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[Updated to November 2, 1999]
Contents
Section | ||
Assessment of related individual and associated corporation transactions | ||
1 (1) In this Act:
"administrator" means the person that the minister designates as the administrator for the purposes of this Act;
"agreement for sale" means a contract for the sale of an interest in land under which the purchaser agrees to pay the purchase price over a period of time, in the manner stated in the contract, and on payment of which the vendor is obliged to transfer the interest in land to the purchaser;
"assessment" includes reassessment;
"child" includes a person who is the stepchild of a parent;
"fair market value" means
(a) for a transaction referred to in paragraph (a) (i) of the definition of "taxable transaction", the amount that would have been paid for the fee simple interest in the land had it been sold at the date of registration of the taxable transaction in the open market by a willing seller to a willing purchaser free of any trust and unencumbered by
(i) a mortgage, debenture, trust deed, hypothecation agreement or any other financial instrument, other than a prescribed instrument, that secures the payment of money or the performance of an obligation,
(ii) a right to purchase under an agreement for sale,
(iii) a judgment for the payment of money,
(iv) the rights of a lien holder under the Builders Lien Act, or
(v) any other prescribed charge,
(b) for a transaction referred to in paragraph (a) (ii) of the definition of "taxable transaction", the fair market value of the life estate, determined in the prescribed manner,
(c) for a transaction referred to in paragraph (a) (iii) or (c) of the definition of "taxable transaction", the fair market value, determined in the prescribed manner, of the lease agreement or of its extension, as the case may be,
(d) for a transaction referred to in paragraphs (a) (iv) and (b) of the definition of "taxable transaction", the fair market value of the fee simple interest in the land that is the subject of the agreement for sale referred to in those paragraphs, free of any trust, determined in accordance with paragraph (a) of this definition,
(e) for a transaction referred to in paragraph (d) of the definition of "taxable transaction", the fair market value of the interest that is being transferred by the transaction, determined in the prescribed manner,
(f) for a transaction referred to in paragraph (e) of the definition of "taxable transaction", the fair market value of the lease agreement, determined in the manner referred to in paragraph (c), but as though the transaction were a lease agreement having a term consisting of the total period referred to in paragraph (e) of the definition of "taxable transaction", or
(g) for a transaction referred to in paragraph (f) of the definition of "taxable transaction", the fair market value of the interest to which the application under section 191 of the Land Title Act relates, as determined in accordance with the provision of this definition that corresponds to the nature of the interest involved;
"industrial improvement" means an industrial improvement as defined in section 20 (1) of the Assessment Act;
"land title office" means a land title office as defined in the Land Title Act;
"lease agreement" means
(a) an agreement by which a leasehold estate is granted or assigned, or
(b) an agreement by which an option to renew or extend the term of a lease is granted,
and includes a lease modification agreement;
"lease modification agreement" means an agreement between a lessor and a lessee that extends the term of the lease;
"parcel" means a parcel as defined in the Land Title Act that has not been subdivided into smaller parcels and that
(a) bears a parcel identifier, or
(b) under land title office practice, is to be assigned a parcel identifier on registration under the Land Title Act of a transfer of the parcel;
"parcel identifier" means a permanent parcel identifier assigned under section 58 of the Land Title Act;
"parent" includes a person who is the stepmother or stepfather of the child, if a stepparent relationship is established
(a) by marriage between the stepparent and the mother or father of the child, or
(b) by the stepparent and the mother or father of the child living together as husband and wife for not less than 2 years although not married to each other;
"related individual" means a spouse, parent, child, grandparent, grandchild, greatgrandparent, greatgrandchild, mother-in-law, father-in-law, grandmother-in-law, grandfather-in-law, greatgrandmother-in-law, greatgrandfather-in-law, daughter-in-law, son-in-law, granddaughter-in-law, grandson-in-law, greatgranddaughter-in-law or greatgrandson-in-law;
"return" means a return in the form provided by the minister;
"spouse" means a person who
(a) is married to another person, or
(b) is living with another person as husband and wife and has lived with that person for a continuous period of at least 2 years;
"tax" means the tax imposed by this Act and the regulations and includes all interest and penalties imposed or that may be imposed under this Act and the regulations;
"taxable transaction" means a transaction
(a) purporting to transfer or grant, by any method including a disposition, an order of a court, including an order absolute of foreclosure, or by the operation of any enactment or law,
(i) an estate in fee simple referred to in section 23 (2) of the Land Title Act,
(ii) a life estate in land,
(iii) a right to occupy land under a lease agreement, or
(iv) a right to
(A) occupy land, or
(B) require the transfer of an estate in fee simple referred to in section 23 (2) of the Land Title Act,
under an agreement for sale,
(b) purporting to transfer a right referred to in paragraph (a) (iv), if an agreement for sale is cancelled or determined in any manner, including
(i) a court order cancelling or otherwise determining the agreement, or
(ii) a quit claim releasing the interest of the purchaser under the agreement,
(c) extending the term of a lease agreement by a lease modification agreement,
(d) prescribed under section 2 (3),
(e) between a lessor and a lessee of land such that, following the transaction, that lessee and any other person, if any, having the right to occupy the land under a lease agreement, will have the right to occupy the land for a period that exceeds 30 years in total, or
(f) that consists of an application under section 191 of the Land Title Act in respect of an amalgamation referred to in section 191 (4) of that Act,
and includes
(g) 2 or more lease agreements or options to lease if
(i) those transactions are in respect of the same land,
(ii) the applications for registration of the transactions are made at a land title office within 6 months of each other,
(iii) each of the transactions provides either a term during which a person is given a right to occupy the land or, in the case of an option to lease, a right to enter into a lease agreement under which a person will be given a right to occupy the land for a term specified in the option to lease, and
(iv) the terms referred to in subparagraph (iii), other than terms provided by a time share ownership plan within the meaning of the Real Estate Act, a time share use plan within the meaning of the Real Estate Act, a sublease or an assignment, exceed 30 years in total;
"taxpayer" means a person liable for payment of tax under this Act;
"transferee" means a person to whom land is transferred under a taxable transaction, and, for the purposes of section 3 (7), includes a person to whom an option to lease referred to in paragraph (g) (iii) of the definition of "taxable transaction" gives a right to enter into a lease agreement under which is given a right to occupy land for a term that is not the same as or included within a term provided by any other of the transactions that comprise the taxable transaction referred to in section 3 (7);
"transferor" means a person who transfers land to a transferee under a taxable transaction.
(2) For the purpose of determining the term of the lease,
(a) the term of the lease includes the cumulative total of all options or rights to renew the lease, and
(b) if the lease is a time share ownership plan or time share use plan under the Real Estate Act, the term of the lease must be determined by adding together the number of calendar years during which the transferee may, for any part of a year, occupy the land.
(3) For the purpose of calculating tax payable under this Act, a person registered in the land title office as the owner of land, other than a person registered only as the owner of a charge, is deemed to be the legal and beneficial owner of a fee simple interest in the land, even if the person holds the land in trust.
1.1 (1) For the purposes of a transaction referred to in paragraph (a) (i), (iii) or (iv) of the definition of "taxable transaction",
(a) if
(i) the transferor is the government, or
(ii) the transfer is between associated corporations within the meaning of section 256 of the Income Tax Act (Canada), and
(b) the land being transferred includes an industrial improvement,
the fair market value of the land with industrial improvements is deemed to be, at the election of the transferee,
(c) the value of
(i) the land without industrial improvements as determined under section 19 of the Assessment Act, and
(ii) the industrial improvements as determined under section 20 of the Assessment Act, or
(d) the value resulting from an appraisal of the land with industrial improvements prepared, at the expense of the transferee, by an appraiser referred to in subsection (2).
(2) For the purposes of subsection (1) (d), any of the following persons may do an appraisal:
(a) a person designated Accredited Appraiser Canadian Institute by the Appraisal Institute of Canada;
(b) a person qualified as an appraiser by the Real Estate Institute of British Columbia.
(3) The appraisal referred to in subsection (1) (d) must value the land with industrial improvements on the basis of the following principles:
(a) the value is to be the value of the unencumbered fee simple interest as at the date of the application to register the taxable transaction;
(b) the valuation must be in conformity with the Uniform Standards of Professional Appraisal Practice and the Canadian Supplement;
(c) the valuation must be the most probable price which the land with industrial improvements would bring in a competitive and open market under all conditions requisite to a fair sale;
(d) the valuation must represent the normal consideration for the land with industrial improvements if sold without special or creative financing or sales concessions granted by anyone associated with the sale;
(e) the valuation must be in accordance with the following assumptions:
(i) the buyer and seller are each acting prudently and knowledgeably;
(ii) the buyer and seller are both motivated to transact;
(iii) a reasonable time is allowed for exposure of the land in the open market;
(iv) there is more than one willing purchaser;
(v) properties or supplies which produce input materials for a facility located on the land continue to supply inputs for their natural life span.
(4) Subsection (1) does not apply to a transaction referred to in paragraph (a) (iii) of the definition of "taxable transaction" if the unexpired term of the lease agreement, including all options to renew, is 30 years or less.
2 (1) Subject to subsection (2), on application for registration of a taxable transaction at a land title office, the transferee must
(a) pay tax to the government in accordance with section 3 or 38, and
(b) file a return, in the prescribed manner, whether or not the taxable transaction is exempt under this Act or the regulations.
(2) If the Crown or a municipality registers a taxable transaction at the land title office on behalf of a transferee, the transferee must pay tax in accordance with section 3 or 38 at the prescribed time and to the person designated in the regulations as the collector of the tax for the purposes of this subsection.
(3) The Lieutenant Governor in Council may prescribe that a transaction that consists of a purported transfer, by a prescribed method of a prescribed interest in land, is taxable under this Act, whether or not that interest is registrable under the Land Title Act.
(4) A regulation under subsection (3) may prescribe
(a) when the liability for the tax arises and when the tax is payable, and
(b) the method by which
(i) returns must be filed, and
(ii) the tax may be remitted and collected.
(5) A transferee who, although entitled to apply, does not apply to register a taxable transaction at a land title office, must, within a prescribed period, file a return and pay tax at the rate set out in section 3 to the person designated in the regulations as the collector of the tax for the purposes of this subsection.
(6) If a transferee is not entitled to register a taxable transaction only because of an agreement between the transferor and transferee that the transaction is not to be registered, the transferee is, for purposes of subsection (5) and section 14 (3) and (4), entitled to register the transaction.
(7) Tax is not payable under subsection (5) if no period to file the return and pay the tax has been prescribed.
(8) A registrar may, without a hearing, refuse to accept an application for registration of a taxable transaction if the registrar has reasonable grounds to believe that the tax relating to the transaction has not been paid or the return required by subsection (1) is incomplete or has not been filed.
3 (1) The tax payable under this Act is
(a) 1% of the first $200 000 of the fair market value of the taxable transaction, and
(b) 2% of the remaining fair market value of the taxable transaction.
(2) If a transferee
(a) applies for registration of a taxable transaction at a land title office, and
(b) within 6 months after the application referred to in paragraph (a) applies for registration of one or more additional taxable transactions respecting the same land,
the rate of tax owing on the taxable transaction referred to in paragraph (b) is to be calculated based on the cumulative total of the fair market value of the taxable transactions referred to in paragraphs (a) and (b) as if all the taxable transactions referred to in paragraphs (a) and (b) were a single taxable transaction.
(3) If
(a) a transferee applies for registration of a taxable transaction at a land title office, and
(b) one or more related individuals of the person referred to in paragraph (a) apply, as transferees, at the same time as or within 6 months after the application referred to in paragraph (a), for registration of one or more taxable transactions respecting the same land for which the transferor is not the person referred to in paragraph (a),
the tax owing on the taxable transactions referred to in paragraphs (a) and (b), in total, is to be calculated based on the total fair market value of the taxable transactions referred to in paragraphs (a) and (b) as if all those taxable transactions were a single taxable transaction, and the transferees referred to in paragraphs (a) and (b) are jointly and severally liable to pay that total tax.
(3.1) In subsections (3.2) to (3.5), words and expressions used have the same meaning as in section 14 (3) (j) and (4) (k) and (k.1).
(3.2) If the exemption set out in section 14 (3) (j) is not available to a transferee only because the condition set out in section 14 (3) (j) (ii) is not fulfilled, the tax payable by the transferee must be calculated as if all of the taxable transactions in relation to a transfer of all of, or a registered ownership interest in, one or more of the smaller parcels created under the subdivision were a single taxable transaction with a fair market value calculated
(a) firstly, by determining the difference between the following 2 percentages by subtracting from the percentage under subparagraph (i) the percentage under subparagraph (ii):
(i) the transferee’s proportionate share, expressed as a percentage, of the fair market value of the smaller parcels, calculated using the fair market values as they were immediately after the subdivision;
(ii) the transferee’s proportionate share, expressed as a percentage, of the fair market value of the original parcel referred to in section 14 (3) (j) (i), calculated using the fair market value as it was immediately before the subdivision, and
(b) secondly, by multiplying the total fair market value of all of the smaller parcels, calculated at the time of the application to register the transfer to the transferee, by the difference determined under paragraph (a), to obtain the fair market value that is subject to tax.
(3.3) If the exemption set out in section 14 (4) (k) is not available to the trustee only because the trustee
(a) transfers all of, or a registered ownership interest in, one or more of the parcels created under the subdivision to one or more transferees, in this subsection called the "third parties", none of whom was a registered owner of one or more of the original parcels immediately before their transfer to the trustee, or
(b) retains all of, or a registered ownership interest in, one or more of the parcels created under the subdivision,
the tax payable by the trustee must be calculated as if the transfer of the original parcels were a single taxable transaction with a fair market value calculated
(c) firstly, by determining the third parties proportionate share, expressed as a percentage, of the fair market value of the parcels created under the subdivision, calculated using the fair market values as they were immediately after the subdivision,
(d) secondly, by determining the proportionate share retained by the trustee, expressed as a percentage, of the fair market value of the parcels created under the subdivision, calculated using the fair market values as they were immediately after the subdivision,
(e) thirdly, by determining the sum of the percentages determined under paragraphs (c) and (d), and
(f) fourthly, by multiplying the total fair market value of the original parcels, calculated using the fair market values as they were immediately before the subdivision, by the percentage determined under paragraph (e), to obtain the fair market value that is subject to tax.
(3.4) If the exemption set out in section 14 (4) (k.1) is not available to an original owner only because the condition set out in section 14 (4) (k.1) (ii) is not fulfilled, the tax payable by the original owner as transferee must be calculated as if all of the taxable transactions in relation to a transfer of all of, or a registered ownership interest in, one or more of the parcels were a single taxable transaction with a fair market value calculated
(a) firstly, by determining the difference between the following 2 percentages by subtracting from the percentage under subparagraph (i) the percentage under subparagraph (ii):
(i) the original owner’s proportionate share, as transferee, expressed as a percentage, of the fair market value of all of the parcels created under the subdivision, calculated using the fair market values as they were immediately after the subdivision;
(ii) the original owner’s proportionate share, expressed as a percentage, of the fair market value of the original parcels referred to in section 14 (4) (k.1) (ii), calculated using the fair market values as they were immediately before the subdivision, and
(b) secondly, by multiplying the total fair market value of all of the parcels created under the subdivision, calculated at the time of the application to register the transfer to the original owner, by the difference determined under paragraph (a), to obtain the fair market value that is subject to tax.
(3.5) Subsections (3.2) to (3.4) do not operate to impose a tax that is greater than the tax that would be payable under this Act without those subsections.
(4) If
(a) a transferee that is a corporation (in this subsection and subsection (5) called the "corporate transferee") applies for registration of a taxable transaction at a land title office, and
(b) one or more corporations associated with the corporate transferee apply, as transferees, at the same time as or within 6 months after the application referred to in paragraph (a), for registration of one or more taxable transactions respecting the same land for which the transferor is not the corporate transferee,
the tax owing on the taxable transactions referred to in paragraphs (a) and (b), in total, is to be calculated based on the total fair market value of the taxable transactions referred to in paragraphs (a) and (b) as if all those taxable transactions were a single taxable transaction, and the transferees referred to in paragraphs (a) and (b) are jointly and severally liable to pay that total tax.
(5) For the purposes of subsection (4), a corporation is associated with a corporate transferee if the corporation and the corporate transferee are associated, within the meaning of section 256 of the Income Tax Act (Canada), on the date that the corporation applies to register a taxable transaction respecting the land referred to in subsection (4) of this section.
(6) The tax owing on a taxable transaction referred to in paragraph (g) of the definition of "taxable transaction" is to be calculated as if
(a) the taxable transaction were a single lease transaction referred to in paragraph (e) of the definition of "taxable transaction", and
(b) the term of the lease transaction were the total of the terms referred to in paragraph (g) (iii) of that definition.
(7) Each transferee under the taxable transaction referred to in subsection (6) is jointly and severally liable to pay the tax owing on that taxable transaction.
4 In this section and in sections 5 to 12
"eligible indebtedness" means, for a property, an indebtedness that
(a) is secured by eligible securities that are registered against the property, and
(b) is at least 70% of the fair market value of the property as at the date on which the application for registration of the eligible transaction is made at a land title office;
"eligible security" means a mortgage or an agreement for sale that
(a) secures financing applied to a transfer effected by an eligible transaction,
(b) is between the transferee and a person who is not a related individual to the transferee, and
(c) has a term of at least one year from the registration date;
"eligible transaction" means, for the purposes of determining the eligibility of a first time home buyer for an exemption under sections 5 to 12, a taxable transaction not referred to in paragraph (f) or (g) of the definition of "taxable transaction", for which an application for registration is made at a land title office after March 23, 1994;
"first time home buyer" means an individual who
(a) is a Canadian citizen or is lawfully admitted to Canada for permanent residence,
(b) continuously maintained that individual’s principal residence in British Columbia throughout a period of not less than one year immediately before the registration date, and
(c) has not previously held a registered interest in land, whether in British Columbia or elsewhere, that constituted the individual’s principal residence;
"principal residence" means the usual place where an individual makes his or her home;
"property" means a parcel of land and the improvements, if any, in respect of which an application is made for
(a) an exemption under section 5 or 6, or
(b) a refund under section 7;
"qualifying property" means a property the fair market value of which does not, on the registration date, exceed the qualifying value of that property;
"qualifying value", in relation to a property, means
(a) $275 000 if the property is located in the Greater Vancouver Regional District, the Central Fraser Valley Regional District, the Dewdney-Alouette Regional District, the Fraser-Cheam Regional District or the Capital Regional District, or
(b) $225 000 if the property is located elsewhere;
"registration date" means, in respect of an eligible transaction, the date on which the application for registration of the eligible transaction is made at a land title office;
"residential improvement" means, in respect of an improvement constructed on and permanently affixed to a property,
(a) the improvement, if it is intended to be a dwelling, or
(b) if only part of the improvement is intended to be a dwelling, that part of the improvement that is intended to be a dwelling.
5 (1) Subject to sections 6 to 12, a transferee who applies for registration of an eligible transaction at a land title office is exempt from the obligation to pay tax under section 2 (1) (a) on that transaction if
(a) the transferee is a first time home buyer,
(b) the transferee applies for an exemption under this section or section 6 by tendering with the application for registration an application for exemption, and
(c) eligible securities securing an eligible indebtedness are tendered for registration against the property with the application for registration of the eligible transaction or within 7 days after the registration date.
(2) An application for exemption under subsection (1) must be in the form required by the minister and must
(a) include a declaration, in the form required by the minister, by which the transferee declares that the transferee is a first time home buyer,
(b) disclose that
(i) eligible securities securing an eligible indebtedness are to be registered against the property on or within 7 days after the registration date, and
(ii) the property is a qualifying property, and
(c) include a consent, in the form required by the minister, by which the transferee consents to the administrator conducting inquiries respecting the transferee that the administrator considers necessary to confirm the qualifications of the transferee for the exemption.
6 (1) If a qualifying property that is the subject matter of an eligible transaction is larger than 0.5 ha in area, a transferee who qualifies for an exemption under section 5 is exempt from the obligation to pay tax under section 2 (1) (a) on that transaction
(a) in respect of that portion of the fair market value of the property that is applicable to the residential improvement in which the transferee establishes a qualifying residence within the meaning of section 8 (2) on the property, and
(b) in respect of that portion of the fair market value of the property, not including improvements, that is equivalent to the ratio of 0.5 ha to the total area of the property.
(2) If a qualifying property not referred to in subsection (1) is the subject matter of an eligible transaction and has improvements on it that are in addition to the residential improvement in which the transferee establishes a qualifying residence within the meaning of section 8 (2), a transferee who qualifies for an exemption under section 5 is exempt from the obligation to pay tax under section 2 (1) (a) on that transaction
(a) in respect of that portion of the fair market value of the property that is applicable to that residential improvement, and
(b) in respect of the fair market value of the property, not including improvements.
7 (1) A transferee entitled to an exemption in respect of an eligible transaction under section 5 or 6 who fails to apply for that exemption on the registration date may, within 18 months after that date, apply to the administrator under subsection (2) for a refund of the tax paid on the registration of the transaction by the transferee.
(2) On receiving an application under subsection (1), the administrator must,
(a) on being satisfied that the transferee would have qualified for an exemption under section 5 or 6 on the registration date, pay out of the consolidated revenue fund a refund of that portion of the amount of tax paid by the transferee that is equivalent to the amount of the exemption to which the transferee would have been entitled had the application for the exemption been made on the registration date, or
(b) if not satisfied that the transferee would have qualified for an exemption under section 5 or 6 on the registration date, refuse the application and provide written notice to the transferee of that refusal under subsection (3).
(3) If an application for a refund under subsection (1) is refused, the administrator must send a letter to the applicant stating the reason for the refusal, and the letter is deemed to be a notice of assessment for the purposes of allowing the applicant to file a notice of objection under section 19.
8 (1) A transferee who has applied for an exemption under section 5 or 6 or a refund under section 7 must
(a) establish a qualifying residence on the property within the meaning of subsection (2) of this section,
(b) ensure that eligible securities securing an eligible indebtedness are registered against the property within 7 days of the registration date, and
(c) ensure that, in the first 12 months after the registration date, the indebtedness secured by eligible securities registered against the property is not reduced by more than,
(i) for a property referred to in paragraph (a) of the definition of "qualifying value", the greater of
(A) $11 000, and
(B) the amount that would reduce that indebtedness to 70% of the fair market value of the property as at the date on which the application for registration of the eligible transaction was made at a land title office, or
(ii) for a property referred to in paragraph (b) of the definition of "qualifying value", the greater of
(A) $9 000, and
(B) the amount that would reduce that indebtedness to 70% of the fair market value of the property as at the date on which the application for registration of the eligible transaction was made at a land title office.
(2) For the purposes of subsection (1) (a), a transferee establishes a qualifying residence on a property if
(a) the property contains a residential improvement on the registration date and the residential improvement is the transferee’s principal residence throughout a period beginning on a date that is not more than 92 days after the registration date and continuing to a date that is not earlier than the first anniversary date of the registration date, or
(b) the property does not contain a residential improvement on the registration date, and, within 12 months after that date,
(i) a residential improvement is constructed on the property,
(ii) the transferee inhabits the residential improvement, as the transferee’s principal residence, between the time it is completed and the first anniversary date of the registration date, and
(iii) the total of the fair market value of the property as at the registration date and the costs incurred to establish the residential improvement does not exceed the qualifying value of the property.
(3) For the purposes of subsection (1) (b), if a transferee, within 12 months after the registration date, replaces all or any of the eligible securities referred to in section 5 (1) (c) with one or more mortgages or agreements for sale, the replacement securities are deemed to be eligible securities securing an eligible indebtedness if each of those securities
(a) is between the transferee and a person who is not a related individual to the transferee,
(b) has a term expiring no earlier than the first anniversary date of the registration date, and
(c) is registered no later than 7 days after the cancellation of the eligible security or eligible securities that it replaces.
(4) Any amount by which the replacement indebtedness referred to in subsection (3) is less than the indebtedness it replaces is deemed to be a reduction of the eligible indebtedness for the purposes of subsection (1) (c).
9 (1) Subject to section 10, a transferee who has obtained an exemption under section 5 or 6 or a refund under section 7 is liable under subsection (2) of this section if and from the time that the transferee
(a) fails or ceases to qualify for an exemption under section 5 (1) (a) or (c),
(b) fails or refuses to comply with section 5 (1) (b) or (2), or
(c) fails, refuses or ceases to comply with section 8.
(2) A transferee referred to in subsection (1) must pay to the administrator as a tax liability the amount of tax that the transferee would have been obliged to pay under section 2 (1) (a) had the transferee not received the exemption or refund.
(3) A transferee not referred to in subsection (1) who has obtained an exemption under section 5 or 6 or a refund under section 7 for an amount greater than the amount to which the transferee is entitled under this Act must pay to the administrator as a tax liability the amount by which the exemption or refund received exceeded the exemption or refund to which the transferee was entitled.
(4) A transferee who has obtained a tax credit under section 3.1 of the Property Transfer Tax Act, S.B.C. 1987, c. 15, in respect of an eligible transaction and who obtains, in respect of the that eligible transaction, an exemption under section 5 or 6 or a refund under section 7, must pay to the administrator as a tax liability the amount of the tax credit that the transferee received.
10 Section 9 (1) and (2) does not apply to a transferee who has obtained an exemption under section 5 or 6 or a refund under section 7 if
(a) the transferee does not comply with section 8 (1) (c) only because
(i) the transferee dies within the first 12 months after the registration date, and
(ii) life insurance proceeds are, under the terms of a contract of life insurance, payable and paid on the death of the transferee to reduce the eligible indebtedness, or
(b) the transferee does not comply with section 8 (2) (a) or (b) only because
(i) the transferee dies before the first anniversary date of the registration date, or
(ii) the property is transferred by the transferee pursuant to a written separation agreement or a court order under the Family Relations Act.
11 (1) In order to secure the amount of the tax liability that a transferee is or may be obligated to pay to the administrator under section 9, the administrator may register against the property in the appropriate land title office a lien form claiming a lien conferred by this section in the same manner that a charge is registered under the Land Title Act.
(2) On registration of a lien form against the property under subsection (1), a lien for the amount of the tax liability referred to in that subsection is created on the property.
(3) The lien created under this section expires on the first anniversary date of the registration date unless the administrator, before the expiration of the lien,
(a) discharges the lien, in which event the lien ceases to exist on the effective date of the discharge, or
(b) registers a renewal of lien in the appropriate land title office in the same manner that a charge is registered under the Land Title Act.
(4) A lien created on the property under subsection (2) or renewed under subsection (3) (b) has priority over all other claims of every person except
(a) the eligible securities, and
(b) any other claims secured by liens, charges or encumbrances registered against the property before the date on which the lien form referred to in subsection (1) was registered to create the lien.
(5) If the administrator registers a lien form in respect of a tax liability under subsection (1) or a renewal of lien under subsection (3) (b) and it is subsequently determined that the amount referred to in the lien form or renewal of lien is different than the amount of the tax liability to which the transferee is or may be obligated to pay to the administrator under section 9, the administrator may correct the amount by
(a) registering a new lien form or renewal of lien in the revised amount, and
(b) discharging the original lien form or renewal of lien,
but for the purposes of subsection (4) the new registration under paragraph (a) is deemed to have been effected at the same time that the lien form that created the lien was registered under subsection (2).
12 A transferee who obtains an exemption under section 5 or 6 or a refund under section 7 must pay to the administrator, in addition to the amount of tax that the transferee is obliged to pay to the administrator under section 9, a penalty equal to that amount of tax if
(a) the transferee is not qualified under section 5 to receive an exemption, and
(b) the administrator determines that the declaration provided by the transferee under section 5 (2) or the application for refund provided by the transferee under section 7 is false or misleading in respect of the matters referred to in paragraph (c) of the definition of "first time home buyer".
13 The return required by section 2 must be certified
(a) if no exemption is claimed, by the transferee or a person with actual authority to certify the return on behalf of the transferee,
(b) if an exemption is claimed and the transferee is an individual, by a transferee or by an agent of the transferee who has personal knowledge of the matters certified, or
(c) if an exemption is claimed and the transferee is a corporation, by a person who has personal knowledge of the matters certified and actual authority to certify the return on behalf of the transferee.
14 (1) In this section:
"family farm" means farm land that
(a) is used, owned and farmed by one individual or by related individuals,
(b) is used, owned and farmed by a family farm corporation, or
(c) for the purpose of an exemption claimed under subsection (3) (c) or (d), was used, owned and farmed by the settlor or the deceased;
"family farm corporation" means a corporation of which the principal activity is farming farm land;
"farm land" means land classified under the Assessment Act as farm land;
"principal residence" means a parcel of land
(a) on which the person in relation to whose residency the exemption under this section is claimed usually resided and used as his or her home,
(b) on which there are improvements that are designed to accommodate and that are used only to accommodate 3 or fewer families,
(c) on which all the improvements are classified under section 19 of the Assessment Act as property used for residential purposes, and
(d) that is not larger than 0.5 ha in area;
"recreational residence" means an interest in a parcel of land if the parcel is one
(a) on which, before the transfer,
(i) an individual transferor resided on a seasonal basis for recreational purposes, or
(ii) if an exemption is claimed under subsection (3) (c) or (d), the settlor or the deceased usually resided on a seasonal basis for recreational purposes,
(b) that has been classified as residential land under the Assessment Act,
(c) that is not larger than 5 ha in area, and
(d) that has a fair market value, determined under paragraph (a) of the definition of "fair market value", of no more than $275 000;
"related individual" means a related individual who is a citizen or a permanent resident of Canada;
"settlor" means, in relation to land held in trust, the person who
(a) contributed the land to the trust estate, or
(b) contributed to the trust estate the assets used to acquire the land,
whether or not that person is the creator of the trust.
(2) For the purposes of this section, a person is considered to have only one principal residence at a time.
(3) If a taxable transaction entitles the transferee, on compliance with the Land Title Act, to registration in a land title office, that transferee is exempt from the payment of tax if the taxable transaction is a transfer within any of the following descriptions:
(a) a transfer from a transferor who is not a trustee referred to in paragraph (c) or (d), to a transferee who is a related individual, if the land transferred is a family farm or a recreational residence;
(b) a transfer from a transferor who is not a trustee referred to in paragraph (c), (d) or (e), to a transferee who is a related individual, if the land transferred has been the principal residence of either the transferor for a continuous period of at least 6 months immediately before the date of transfer or of the transferee for that period;
(c) a transfer from a transferor who is a trustee of a deceased’s estate or of a trust established under a deceased’s will and who is registered in that capacity under the Land Title Act as the trustee of the land transferred to a transferee, if
(i) the transferee is a beneficiary of the estate or trust,
(ii) the deceased and the transferee beneficiary were related individuals at the time of the deceased’s death, and
(iii) immediately before the deceased’s death, the land transferred
(A) was the deceased’s family farm, recreational residence or principal residence, or
(B) had been the transferee’s principal residence for a continuous period of at least 6 months;
(d) a transfer from a transferor who is a trustee of a trust that is settled during the lifetime of the settlor and who is registered in that capacity under the Land Title Act as the trustee of the land transferred, if
(i) the transferee is a beneficiary of the trust,
(ii) the settlor of the trust and the transferee beneficiary are related individuals, and
(iii) the land transferred is a family farm or a recreational residence or was the principal residence of either the settlor for a continuous period of at least 6 months immediately before the date of transfer or of the transferee beneficiary for that period;
(e) a transfer from a transferor who is a trustee of a trust that is settled during the lifetime of the settlor and the transferor is registered in that capacity under the Land Title Act as the trustee of the land transferred, if
(i) the transferee is a beneficiary of the trust,
(ii) the settlor of the trust and the transferee beneficiary are related individuals,
(iii) the land transferred was the principal residence of the settlor, and
(iv) between August 18, 1990 and the date of the transfer, the transferor as trustee of the trust was continuously registered as the trustee of the then current principal residence of the settlor and, for the purposes of this paragraph, continuity is deemed not to have been broken if the transferor was not so registered for a period of one month or less but is deemed to have been broken if the transferor was not so registered for a period greater than one month,
(f) a transfer from a transferor to a transferee, if the land transferred is a family farm, the transferee is a family farm corporation and either
(i) the transferor is the sole shareholder or is a related individual to all the shareholders of the family farm corporation, or
(ii) the transferor is a shareholder of the family farm corporation and all the remaining shareholders of the family farm corporation, if any, are related individuals of the transferor;
(g) a transfer from a transferor to a transferee, if the land transferred is a family farm, the transferor is a family farm corporation and either
(i) the transferee is the sole shareholder or is a related individual to all the shareholders of the family farm corporation, or
(ii) the transferee is a shareholder of the family farm corporation and all the remaining shareholders of the family farm corporation, if any, are related individuals of the transferee;
(h) a transfer from a transferor to a transferee who is a spouse or former spouse of the transferor and the transfer is made pursuant to a written separation agreement or a court order under the Family Relations Act;
(i) a transfer that changes a joint tenancy to a tenancy in common, if
(i) the persons owning the interest in the land are the same before and after the transfer, and
(ii) each person owning an interest in the land after the transfer has an interest in the land equal to that owned by the other owners;
(j) a transfer if
(i) a parcel, in this subsection called the "original parcel", is subdivided into smaller parcels and the transferee of all of, or a registered ownership interest in, one or more of those smaller parcels was one of the registered owners of the original parcel immediately before its subdivision, and
(ii) the transferee’s proportionate share of the fair market value of those smaller parcels, calculated using the fair market values as they were immediately after the subdivision, does not exceed the transferee’s proportionate share of the fair market value of the original parcel, calculated using the fair market value as it was immediately before the subdivision;
(k) a transfer by which land reverts, escheats or is forfeited to the Crown or by which land that has reverted, escheated or been forfeited to the Crown is returned;
(l) a transfer made in accordance with a registered agreement for sale, if the transferee is
(i) the purchaser under the agreement and the tax in respect of the agreement has been paid, or
(ii) the assignee of the purchaser under the agreement and the tax in respect of the assignment has been paid;
(m) a transfer by operation of law to the survivor of a joint tenancy of the land consequent on the death of a joint tenant of the land;
(n) a transfer to the trustee in bankruptcy of land forming part of the estate of a bankrupt;
(o) a transfer from the trustee in bankruptcy to the bankrupt of land forming part of the estate of the bankrupt, if no consideration for the transfer is paid by or on behalf of the transferee and a declaration to that effect is made by the transferee and the transferor in the return filed under section 2;
(p) a transfer from the trustee in bankruptcy to the spouse or former spouse of the bankrupt of land forming part of the estate of the bankrupt, if
(i) the land transferred was the principal residence of the bankrupt immediately before the date of the bankruptcy, and
(ii) no consideration for the transfer is paid by or on behalf of the transferee and a declaration to that effect is made by the transferee and the transferor in the return filed under section 2;
(q) a transfer to a person in his or her capacity as personal representative, if the land transferred is part of the deceased’s estate;
(r) a transfer of a life estate, if the transferee of that life estate transferred the fee simple estate in the same land to the transferor of the life estate in a concurrent transaction;
(s) a transfer to a regional district, municipality, an improvement district, the Okanagan Basin Water Board, the Islands Trust, a board of school trustees as defined in the School Act, a francophone education authority as defined in the School Act, a water users community as defined in the Water Act, a regional hospital district, a library board as defined in the Library Act, a greater board as defined in the Municipal Act, or any board incorporated by letters patent that provides services similar to those provided by a greater board;
(t) a transfer to the government in accordance with a bylaw under section 305.2 [exchange of dedicated land] or 525 (3) [transfer of title to highways] of the Municipal Act;
(u) a transfer to the Provincial Capital Commission, if the land transferred is used solely for park purposes;
(v) a transfer if the government is the transferor, and the transaction has been designated by the minister as exempt from payment of tax under this Act.
(4) If a taxable transaction entitles the transferee, on compliance with the Land Title Act, to registration in a land title office, that transferee is exempt from the payment of tax if the taxable transaction is a transfer within any of the following descriptions:
(a) a transfer to a board or council as defined by section 1 of the Health Authorities Act for the purposes of that Act;
(b) a transfer to a "registered charity" as defined by section 248 (1) of the Income Tax Act (Canada), if the land being transferred will be used for a charitable purpose;
(c) a transfer to a "designated educational institution" as defined in paragraph (a) of the definition of "designated educational institution" in section 118.6 (1) of the Income Tax Act (Canada) where the land being transferred will be used for an educational purpose;
(d) a transfer to a corporation established under the University Foundations Act or to the corporation established under the Trinity Western University Foundation Act;
(e) a transfer to the corporation established under Part 3 of the Hospital Act;
(f) a transfer to the corporation continued under section 2 of the Health Research Foundation Act;
(g) a transfer to the corporation established under the Library Foundation of British Columbia Act;
(h) a transfer to the corporation established under the Cultural Foundation of British Columbia Act;
(i) a transfer to an educational institution that receives grants under the Independent School Act, if the land being transferred will be used for an educational purpose;
(j) a transfer to the corporation or the committee established under the First Peoples Heritage, Language and Culture Act;
(k) a transfer of 2 or more adjacent parcels, in this subsection called the "original parcels", from their registered owners, in this subsection called the "original owners", to a person who is registered under the transfer as a trustee under the Land Title Act, if
(i) the transfer is to facilitate the subdivision of the original parcels, and
(ii) after the registration under the Land Title Act of the plan of subdivision, the trustee transfers all of the parcels created under the subdivision to the original owners or to any one or more of them;
(k.1) a transfer of all of, or a registered ownership interest in, one or more of the parcels created under a subdivision described in paragraph (k), if
(i) the transfer is from the trustee referred to in paragraph (k) to any of the original owners, and
(ii) that original owner’s proportionate share of the fair market value of the parcels created under the subdivision, calculated using the fair market values as they were immediately after the subdivision, does not exceed that original owner’s proportionate share of the fair market value of the original parcels, calculated using the fair market values as they were immediately before the subdivision;
(l) a transfer of the vendor’s interests under an agreement for sale, if the transferee is not the purchaser under the agreement for sale;
(m) a transfer to a mortgagee, if the mortgagee was the immediately preceding registered owner of the land;
(n) a transfer referred to in paragraph (b) of the definition of "taxable transaction", if the transferee was the original vendor under the agreement for sale;
(o) a transfer of a lease agreement, except a lease modification agreement, with a term of 30 years or less remaining as at the date of registration of that lease agreement;
(p) a transfer from a settlor to the Public Trustee or a trustee that is a trust company under the Financial Institutions Act authorized to carry on trust business by a business authorization issued under that Act, if
(i) the settlor is a natural person,
(ii) the settlor was the registered owner of the fee simple interest in the land immediately before the transfer to the trustee,
(iii) the administration of the trust estate is for the sole benefit of the settlor, and
(iv) on the termination of the trust the land reverts to the settlor or to the executor or administrator of the settlor’s estate;
(p.1) a transfer from a trustee of a trust referred to in paragraph (p) to the settlor of the land being transferred;
(q) a transfer from a transferor to a transferee, each of whom is registered under the Land Title Act as a trustee of the land, if
(i) the change in trustee is for reasons that do not relate, directly or indirectly, to a change in beneficiaries or in a class of beneficiaries or to a change in the terms of the trust, and
(ii) the transferor and the transferee make a declaration to that effect in the return filed under section 2;
(r) a transfer from the Director, the Veterans Land Act (Canada), to a veteran or the spouse, widow or widower of a veteran;
(s) a transfer to the Crown in right of Canada or to a corporation listed in Schedule 1 of the Federal-Provincial Fiscal Arrangements and Federal Post-Secondary Education and Health Contributions Act (Canada);
(t) a transfer for the purpose of reconveying property
(i) that was conveyed in error, or
(ii) in respect of which an error was made in the description or survey under which title to the property was registered,
if the administrator is satisfied the transfer was made for that purpose and a copy of the administrator’s certificate to that effect is attached to the return filed under section 2;
(u) a transfer referred to in paragraph (f) of the definition of "taxable transaction", if
(i) the amalgamation was effected under sections 247 to 251 of the Company Act, under sections 181 to 186 of the Canada Business Corporations Act (Canada) or under similar provisions of an enactment of Canada or of a province, and
(ii) a certificate of amalgamation is attached to the return filed under section 2 by the continuing corporation;
(v) a transfer consisting of a lease, sublease or right to occupy premises, if it is coupled with a concurrent transfer of an estate in fee simple to the same land or a right to purchase with respect to the same land and
(i) the lessee, sublessee or occupant, as the case may be, and the transferee of the fee simple estate are the same person, and
(ii) tax was paid on the transfer of the fee simple estate or the right to purchase.
(5) For the purposes of an exemption under subsection (3) (c) or (d), no more than one recreational residence may be claimed in respect of the deceased’s estate or, as the case may be, the trust referred to in paragraph (d) of that subsection.
15 (1) If a taxable transaction does not qualify for exemption in relation to a principal residence under section 14 (3) (b) to (e) only because there are improvements on the parcel that are not classified under section 19 of the Assessment Act as property used for residential purposes, the taxable transaction is exempt to the extent provided in subsection (2).
(2) A taxable transaction that is exempt under subsection (1)
(a) is exempt in respect of the fair market value, determined in the prescribed manner, of the interest in those improvements transferred that are improvements classified under section 19 of the Assessment Act as property used for residential purposes, and
(b) is exempt in respect of the fair market value, determined in the prescribed manner, of the land transferred not including improvements.
(3) If a taxable transaction does not qualify for exemption in relation to a principal residence under section 14 (3) (b) to (e)
(a) only because the parcel of land involved is larger than 0.5 ha in area, or
(b) because the parcel of land involved is larger than 0.5 ha in area and because there are improvements on the parcel that are not classified under section 19 of the Assessment Act as property used for residential purposes,
the taxable transaction is exempt to the extent provided in subsection (4).
(4) A taxable transaction that is exempt under subsection (3)
(a) is exempt in respect of the fair market value, determined in the prescribed manner, of the interest in those improvements transferred that are improvements classified under section 19 of the Assessment Act as property used for residential purposes, and
(b) is exempt in respect of that portion of the fair market value, determined in the prescribed manner, of the land transferred, not including improvements, that is equivalent to the ratio of 0.5 ha to the total area of the parcel.
16 (1) In this section, "conservation covenant" means a covenant in favour of the Crown that
(a) is registered under subsection (2), and
(b) includes
(i) one or more provisions described in section 219 (4) (b) of the Land Title Act,
(ii) provisions that the covenant will not be amended or discharged without the approval of the Lieutenant Governor in Council, and
(iii) any other provision prescribed by regulation for inclusion.
(2) If the Lieutenant Governor in Council approves, a covenant referred to in subsection (1) may be registered against the title to land in the same manner as a covenant under section 219 (1) of the Land Title Act and, when registered, it is deemed to be a covenant under that section.
(3) A taxable transaction is exempt from the payment of tax to the extent provided in subsection (4) if, at the time of registration of the taxable transaction, a conservation covenant is registered against the title to the land to which the taxable transaction relates.
(4) A taxable transaction to which subsection (3) applies is exempt to the extent of the fair market value, determined in the prescribed manner, of the interest being transferred that is subject to the conservation covenant.
(5) The administrator may, by certificate attached to the return filed under section 2, postpone for up to 6 months the time at which tax would otherwise be payable, if satisfied that a conservation covenant is intended to be registered within that time against the title to the land to which the taxable transaction relates.
(6) If, within one year after a taxable transaction is registered, a conservation covenant is registered against the title to the land to which the taxable transaction relates, the transferee may apply to the administrator within that one year period for a refund under subsection (7).
(7) After receiving an application under subsection (6) and on being satisfied that the taxable transaction would have been exempt from tax had the conservation covenant been registered at the time of the taxable transaction, the administrator must
(a) pay out of the consolidated revenue fund a refund of the tax paid equivalent to the amount of exemption to which the transferee would have been entitled had the conservation covenant been registered at the time of the taxable transaction, or
(b) send a letter to the transferee stating the reasons for the refusal, and the letter is deemed to be a notice of assessment for the purposes of allowing the transferee to file a notice of objection under section 19.
(8) If a conservation covenant is discharged after the taxable transaction has been exempt from taxation because of this section or after the transferee has received a refund under this section, the person registered in the land title office at the time of discharge as owner of the fee simple interest in the land against which the covenant was registered must, at the time of discharge,
(a) file a return referred to in section 2 (1), and
(b) pay to the government, as tax payable under this Act, an amount equal to the tax that would be payable at that time were the title to the land being transferred to that person as transferee in a taxable transaction referred to in paragraph (a) (i) of the definition of "taxable transaction".
(9) A registrar may, without a hearing, refuse to accept an application for discharge of a conservation covenant if there are reasonable grounds to believe
(a) that the Lieutenant Governor in Council has not approved the discharge,
(b) that the return required by subsection (8) has not been filed, or
(c) that the tax imposed by subsection (8) has not been paid.
17 The administrator may investigate whether
(a) a return is accurate,
(b) the tax has been paid as required by this Act and the regulations, and
(c) a provision of this Act or the regulations has been contravened.
18 (1) The administrator may, on information available to the administrator, make a determination of fair market value or tax owing.
(2) If the administrator determines that the correct amount of tax has not been paid, the administrator must make an assessment and mail a notice of assessment to the transferee.
(3) The notice of assessment must state
(a) the determination of the fair market value made by the administrator,
(b) the total amount of tax payable,
(c) the amount of tax paid,
(d) the balance owing or overpaid, and
(e) the date of the notice of assessment.
(4) The transferee assessed must pay to the administrator the amount of tax owing as set out in the notice of assessment within 30 days after the date shown on the notice of assessment.
(5) Except as provided in this Act, the administrator must issue the notice of assessment within one year after
(a) the date that the transaction was registered in the land title office, or
(b) the expiry of the prescribed period under section 2 (5),
as the case may be.
(6) If an exemption has been applied for under section 5 or 6 or a refund has been applied for under section 7, the assessment may be issued within 24 months after the application for registration of the eligible transaction relating to the exemption or refund.
(6.1) If an exemption has been applied for under section 14 (3) (j), the assessment must be issued within 24 months after the date of the first transfer after the subdivision.
(6.2) If an exemption has been applied for under section 14 (4) (k) or (k.1), the assessment must be issued within 24 months after the date of the last of the transfers to the trustee to facilitate the subdivision.
(7) Subject to being varied or vacated on objection or by reassessment, an assessment is valid and binding despite any error, defect, omission or error in procedure.
(8) The amount of tax assessed is payable whether or not an objection to the assessment is made.
(9) Interest on the amount of tax owing to the government is payable and must be calculated, starting on the 30th day after the date shown on the notice of assessment, at the rate prescribed under section 20 (1) of the Financial Administration Act calculated in the manner prescribed in the regulations.
19 (1) A person who objects to an assessment made under section 18 must mail a notice of objection to the minister within 90 days after the date shown on the notice of assessment.
(2) A person who objects to a refusal by the administrator to grant an exemption under section 5 or 6 or to pay a refund under section 7 or to the imposition of a penalty under section 12 must mail a notice of objection to the minister within 90 days after the date shown on the notice of assessment.
(3) The notice of objection must contain the reasons for the objection and must state all relevant facts, including an estimate of the fair market value if the person objecting considers that estimate to be relevant to the objection.
(4) On receipt of the notice of objection and of the relevant information from the office of the administrator, the minister must decide the amount of the penalty or tax owing or the refund payable, as the case may be.
(5) The minister must deliver to the person who objected to the assessment made under section 18 a notice of the minister’s decision under subsection (4) of this section and, if the minister’s decision is to vary the assessment, the administrator must deliver a notice of assessment reflecting the variation to the person who objected.
(6) The time limit for mailing a notice of objection under subsection (1) may be extended by the minister if
(a) an application for extension is made in respect of that notice before the expiry of the time allowed under subsection (1) for mailing the notice, and
(b) the application contains the reason for the extension and specifies the period of time applied for.
20 (1) If
(a) tax imposed on taxable transactions in accordance with section 3 (3) or (4) has been paid, and
(b) the administrator is satisfied that a taxable transaction referred to in section 3 (3) (b) or (4) (b) was made for purposes unrelated to the imposition of taxes under this Act,
the administrator may, on application, make an assessment of the tax imposed on the taxable transactions referred to in section 3 (3) or (4), as the case may be, in accordance with subsection (3).
(2) An application under subsection (1) must be made within 6 months after the date that the transaction referred to in subsection (1) (b) was registered in the land title office.
(3) On an assessment under subsection (1),
(a) the tax payable in respect of the taxable transaction referred to in subsection (1) (b) must be calculated in accordance with section 3 (1) based on the fair market value of the interest transferred by that taxable transaction, and
(b) the tax payable in respect of the other taxable transaction or transactions in respect of which the tax referred to in subsection (1) (a) was paid must be calculated without reference to the taxable transaction referred to in subsection (1) (b).
(4) If the tax payable on assessment under subsection (1) is less than the amount actually paid, the administrator must, in accordance with the Financial Administration Act, refund out of the consolidated revenue fund, jointly to the transferees liable under section 3 (3) or (4), as the case may be, for the tax paid, the overpaid tax including any interest relating to the amount overpaid calculated in the manner prescribed in the regulations.
(5) If the administrator refuses an application for an assessment under subsection (1), the administrator must send a letter to the applicant stating the reasons for the refusal, and the letter may be treated as a notice of assessment for the purposes of allowing the applicant to file a notice of objection under section 19.
21 (1) A decision of the minister under section 19 may be appealed to the Supreme Court by way of an originating application.
(2) The Rules of Court relating to originating applications apply, but Rule 49 does not apply.
(3) A petition must be filed in the court registry within 90 days after the date on the minister’s notice under section 19 (5) of the minister’s decision.
(4) Within 14 days after the filing of the petition under subsection (3), it must be served on the Crown in accordance with section 8 of the Crown Proceeding Act and the Crown must be designated "Her Majesty the Queen in right of the Province of British Columbia".
(4.1) An appeal under this section is a new hearing that is not limited to the evidence and issues that were before the minister.
(5) The court may dismiss the appeal, allow the appeal, vary the decision from which the appeal is made or refer the decision back to the administrator for reconsideration.
(6) An appeal lies from a decision of the court to the Court of Appeal with leave of a justice of the Court of Appeal.
22 Within the time referred to in section 21 (3), a person may, instead of filing a petition in a court registry, serve a notice on the administrator that the person waives the right to appeal to the Supreme Court under section 21 and requires the assessment to be decided by arbitration in accordance with the regulations.
23 (1) If a person has paid tax under this Act pursuant to a notice of assessment issued under section 18 (3) and, as a result of
(a) a decision of the minister under section 19 (4),
(b) an order of the court under section 21 (5), or
(c) a decision by an arbitrator under section 22,
the tax payable is less than the amount actually paid, the administrator must, in accordance with the Financial Administration Act, refund out of the consolidated revenue fund the overpaid tax including any interest relating to the amount overpaid calculated in the manner prescribed in the regulations.
(2) If, after a person has paid tax under section 2 (1) of this Act,
(a) the person withdraws the application for registration, or
(b) the application for registration is rejected,
the administrator must, in accordance with the Financial Administration Act, refund out of the consolidated revenue fund the overpaid tax including any interest relating to the amount overpaid calculated in the manner prescribed in the regulations.
24 (1) Before taking proceedings under this Act or otherwise for the recovery of taxes, the administrator must give notice to the taxpayer of the intention to enforce payment.
(2) Failure to give notice under subsection (1) does not affect the validity of proceedings taken for the recovery of taxes or money to be collected as taxes under this Act.
25 The amount of taxes that are due and payable under this Act may be recovered by action in any court as a debt due to the government.
26 (1) If a person defaults in the payment of taxes that are due and payable under this Act, the administrator may issue a certificate stating the amount due, the amount remaining unpaid, including interest, and the name of the person by whom it is payable, and may file the certificate with a district registrar of the Supreme Court and when filed the certificate has the same force and effect, and all proceedings may be taken on it, as if it were a judgment of the court for the recovery of a debt for the amount stated in the certificate against the person named in it.
(2) Even though a person has mailed a notice of objection under section 19 or appealed to the Supreme Court under section 21 or applied for arbitration under section 22, the person must pay the amount of tax owing as set out in the notice of assessment prepared by the administrator under section 18 or 19 (5), and the administrator may exercise the administrator’s powers to collect the amount owing if the person fails to pay the amount as provided by this Act.
27 (1) If the administrator has knowledge or suspects that a person is or is about to become indebted or liable to make a payment to a taxpayer, the administrator may demand that the person pay the money otherwise payable to the taxpayer in whole or in part to the government on account of the taxpayer’s liability under this Act.
(2) Without limiting subsection (1), if the administrator has knowledge or suspects that a person is about to
(a) advance money to a taxpayer,
(b) make a payment on behalf of a taxpayer, or
(c) make a payment in respect of a negotiable instrument issued by a taxpayer,
the administrator may demand that the person pay to the administrator on account of the taxpayer’s liability under this Act money that would otherwise be advanced or paid.
(2.1) A demand under this section may be served by
(a) personal service,
(b) registered mail, or
(c) electronic mail or fax.
(3) If under this section the administrator demands that a person pay to the government on account of a taxpayer’s liability under this Act money otherwise payable by that person to the taxpayer as interest, rent, remuneration, dividend, annuity or other periodic payment, the demand
(a) applies to all of those payments to be made by the person to the taxpayer until the liability under this Act is satisfied, and
(b) operates to require payments to the government out of each payment of the amount stipulated by the administrator in the demand.
(4) Money or a beneficial interest in money in a savings institution
(a) on deposit to the credit of a taxpayer at the time a demand is served, or
(b) deposited to the credit of a taxpayer after a demand is served
is money for which the savings institution is indebted to the taxpayer within the meaning of this section, but money on deposit or deposited to the credit of a taxpayer as described in paragraph (a) or (b) does not include money on deposit with, or deposited to the credit of, a taxpayer in the taxpayer’s capacity as a trustee.
(5) A demand under this section continues in effect until
(a) the demand is satisfied, or
(b) 90 days after the demand is served,
whichever is earlier.
(6) Despite subsection (5), if a demand is made in respect of a periodic payment referred to in subsection (3), the demand continues in effect until it is satisfied unless no periodic payment is made or is liable to be made within 90 days after the demand is served, in which case the demand ceases to have effect on the expiration of that period.
(6.1) Money demanded from a person by the administrator under this section becomes payable
(a) as soon as the person is served with the demand, if the person is indebted or liable to make a payment to the taxpayer at the time the demand is served, or
(b) as soon as the person becomes indebted or liable to make a payment to the taxpayer, in any other case.
(7) A person who fails to comply with a demand under this section is liable to pay to the government an amount equal to the amount that the person was required by the demand to pay.
(8) The receipt of the administrator for money paid under this section is a good and sufficient discharge of the original liability to the extent of the payment.
(9) Money paid by any person to the government in compliance with a demand under this section is conclusively deemed to have been paid by that person to the taxpayer.
(10) If a person carries on business under a name or style other than the person’s own name, the demand under this section may be addressed to the name or style under which that person carries on business and, in the case of personal service, the demand is deemed to have been validly served if it was left with an adult person employed at the place of business of the addressee.
(11) If persons carry on business in partnership, the demand under this section may be addressed to the partnership name and, in the case of personal service, the demand is deemed to have been validly served if it was served on one of the partners or left with an adult person employed by the partnership at the place of business of the partnership.
28 (1) All tax, costs and other amounts imposed under this Act are, on registration by the administrator in the proper land title office of a lien form claiming a lien and charge conferred by this subsection, a lien and charge on land the lien is filed against that is owned by the person liable to pay the tax, costs and other amounts, and the lien and charge has priority over charges, encumbrances or claims registered or attaching to the land after the registration of the lien.
(2) The administrator may apply under the Land Title Act to register the lien form in the same manner as a charge is registered.
(3) The lien form is sufficient for registration if it is in the prescribed form and signed by the administrator.
(4) Sections 89 and 90 of the Court Order Enforcement Act apply as if
(a) the judgment debtor was the taxpayer,
(b) the judgment creditor was the administrator,
(c) the judgment was the lien, and
(d) the certificate of judgment was the lien form.
29 (1) In this section, "proceeding" means
(a) an action for the recovery of taxes under section 25,
(b) the filing of a certificate under section 26,
(c) the making of a demand under section 27, and
(d) the registration of a lien under section 28.
(2) A proceeding may be commenced at any time within 7 years after the date on which liability arose for payment of the taxes claimed in the proceeding.
(3) Despite subsection (2), a proceeding that relates to a contravention of this Act or the regulations and that involves willful default or fraud may be commenced at any time.
30 (1) The powers conferred by this Act for the recovery of tax or money collected as tax, may be exercised separately, or concurrently or cumulatively.
(2) The liability of a person for the payment of tax under this Act is not affected by the fact that a fine has been imposed on or paid by the person in respect of a contravention of this Act.
31 (1) A person authorized by the administrator for any purpose related to the administration or enforcement of this Act may
(a) during normal office hours enter into a place where a business is carried on or where anything is done in connection with a business or where business records are or should be kept and inspect the records that relate or may relate to the amount of tax payable under this Act,
(b) examine land described in a transfer or any land an examination of which may, in the person’s opinion, assist in determining the accuracy of a return, information that is or should be in the return or the amount of tax payable under this Act, and
(c) by registered letter or by a demand served personally, require from any person any information or additional information, or the production of any records within any reasonable time the person specifies, if it is reasonable to make the demand in order to determine the liability or possible liability to tax under this Act.
(2) If a record has been inspected or produced under this section, the person by whom it is inspected or to whom it is produced may make or cause to be made one or more copies.
(3) A document certified by the administrator or a person authorized by the administrator to be a copy made under this section is evidence of the nature and content of the original.
(4) A person must not obstruct a person doing anything that he or she is authorized by this section to do.
32 A person who obtains information or records under this Act must not disclose the information or records to another person except as follows:
(a) in the course of administering or enforcing this or another taxation Act;
(b) in court proceedings related to this or another taxation Act;
(c) under an agreement that
(i) is between the government and another government,
(ii) relates to the administration or enforcement of tax enactments, and
(iii) provides for the disclosure of information and records to and the exchange of similar information and records with that other government;
(d) for the purpose of the compilation of statistical information by the government or the government of Canada;
(e) to the British Columbia Assessment Authority.
33 (1) The British Columbia Assessment Authority and a land title office must provide assistance and access to their records to the administrator free of charge.
(2) Each of the following must provide assistance and access to their records to the administrator free of charge for the purpose of assisting the administrator in determining the past and present principal residences of an individual who applies for an exemption under section 5 or a refund under section 7:
(a) the British Columbia Hydro and Power Authority;
(b) the Home Owner Grant Administration Branch of the Ministry of Municipal Affairs;
(c) the Motor Vehicle Branch of the Ministry of Transportation and Highways.
34 (1) A person who fails to pay the tax imposed by this Act and the regulations commits an offence.
(2) A person commits an offence who does any of the following:
(a) makes or participates in, assents to or acquiesces in the making of a false or deceptive statement in a return or record required to be made or provided under this Act or the regulations;
(b) in order to evade remittance of tax owing by that person, destroys, alters, mutilates, secrets or otherwise disposes of a return or record of a transferor or transferee;
(c) in a record or return of a transferor or transferee, makes or assents to or acquiesces in the making of a false or deceptive entry or omits or assents to or acquiesces in the omission to enter a material particular;
(d) willfully, in any manner, evades or attempts to evade compliance with this Act or the regulations or remittance or payment of taxes required by this Act or the regulations.
(3) If a corporation commits an offence under this section, every director, officer, employee or agent of the corporation who authorized, permitted or acquiesced in the offence also commits the offence.
(4) A corporation convicted of an offence under subsection (1) or (2) is liable to a fine equal to a minimum of
(a) the amount of tax not paid or remitted, with interest, plus
(b) an amount not exceeding $50 000.
(5) An individual convicted of an offence under subsection (1), (2) or (3) is liable to
(a) a fine equal to
(i) the minimum of the amount of tax not paid or remitted, with interest, plus
(ii) an amount not exceeding $25 000,
(b) imprisonment for not more than 2 years, or
(c) both fine and imprisonment.
(6) Section 5 of the Offence Act does not apply to this Act or to the regulations.
(7) In a prosecution under this section, the certificate signed by the minister or the authorized person stating the amount of tax and interest is evidence of the amount of tax and interest referred to in subsection (4) (a) or (5) (a) (i).
(8) An information or complaint in respect of an offence under this Act may be for one or more than one offence, and no information, complaint, warrant, conviction or other proceeding in a prosecution under this Act is objectionable or insufficient only because it relates to 2 or more offences.
(9) An action taken under this section does not suspend or affect any remedy for the recovery of any tax or amount payable under this Act.
(10) Fines collected under this Act must be paid to the minister on behalf of the government.
35 An information or complaint in respect of an offence against this Act must be laid or made within one year of the time when the matter of the information or complaint arose.
36 For the purpose of any proceeding taken under this Act or the regulations, a certificate signed by the administrator is evidence of the facts necessary to establish compliance with this Act and the regulations by the minister and the administrator.
37 (1) The Lieutenant Governor in Council may make regulations considered necessary or advisable for the purpose of carrying out this Act according to its intent and for supplying any deficiency in it.
(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:
(a) respecting any matter for which regulations are contemplated under this Act;
(b) exempting a person or class of person, a transferee or class of transferee, a taxable transaction or class of taxable transaction from tax or from the requirement to file a return and prescribing any conditions of exemption;
(c) providing for the collection of tax;
(d) providing for the refund of tax and prescribing the terms and conditions under which that refund may be made;
(e) providing for the refund by the administrator of fees paid under the Land Title Act in respect of a taxable transaction;
(f) providing for the method of calculating and ascertaining fair market value for the purposes of the definition of "fair market value";
(g) providing for the method of calculating and ascertaining fair market value for the purposes of section 15;
(h) providing for the method of calculating and ascertaining fair market value for the purposes of section 16;
(i) providing for the payment of interest on any refund or rebate of tax authorized by this Act or the regulations, or on any money due to the government under this Act or the regulations;
(j) defining, for the purposes of this Act, any expression used but not defined in the Act;
(k) respecting a return or form or class of return or form and the records required to accompany a return or form;
(l) respecting the form and manner of records to be kept by transferors, transferees or persons to whom the tax is paid;
(m) providing that a regulation made under the authority of this Act is effective before its enactment;
(n) prescribing persons to whom the tax is payable;
(o) respecting arbitrations or classes of arbitrations and discretionary powers related to them, adopting all or part of the Commercial Arbitration Act or restricting or prohibiting judicial review of or appeals from an arbitration;
(p) respecting appeals from arbitrations or classes of arbitrations to court, entitlement to appeal, grounds for appeal, powers of the court on an appeal and procedure on an appeal;
(q) prescribing provisions to be included in a conservation covenant under section 16, which may vary for different conservation covenants and different classes of conservation covenants;
(r) respecting the payment of tax under section 2 (4);
(s) respecting the payment of tax under section 2 (5);
(t) respecting declarations.
(3) Regulations that may be made under this Act may be made retroactive to March 20, 1987 or a later date that the Lieutenant Governor in Council may determine and a regulation made retroactive is deemed to come into force on the date specified in the regulation.
(4) Subsection (3) does not apply to a regulation
(a) under section 2 (3), or
(b) prescribing a period under section 2 (5).
38 Despite section 3, the tax payable under this Act must be at the rate of .1% of the fair market value of the interest to be transferred under the taxable transaction if the taxable transaction is a transfer
(a) under a written interim agreement or option to purchase, made before March 20, 1987, whether or not the interim agreement or option was subject to conditions that were not satisfied before that date, if
(i) the application to register the transfer is made before December 31, 1987, and
(ii) a true copy of the interim agreement or option to purchase accompanies the return filed under section 2,
(b) under an executed taxable transaction in writing made before March 20, 1987, if
(i) the application to register the transfer is made before December 31, 1987, and
(ii) a true copy of the transfer documents accompanies the return filed under section 2,
(c) from a transferor who is a personal representative to a transferee who is a beneficiary of an estate of a deceased if the deceased died before March 23, 1987 and the transfer is tendered for registration before December 31, 1988,
(d) under an agreement for sale tendered for registration before March 23, 1987, if the purchaser under the agreement is the transferee of the transfer tendered for registration,
(e) to a transferee who has a leasehold estate with any term of years in land that was tendered for registration at the land title office before March 23, 1987 and the estate being transferred to the transferee is the fee simple in the same land,
(f) under a court order made before March 23, 1987,
(g) under an order absolute of foreclosure, if the order nisi of foreclosure was made before March 23, 1987, or
(h) under an option to purchase contained in a lease agreement in respect of Crown land if the lease agreement was entered into before November, 1987 and the Minister of Forests and Lands received written notice before January, 1989 of the transferee’s intention to exercise the option.