Section 262

Subsection 262(1)

See Also

Poirier v. The Queen, 2019 TCC 8

failure to include prescribed information vitiated purported new rental housing rebate application

The appellant applied for the new housing rebate on his purchase of a new condo unit even though he had already agreed to lease it out effective the closing date. When this claim was denied after the two-year deadline in s. 256.2(7)(a), he then applied for the new rental housing rebate and argued that by virtue of s. 32, he should be treated as having applied for it at the same time as he had applied for the new housing rebate. In rejecting this submission, Smith J stated (at para. 23):

Since there was no indication in the New Housing Rebate application that the Property had been rented and no mention of the duration of the rental period, it seems apparent that this was much more than a mere “deviation” and that the Appellant cannot be said to have “complied substantially” with the requirements of subsection 256.2 of the Act.

After quoting s. 262(1), he then stated (paras. 25-27):

It is apparent that Parliament has used very clear and precise language. The wording is quite technical and must be considered “mandatory as opposed to directory:” Chandra v R, 2009 TCC 230, para. 4.

Even if the Court were to accept that it was not necessary to use the “prescribed form” (Form GST524), it would still be necessary to conclude that the “prescribed information” had been filed with the Minister.

In this instance, it is clear that the “prescribed information” required to support the Rental Rebate application was not included with the New Housing Rebate application … .

Locations of other summaries Wordcount
Tax Topics - Excise Tax Act - Section 297 - Subsection 297(1) 12 months to bounce a rebate application was “with all due dispatch” 314
Tax Topics - Excise Tax Act - Section 254 - Subsection 254(2) - Paragraph 254(2)(b) intention to occupy vitiated when agreement to lease the new condo 103
Tax Topics - Excise Tax Act - Section 256.2 - Subsection 256.2(7) - Paragraph 256.2(7)(a) no power to extend 2-year deadline even where new housing rebate mistakenly applied for within 2 years 126
Tax Topics - Statutory Interpretation - Interpretation Act - Section 32 failure to state mention material particulars not cured by s. 32 151
Tax Topics - Excise Tax Act - Section 296 - Subsection 296(2.1) s. 296(2.1)(b) precluded using s. 296(2.1) to overcome the 2-year deadline for claiming the NRRP rebate 302

Subsection 262(2)

Administrative Policy

22 June 2017 Interpretation 180966

where a rebate claimant has underclaimed, it can request an assessment of the claim
Meaning of matter

Does “matter” refer to a claim period or the substance of what is being claimed? CRA stated:

[W]e consider what would give rise to the particular rebate being applied for; in other words, what is the object or matter of the rebate. … In general, any eligible rebate under Division VI will be for all or part of the tax paid or payable in respect of a particular transaction or deemed supply… .

CRA referred to the statement in Fanshawe College, 2006 TCC 652, at para. 58 (foll’d Ottawa Hospital, 2010 TCC 53) that “The word "matter" in section 262…relates to a transaction” – but then stated:

There are instances where a particular transaction can give rise to more than one rebate. As such, there may be two objects (or matters) of reimbursement in respect of a single transaction but there may only be one rebate application for each object or matter. For example, a person may be eligible to claim a new housing rebate for the federal part of the HST payable in respect of new housing as well as a new housing rebate for the provincial part of the HST payable… .

Underclaimed rebate

When a PSB rebate amount is claimed in an incorrect claim period, can CRA reassess and reduce the claim period it was incorrectly claimed in and process a reassessment to add the amount into the correct period? CRA responded:

The legislation, as it currently reads, does not allow a person to file a second PSB rebate application under section 259 for the same claim period to claim missed amounts or to claim differences due to misstated amounts in the initial application [for the prior claim period]. However, CRA could exercise its discretion and reassess the prior rebate claim to add the amount to the PSB rebate claim for the correct claim period.

Alternatively, an applicant can file an objection to the assessment of its initial rebate application requesting that a missed amount be allowed and/or an adjustment be made for a misstated amount. If the time limit for objecting has passed, the person can write in and ask for a reassessment of the rebate claim for the particular claim period. …

As another example, a selected PSB filed a rebate application claiming a PSB rebate of 50% of the non-creditable tax charged in respect of a particular transaction for a particular claim period. It then considers that it could have claimed a rebate of 83% of that non-creditable tax charged and files a second rebate application to claim the 33% difference for that claim period. Under subsection 262(2), the selected PSB is prohibited from filing a second PSB rebate claim for the difference of 33% in respect of that same matter and is also prohibited from filing a second rebate application for the same claim period under subsection 259(6). As noted above, the person can object to the assessment of the initial rebate or ask for a reassessment of that rebate to recover the 33% (if eligible).

Words and Phrases
matter
Locations of other summaries Wordcount
Tax Topics - Excise Tax Act - Section 296 - Subsection 296(2) discretion to assess a previously filed rebate application to increase rebate 88
Tax Topics - Excise Tax Act - Section 296 - Subsection 296(2.1) required inclusion in assessment can include a rebate claim that was underclaimed 162
Tax Topics - Excise Tax Act - Section 297 - Subsection 297(4) interest on missed rebate claim 102
Tax Topics - Excise Tax Act - Section 261.4 - Subsection 261.4(1) - Paragraph 261.4(1)(c) second rebate application accepted for different transaction 145

Subsection 262(3) - Group of Individuals

See Also

Crooks v. The Queen, 2016 TCC 52 (Informal Procedure)

accommodation co-purchaser (for financing purposes) of condo was not a recipient of supply by builder

An agreement for the purchase of a new condo by the individual appellant was amended shortly before closing at the insistence of the mortgage lender (the "Credit Union") to add her (Ms. Richards) as a co-purchaser (with Ms. Richards receiving a 1% ownership interest in the condo at closing). Hershfield J declined to follow Al-Hossain, which suggested that the combined effect of ss. 254(2) and 262(3) was to deny the rebate as a (1%) interest in the condo was supplied to an unrelated person (Ms. Richards) who was not acquiring the condo as a primary residence.

He characterized the amended purchase agreement as instead entailing, at most, a supply of a 1% interest in the property by the appellant to Ms. Richards in consideration for Ms. Richards’s guarantee – and as not resulting in any interest in the condo also being supplied by the builder to Ms. Richards.

In addition, he applied (at para. 44) the “ultimate liability” Bondfield doctrine to find that because the appellant “accepted ultimate liability for payment to the builder in the unlikely event the builder was able to make a case against Ms. Richards,” the appellant was the sole “recipient” of the supply by the builder, so that the ETA s. 123 “recipient” definition deemed the builder to supply the condo solely to the appellant.

Locations of other summaries Wordcount
Tax Topics - Excise Tax Act - Section 254 - Subsection 254(2) - Paragraph 254(2)(a) accommodation co-owner was not supplied her interest directly by the builder 451
Tax Topics - Excise Tax Act - Section 123 - Subsection 123(1) - Recipient “ultimate liability” doctrine indicated an accommodation co-purchaser of condo was not a recipient 301
Tax Topics - General Concepts - Substance the addition of an accommodation co-purchaser (for financing purposes) of condo did not reflect the parties' true intentions 173
Tax Topics - General Concepts - Sham the addition of an accommodation co-purchaser (for financing purposes) of condo might have been a sham if done for tax purposes 131
Tax Topics - Statutory Interpretation - Benefits-Conferring Legislation interpretation to favour conferral of intended benefits 207

Ho v. The Queen, 2015 TCC 10 (Informal Procedure)

new house discount not available under s. 254(2) if group of purchasing individuals included cousin who did not move in

The appellant agreed to purchase a new home (the "Woodbine property"). Around the same time, his cousin ("Kwinson Ho"), cousin's spouse ("Chun Sim Yip"), and cousin's mother entered an agreement to purchase another new home (the "Heenan property").

Having financial problems, the appellant amended his purchase agreement to have the cousin and spouse added as purchasers. The appellant, Kwinson Ho and Chun Sim Yip closed the purchase of the Woodbine property. Kwinson Ho, Chun Sim Yip and Kwinson Ho's mother moved in; the appellant did not.

D'Arcy J rejected the appellant's appeal for the new housing rebate on the Woodbine property, as he was a member of the purchasing group who did not then occupy the property. He stated (at para. 43):

Clause 254(2)(g)(i)(A) as modified by subsection 263(2) does not contain any ambiguities. It clearly states that all of the individuals as a group must occupy the complex as a place of residence.

Subsection 262(1)

Administrative Policy

9 December 2014 Interpretation 165597

rebate form must be signed (or otherwise certified)

An Ontario builder, who submitted multiple applications for the Ontario transitional new housing rebate (OTNHR) using Form RC7000-ON, Ontario Retail Sales Tax (RST) Transitional New Housing Rebate, indicated that the OTNHRs had been assigned to it. However, neither section F, "Certification", nor section G, "Assignment of rebate", of Form RC7000-ON were signed by any of the purchasers. CRA stated:

Where the CRA receives a Form RC7000-ON in respect of the purchase of new housing by an individual and the assignment of that rebate to the builder, sections F and G of Form RC7000-ON must both be signed by the individual. The CRA should not accept that an assignment of the OTNHR has occurred, or pay any amount of a rebate to a supposed assignee, unless both sections F and G are signed by the individual (or there is other evidence of the individual having certified the information in those sections) and the CRA is satisfied as to the validity of the assignment.

Locations of other summaries Wordcount
Tax Topics - Excise Tax Act - Section 256.2 - Subsection 256.2(7) rebate form must be signed (or otherwise certified) 166