R.R.O. 1990, Reg. 466: REFUNDS

 

Fuel Tax Act
Loi de la taxe sur les carburants

R.R.O. 1990, REGULATION 466

REFUNDS

Consolidation Period:  From February 27, 2004 to the e-Laws currency date.

Last amendment: 39/04.

Legislative History: 321/97, 64/99, 39/04.

This Regulation is made in English only.

1. In this Regulation,

“applicant” means a collector, importer, wholesaler or retail dealer who applies for a refund under this Regulation;

“bankruptcy debt” means a debt incurred by a person who subsequently becomes a bankrupt within the meaning of the Bankruptcy and Insolvency Act (Canada);

“debt” means the portion of the sale price of fuel that remains unpaid and owing to an applicant;

“designated time limit” means, in respect of an application for a refund under this section, within four years after,

(a) the last day of the applicant’s fiscal year in which the applicant wrote off the debt as an uncollectible account, if the refund relates to a debt other than a bankruptcy debt or a receivership debt,

(b) the date of filing of the applicant’s claim with the debtor’s trustee in bankruptcy or receiver, as the case may be, if the refund relates to a bankruptcy debt or a receivership debt, or

(c) the date of the loss, destruction, theft or contamination of the fuel, if the refund relates to fuel that was lost, destroyed, stolen or contaminated;

“receiver” includes a receiver and manager;

“receivership debt” means a debt owed by a debtor who is in receivership and whose property is under the control of a receiver;

“sale price” includes, in respect of the sale of fuel, the amount on account of the tax under the Act in respect of the fuel.  R.R.O. 1990, Reg. 466, s. 1; O. Reg. 321/97, ss. 1, 4; O. Reg. 64/99, s. 1.

2. (1) The Minister may allow a refund to an applicant of an amount on account of tax collectible or payable under the Act that has been remitted by the applicant to the Minister, or that has been paid over by the applicant in accordance with the Act for subsequent remittance to the Minister,

(a) if the tax is in respect of fuel sold by the applicant and all or part of the sale price of the fuel has not been paid and has become an uncollectible debt; or

(b) if the tax is in respect of fuel that has been lost, destroyed, stolen or contaminated, and cannot be sold or used by the applicant.  O. Reg. 64/99, s. 2.

(2) Despite subsection (1), no refund is allowed in any of the following circumstances:

1. If any portion of the sale price of the fuel referred to in clause (1) (a) has been assigned by private contract, with or without recourse, other than for security purposes, to a person other than the Minister.

2. If the applicant was not in compliance with legislation requiring licensing with respect to fuel handling at the time of the sale of the fuel referred to in clause (1) (a) or of the loss, destruction, theft or contamination of the fuel referred to in clause (1) (b), as the case may be.

3. If a refund of an amount on account of the tax has previously been made, or the applicant is otherwise entitled under the Act or the regulations to receive or to apply to receive a refund of or an allowance in compensation for the amount on account of the tax.

4. If the applicant and the debtor were not dealing at arm’s length within the meaning of section 251 of the Income Tax Act (Canada) at the time of the sale of the fuel, in the case of fuel referred to in clause (1) (a).

5. If the applicant has not complied with the requirements of this section.

6. If the Minister is not satisfied that,

i. in the case of fuel referred to in clause (1) (a), the debt is uncollectible, or

ii. in the case of fuel referred to in clause (1) (b), the fuel cannot be used or sold by the applicant and compensation referrable to the amount of the refund has not been received by the applicant.

7. If the application for the refund is not made before the end of the designated time limit.  O. Reg. 64/99, s. 2.

(3) The amount of the refund is determined as follows:

1. If all or part of the sale price of fuel sold by the applicant has not been paid and has become an uncollectible debt, other than a receivership or bankruptcy debt, the amount of the refund is equal to that portion of the amount remitted or paid over by the applicant on account of tax with respect to the fuel that the uncollectible debt bears to the total sale price of the fuel.

2. If all or part of the sale price of the fuel sold by the applicant has not been paid and has become a receivership or bankruptcy debt, the amount of the refund is equal to that portion of the amount remitted or paid over by the applicant on account of tax with respect to the fuel that the receivership or bankruptcy debt bears to the total sale price for the fuel.

3. If the fuel has been lost, destroyed, stolen or contaminated, the amount of the refund is equal to the amount remitted or paid over by the applicant on account of tax with respect to the fuel.  O. Reg. 64/99, s. 2.

(4)  If the applicant is not a collector, the applicant may apply for a refund under this section in respect of an uncollectible debt by delivering to the Minister an application for the refund in a form acceptable to the Minister, together with all other information and documents that the Minister requires, including the following:

1. Copies of all invoices for the sale of fuel in respect of which the refund is claimed.

2. Proof satisfactory to the Minister that the amount claimed was remitted to the Minister under the Act or was paid over as required under the Act for remittance to the Minister.

3. A signed statement by the applicant certifying the amount of the debt and certifying that the applicant does not have any right to receive any payment in satisfaction of part or all of the debt from any person other than the debtor or the debtor’s representative.

4. Proof satisfactory to the Minister that all reasonable collection action has been taken to obtain payment of the debt, that the debt is unsecured, that the debt is uncollectible and that the applicant has written off the debt as uncollectible in accordance with generally accepted accounting principles.

5. If the debt is a receivership debt, a signed statement by the applicant certifying that the applicant has filed with the debtor’s receiver a claim in respect of the debt to which the refund relates.

6. If the debt is a bankruptcy debt, a copy of the applicant’s proof of claim in the bankruptcy in respect of the debt to which the application relates, proof satisfactory to the Minister that the proof of claim was not disallowed and proof satisfactory to the Minister that the applicant will not receive payment of the debt from the trustee in bankruptcy or other person.

7. If the debt is a bankruptcy debt or a receivership debt, an assignment to the Minister in a form satisfactory to the Minister of the portion of the debt equal to the amount of the refund claimed.  O. Reg. 64/99, s. 2.

(5) If the applicant is not a collector, the applicant may apply for a refund under this section in respect of fuel that has been lost, destroyed, stolen or contaminated by delivering to the Minister an application for the refund in a form acceptable to the Minister, together with all other information and documents that the Minister requires, including the following:

1. A copy of any settlement by or written confirmation from an insurance company confirming settlement of any claim for the loss with respect to which the refund is being claimed.

2. A copy of any police report made with respect to the loss.

3. A copy of any fire marshal’s report made with respect to the cause of the loss.

4. Proof that the amount claimed was remitted to the Minister under the Act or was paid over in accordance with the Act for remittance to the Minister.  O. Reg. 64/99, s. 2.

(5.1) Despite subsections (4) and (5), the following rules apply to an applicant that is not a collector if the total amount of refunds that will be claimed by the applicant under this section for a calendar year does not exceed $500:

1. The applicant is not required to submit the documents required to be submitted with the application under subsection (4) or (5), as the case may be.

2. The applicant shall retain the documents referred to in paragraph 1 for a period of not less than seven years after the day the application for the refund is made to the Minister and shall produce them at any time during that period at the request of the Minister.  O. Reg. 39/04, s. 1.

(6) If the Minister is satisfied that an applicant, other than a collector, is entitled to a refund under this section, the Minister may pay the refund to the applicant.  O. Reg. 64/99, s. 2.

(7) If the applicant under this section is a collector, the following rules apply:

1. The collector may deliver to the Minister an application for the refund in a form approved by the Minister and may then deduct and retain the amount of the refund from an amount that the collector would otherwise remit to the Minister under the Act.

2. The collector shall retain for subsequent verification by the Minister the material in connection with the refund application that would otherwise be required to be delivered to the Minister by an applicant under subsection (4) or (5) with an application for the refund.

3. If the Minister disallows all or part of the refund, the Minister shall cause to be served on the collector a statement of disallowance under section 13 of the Act.  The collector shall remit to the Minister the amount of the refund disallowed by the Minister, together with interest on the amount at the prescribed rate for the period during which the collector retained the amount.  The collector shall remit that amount with the next return or at any earlier time specified in the statement of disallowance, whether or not an objection to the disallowance is made or an appeal from the disallowance is taken.  O. Reg. 64/99, s. 2.

(8)  For the purposes of paragraph 3 of subsection (7),

“prescribed rate” means the rate prescribed by paragraph 3 of subsection 8 (1.1) of Regulation 465 of the Revised Regulations of Ontario, 1990 (Miscellaneous) made under the Act.  O. Reg. 64/99, s. 2.

3. (1) This section applies if a refund in respect of a debt is made under section 2 and the applicant subsequently receives,

(a) a payment from the debtor; or

b) a payment in satisfaction of all or part of the debt.  O. Reg. 64/99, s. 2.

(2) When the applicant receives a payment, the applicant shall pay to the Minister the portion of the payment that is determined by the Minister to have been paid to the applicant on account of tax payable under the Act.  O. Reg. 64/99, s. 2.

(3) The payment to the applicant shall be allocated, for the purposes of this section, to the applicable sales of fuel in the order of the dates of the applicable sales.  O. Reg. 64/99, s. 2.