Words and Phrases - "tax"
References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 S.C.R. 175
The majority found that the fuel charge and excess emissions charges imposed under the Greenhouse Gas Pollution Pricing Act, Part 5 (the “GGPPA”) of the Budget Implementation Act, 2018, No. 1 are constitutionally valid on the basis of coming within the national concern branch of the federal peace, order and good government (POGG) power. In this regard, it stated (at paras. 167, 181-183 and 198):
Canada has adduced evidence that clearly shows that establishing minimum national standards of GHG [greenhouse gas] price stringency to reduce GHG emissions is of sufficient concern to Canada as a whole that it warrants consideration in accordance with the national concern doctrine. …
[P]rovincial inability is established in this case.
… First, the provinces, acting alone or together, are constitutionally incapable of establishing minimum national standards of GHG price stringency to reduce GHG emissions. …
Second, a failure to include one province in the scheme would jeopardize its success in the rest of Canada. …
Moreover, the matter’s impact on the provinces’ freedom to legislate and on areas of provincial life that would fall under provincial heads of power is qualified and limited.
In addressing Ontario’s argument “that the fuel and excess emission charges imposed by the GGPPA do not have a sufficient nexus with the regulatory scheme to be considered constitutionally valid regulatory charges” (para. 212), the majority first noted that “[t]o be a regulatory charge, as opposed to a tax, a governmental levy with the characteristics of a tax must be connected to a regulatory scheme” (para. 213), and then found (at para. 216) that to establish such nexus, there was no requirement that “the revenues that are collected be used to further the purposes of the regulatory scheme,” and that:
Where, as in the instant case, the charge itself is a regulatory mechanism that promotes compliance with the scheme or furthers its objective, the nexus between the scheme and the levy inheres in the charge itself.
And at para. 219:
Ontario does not assert, nor would such an assertion be supportable, that the levies in this case amount to disguised taxation. The GGPPA as a whole is directed to establishing minimum national standards of GHG price stringency to reduce GHG emissions, not to the generation of revenue.
19 January 2019 Interpretation 165888
CRA indicated that the s. 123(1) definition of tax “is interpreted by it to include only amounts of tax that are actually payable under Part IX, such as tax under subsections 165(1) and (2),” so that “an amount paid in error as or on account of tax is not tax for GST/HST purposes.” Thus, in its view, such tax paid in error does not go into elements A and F of the special attribution method formula in s. 225.2(2), nor is a refund of the tax paid in error deducted under G of the formula as a refund of “tax under” e.g. ETA s. 165(1).
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Excise Tax Act - Regulations - Selected Listed Financial Institutions Attribution Method (GST/HST) Regulations - Section 46 - Paragraph 46(a) - Element G - Subparagraph (iii) | refund of tax paid in error not included in refunded tax referred to in G | 240 |
| Tax Topics - Excise Tax Act - Section 263.01 - Subsection 263.01(1) | tax paid in error was not tax that was subject to the s. 263.01 restriction | 219 |
| Tax Topics - Excise Tax Act - Section 225.2 - Subsection 225.2(2) | tax paid in error not included in A and F of formula | 287 |
GST/HST Memorandum 13.5 Non-creditable Tax Charged January 2017
No s. 259 rebate for amounts paid in error
113. Under subsection 261(1), a PSB may receive a rebate if,
- it paid or remitted an amount as or on account of, or that was taken into account as, tax or net tax that it should not have paid or remitted, or that was more than it had to pay or remit; or
- it paid an amount as penalty, interest, or any other similar obligation that was not payable or remittable.
114. GST/HST paid in error is not "tax", which is defined in subsection 123(1) as tax payable under Part IX. Therefore, GST/HST paid in error cannot be included in the calculation of non-creditable tax charged. As such, there is no non-creditable tax charged in respect of property or services where GST/HST was paid in error in respect of the supply, importation, or bringing into a participating province of the property or service. If a PSB has paid or remitted an amount as or on account of tax in error, it cannot claim a PSB rebate to recover this amount, rather it must claim a rebate under section 261.
Urbandale Realty Corp. v. Minister of National Revenue, 97 DTC 5353, [1997] 3 C.T.C. 6 (FCTD)
Subsection 18(2) only limited deductions otherwise available and did not establish that property taxes that the taxpayer was unable to deduct under section 9 due to the application of the matching principle, were deductible.
Dubé J. found that a tax is a levy that is "(1) enforceable by law; (2) imposed under the authority of a legislature; (3) imposed by a public body and (4) for a public purpose". (p. 5357)
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - Section 18 - Subsection 18(1) - Paragraph 18(1)(a) - Timing | 107 |
Meyer v. The Queen, 2004 DTC 2393, 2004 TCC 199 (Informal Procedure)
The taxpayer, who was a U.S. citizen resident in Canada, did not claim treaty benefits when filing his U.S. return, with the result that his U.S.-source pension income was subject to U.S. income tax at graduated rates rather than the treaty-reduced rate of 15%.
In finding that the excess over 15% did not qualify as a tax, Hershfield J. noted that where the taxpayer has refused to establish that a payment was not an error and refused to correct the error, such overpayment does not qualify as a "tax". It also was appropriate for the Agency to compute the overpayment on the basis that the same rate of graduated U.S. income tax was applicable to both the taxpayer's pension income and employment income.
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Treaties - Income Tax Conventions - Article 24 | overpayment of U.S. tax not U.S. tax | 148 |
| Tax Topics - Treaties - Income Tax Conventions - Article 26 | 85 |
Yates v. The Queen, 2001 DTC 761 (TCC) (Informal Procedure)
Contributions paid by the taxpayer (a former resident of the U.K. and a dual citizen of Canada and the U.K.) to the U.K. Inland Revenue Department in order to maintain rights to a future old age pension in the U.K. did not qualify as non-business income taxes because the payments were made on a voluntary basis. Campbell T.C.J. quoted Lawson v. Interior Tree, Fruit and Committee of Direction, [1931] S.C.R. 357 that "A tax is a levy, enforceable by law imposed under the authority of a legislature imposed by public body and levied for a public purpose".
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Other Legislation/Constitution - Charter (Constitution Act, 1982) - Section 16 | 103 | |
| Tax Topics - Other Legislation/Constitution - Charter (Constitution Act, 1982) - Section 6 | 158 |
Eurig Estate (Re), [1998] 2 S.C.R. 565
Probate fees imposed by Ontario constituted taxes rather than fees given that they were enforceable by law (there being a practical and legal necessity for executors in most instances to obtain letters of probate), levied by a public body (the Ontario Court (General Division)), intended for public purposes (the defraying of costs of court administration in general, and not simply the costs of granting probate) and no nexus existed between the amount of the levy (which was calculated on an ad valorem basis) and the cost of the service for granting letters probate. Moreover, a probate fee was a direct tax because payment of the tax by executors was only made in their representative capacity with the intention that the estate would bear in the burden of the tax. However, the fees were ultra vires under s. 53 of the Constitution Act given that they were not imposed pursuant to a bill that originated in the Ontario legislator and, instead, had only been authorized by the Lieutenant Governor in Council.