tax Act - Section 254 - Subsection 254(2) - Paragraph 254(2)(a) | new home purchaser bound by the vendor’s certification that it was an exempt sale | 254 |
| Tax Topics - Excise Tax Act - Section 123 - Subsection 123(1) - Builder - Paragraph (f) | no direct evidence that vendor was not selling as capital property | 206 |
NWorks Management Corp. (Globotech Communications) v. Lincourt, 2018 QCCQ 1021
In various transactions between January 1, 2010 and June 30, 2014, the appellant (“NWorks”) issued invoices to the respondent that quoted its GST and QST registration numbers and charged GST, but failed to charge QST due (it alleged) to a mistaken understanding that none was applicable. On November 6, 2014, the ARQ assessed NWorks for such QST, and NWorks promptly sent a composite invoice in proper form to the respondent showing a balance owing for unpaid QST in respect of the period from January 1, 2010 onwards.
In finding that NWorks was entitled to recover the additional amounts from the respondent pursuant to the Quebec equivalent of ETA s. 224 on the basis that NWorks’s subsequent invoice had satisfied the requirements of the Quebec equivalent of ETA s. 223 (namely, of QSTA s. 425), Sirois JCQ stated (at paras. 61-62, 65-66, TaxInterpretations translation):
Occo establishes that it produces an unreasonable result to interpret the Act as precluding a supplier from recovering the tax that it did not “invoice” at the time of the supply of the service.
Occo provides that it requires clear wording in the Act to depart from its fundamental principles by holding the supplier-agent ultimately responsible for the tax in lieu of the recipient. …
[T]he object of ETA section 223 and QSTA section 425 is to permit the recipient from whom the taxes are collected to be apprised of the amounts owing for the supply and what are the payments due for each of the taxes so as permit it to receive credits to which it has a right upon being invoiced for those taxes.
That which the recipient must pay to the supplier-agent can be recovered as a credit or refund for inputs.
And at para. 116:
In the two decisions 130099 Canada Inc. v. Lamontagne [2009 QCCQ 7158 (CanLII)] and Romaniuk c. Broderies Pena S.E.N.C. [2011 QCCS 1941 (CanLII)] cited above, the courts added the non-existent words “at the time of invoicing” to the text of QSTA section 425.
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Excise Tax Act - Section 224 | supplier who failed to charge QST could recover, following assessment, from recipient | 156 |
| Tax Topics - Excise Tax Act - Section 225 - Subsection 225(4) - Paragraph 225(4)(c) | purpose is to permit late recovery and matching ITC | 141 |
Lauber v. Reid, 2016 QCCA 1587
Under the terms of a contract for home renovation work to be performed for the appellant (a real estate agent) by the respondent, the respondent was to be paid 35% of the sale price “in consideration of the renovation work” with a minimum of $805,000 and a maximum of $910,000. After the house was sold, the respondent invoiced the appellant for $805,000 (which was paid) plus $40,250 GST and $80,299 QST (which were disputed) on the day that she became registered for GST/QST purposes.
In affirming the finding below that “the right to bring an action to recover the sales taxes is not subject to the collector having been registered with the tax authorities when the services were provided,” Dutil JA stated (at paras 12 and 13):
Sections 223 and 224 of the Excise Tax Act and the Sections 425 and 427 of the Act Respecting the Québec Sales Tax, demonstrate that the taxes are payable as a function of the supply of a taxable service (in this instance) and not the registration with the taxing authorities by the supplier of the service. The right of recovery by legal proceedings is specifically created by the statutes as if the tax debt was due to the supplier and not the taxing authority.
… [T]he services in question are taxable because the law provides that unless specifically stipulated, GST and PST are not included in the gross price for the taxable goods or service.
Administrative Policy
12 July 2023 GST/HST Ruling 174441 - and GST/HST INTERPRETATION - Application of GST/HST on funds raised through crowdfunding
Regarding crowd-funding pledges (found to be contractually binding) where the contract did not specify whether the pledges were inclusive or exclusive of GST/HST, CRA stated that: “Factors such as the invoicing practices, industry practices and supporting documentation will be pertinent and used in the determination” as to “whether a tax-extra or tax-included assessment should be made … .”
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Excise Tax Act - Section 142 - Subsection 142(1) - Paragraph 142(1)(c) - Subparagraph 142(1)(c)(i) | if no contractual restrictions on place of use of IPP, the IPP is supplied in Canada | 203 |
| Tax Topics - Excise Tax Act - Regulations - New Harmonized Value-Added Tax System Regulations - Section 11 | applicable specified province (regarding a non-zero-rated supply of IPP to a non-resident with unspecified address) was the one most proximate to the business office of the IPP supplier | 249 |
| Tax Topics - Excise Tax Act - Section 133 | s. 133 effectively deemed advance payments to be consideration for a taxable supply | 117 |
27 July 2021 GST/HST Ruling 175140 - Application of the GST/HST to supplies of services made by a determined municipality
After finding that services provided by a conservation authority to a municipality were taxable supplies, CRA stated:
A supplier may issue an amended invoice or an additional invoice to account for the uncollected tax and to meet the disclosure requirements in the ETA. Where there are no contractual or common law restrictions to prevent the issuance of amended or additional invoices, the Canada Revenue Agency (CRA) will accept that the disclosure of an amount of tax payable may be met after the fact.
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Excise Tax Act - Schedules - Schedule V - Part VI - Section 22 | fee for providing water level and flow data was taxable | 148 |
Articles
GST M 300-7-7, "Co-operative Advertising", : The registered recipient of a supply can prepare and sign documentation that meets the requirements so long as the supplier accepts the documentation and ensures that it adequately discloses the amount of tax paid.
Subsection 223(2)
See Also
Axamit Versa Inc. v. The King, 2022 TCC 163 (Informal Procedure)
The ARQ denied input tax credits claimed by Axamit for its 2015 year regarding GST charged by its landlord, because Axamit had not provided the ARQ with any document issued by the landlord as the ARQ considered to be required by the definition in Input Tax Credit Information (GST/HST) Regulations of “supporting documentation.” However, Gagnon J accepted the testimony of Axamit’s president that it had provided the landlord’s GST registration number to its external accountants in 2013, i.e., before they prepared its 2015 return and claimed the ITC.
In allowing Axamit’s appeal, he followed the finding in CFI Funding (quoted at para. 45) that s. 169(4) “simply provides that the registrant must have obtained the prescribed information in a form that will allow the ITCs to be determined” and that “[h]ow that information is obtained does not matter.”
In indicating that this finding was not altered by s. 223(2), Gagnon J stated (at para. 54):
[S]ubsection 223(2) does not add a condition to the provisions of ETA paragraph 169(4)(a). The application of that subsection is subject to the discretion of the purchaser. This provision does not therefore apply in all circumstances. It is a means by which a recipient can induce its supplier to provide information in support of its ITC claim. Failure by the supplier to cooperate exposes it to penalties under the ETA. The recipient is not required to exercise the right under subsection 223(2).
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Excise Tax Act - Regulations - Input Tax Credit Information (GST/HST) Regulations - Section 2 - Supporting Documentation | the GST registration number need not be set out in a document issued to the ITC claimant by the supplier | 303 |
| Tax Topics - Excise Tax Act - Section 169 - Subsection 169(4) | unnecessary that the GST registration number be set out in a document issued by the supplier | 191 |
Agence du revenu du Québec v. 9141-5315 Québec Inc., 2017 QCCQ 12233
A Revenue Quebec inspector purchased food at the Tim Hortons restaurant of the accused and the cashier did not provide him with a receipt. The accused was charged for failure to comply with s. 350.51 of the Quebec Sales Tax Act, which provided:
If the operator of an establishment providing restaurant services makes a taxable supply of a meal (other than a zero-rated supply) in the course of operating the establishment, the operator shall prepare an invoice containing prescribed information, provide the invoice (except in the cases and conditions prescribed) to the recipient without delay after preparing it and keep a copy of the invoice.
In finding that the accused had established a due diligence defence, Costom JCQ stated (at paras. 23, 24, 29, 32, TaxInterpretations translation):
Clear directives were provide to all personnel to underline the importance of respecting the obligation to provide customers with their invoice.
[A] notice was posted in the employees’ room, which referred to that obligation. Furthermore, there were notices to that effect beside each of the two cash registers. Finally, there was a pop-up on the screen for each transaction which reminded yet again the employees that they were required to provide the customer with an invoice.
[A] document … had to be signed by each of the employees, confirming that they were familiar with the obligation… .
All these measures have satisfied the Court that the accused was not simply content to inform its employees of the obligation to provide customers with their invoice, but that it had put into effect a system of control and supervision of the application of this directive.
She also referred (at para. 35) to the potential disciplinary measures for non-complying employees.