Budget Implementation Act, 2008 (S.C. 2008, c. 28)

Marginal note:1997, c. 10, s. 38(1)

• 74. (1) The portion of paragraph 191.1(2)(b) of the Act before subparagraph (i) is replaced by the following:

  • (b) possession or use of at least 10% of the residential units in the complex is intended to be given for the purpose of their occupancy as a place of residence or lodging by

• Marginal note:1997, c. 10, s. 38(1)

  (2) Subparagraphs 191.1(2)(b)(vi) and (vii) of the Act are replaced by the following:

  • (vi) individuals whose eligibility for occupancy of the units as a place of residence or lodging, or for reduced payments in respect of their occupancy as a place of residence or lodging, is dependent on a means or income test,

  • (vii) individuals for whose benefit no other persons (other than public sector bodies) pay consideration for supplies that include giving possession or use of the units for occupancy by the individuals as a place of residence or lodging and who either pay no consideration for the supplies or pay consideration that is significantly less than the consideration that could reasonably be expected to be paid for comparable supplies made by a person in the business of making such supplies for the purpose of earning a profit, or

• (3) For the purposes of subsection (4), the particular time in respect of a residential complex or an addition to a residential complex is the later of

  • (a) the time the construction or substantial renovation of the residential complex or addition is substantially completed, and

  • (b) the earlier of the time the builder of the complex or addition first gives possession or use of the complex or of a residential unit in the complex or addition to a person for the purpose of the occupancy of the complex or unit by an individual as a place of residence and the time the complex or a residential unit in the complex or addition is occupied by the builder as a place of residence.

• (4) Subsections (1) and (2) apply in respect of a residential complex or an addition to a residential complex if the particular time is

  • (a) after February 26, 2008; or

  • (b) on or before February 26, 2008 and the builder of the complex or addition, as the case may be,

    • (i) would have been deemed under section 191 of the Act to have made, at the particular time, a taxable supply by way of sale of the complex or addition if that section, as amended by subsections 73(1) to (13), had applied at that time, and

    • (ii) has reported an amount as or on account of tax, as a result of the builder applying section 191 of the Act in respect of the complex or addition, in the builder’s return under Division V of Part IX of the Act for any reporting period the return for which is filed on or before February 26, 2008 or is required under that Division to be filed on or before a day that is on or before February 26, 2008.

• (5) For the purposes of this section,

  • (a) subsection 191(9) of the Act applies in determining the time the construction or substantial renovation of a residential complex or an addition to a residential complex is substantially completed; and

  • (b) subsection 191(10) of the Act, as amended by subsection 73(13), applies in determining the time possession of a residential complex or a residential unit in a residential complex or addition to a residential complex is given to a person.

• 75. (1) The Act is amended by adding the following after section 236.3:

  Marginal note:Election for residential complex

  • 236.4 (1) A person may make an election in respect of a residential complex, or in respect of an addition to a multiple unit residential complex, for a particular reporting period of the person if

    • (a) the person is the builder of the residential complex or addition;

    • (b) the person is deemed under subsection 191(1), (3) or (4) to have made and received, at a particular time that is on or before February 26, 2008, a taxable supply by way of sale of the residential complex or addition and to have paid as a recipient and to have collected as a supplier a particular amount of tax in respect of that supply;

    • (c) the person has not reported an amount as or on account of tax in respect of the taxable supply in the person’s return under this Division for any reporting period the return for which is filed on or before February 26, 2008 or is required under this Division to be filed on or before a day that is on or before February 26, 2008;

    • (d) the person would be entitled to claim a rebate under subsection 256.2(3) in respect of the residential complex or addition that is determined based on the particular amount of tax if

      • (i) section 256.2 were read without reference to subsection (7), and

      • (ii) the amount determined for B in the first formula in subsection 256.2(3) for a qualifying residential unit, as defined in subsection 256.2(1), that forms part of the residential complex or addition were less than $450,000;

    • (e) the person did not supply to another person by way of sale the residential complex or addition on or before February 26, 2008;

    • (f) the particular reporting period ends on or before February 26, 2010;

    • (g) the election is filed in prescribed form containing prescribed information not later than the day on or before which the return under this Division is required to be filed for the particular reporting period; and

    • (h) the person has not made another election under this subsection in respect of the residential complex or addition.

  • Marginal note:Adjustment to net tax

    (2) If a person makes an election under subsection (1) in respect of a residential complex, or in respect of an addition to a multiple unit residential complex, for a reporting period of the person, the person shall, in determining the net tax for that period, add the positive amount or deduct the negative amount determined by the formula

    (A - B) - C

    where

    A 

    is the particular amount of tax referred to in paragraph (1)(b);

    B 

    is the amount of the rebate that the person would be entitled, if section 256.2 were read without reference to subsection (7), to claim under subsection 256.2(3) in respect of the residential complex or addition that is determined based on the particular amount of tax; and

    C 

    is the amount determined by the formula

    C₁ - C₂

    where

    C₁ 

    is the total of all amounts each of which is an input tax credit of the person

    • (i) that is in respect of property or a service acquired, imported or brought into a participating province before the particular time referred to in paragraph (1)(b) for consumption or use for the purpose of making the supply referred to in that paragraph, and

    • (ii) in respect of which the person satisfies the requirements of subsection 169(4) at the time the election under subsection (1) is filed, and

    C₂ 

    is the total of all amounts each of which is an amount included in the determination of C₁, but only to the extent that the amount can reasonably be regarded as an amount that

    • (i) was claimed or included as an input tax credit or deduction in determining the net tax for the reporting period or a preceding reporting period of the person,

    • (ii) has previously been rebated, refunded or remitted to the person, or that the person is entitled to obtain as a rebate, refund or remission, under this or any other Act of Parliament, or

    • (iii) is included in an adjustment, refund or credit for which a credit note referred to in subsection 232(3) has been received by the person or a debit note referred to in that subsection has been issued by the person.

  • Marginal note:Consequences of election

    (3) For the purposes of this Part, if a person makes an election under subsection (1) in respect of a residential complex, or in respect of an addition to a multiple unit residential complex, for a reporting period of the person, the person is deemed

    • (a) to have been deemed to have made and received, at the particular time referred to in paragraph (1)(b), a taxable supply of the residential complex or addition by way of sale and to have paid as a recipient and to have collected as a supplier tax in respect of the supply equal to the particular amount of tax referred to in that paragraph under

      • (i) in the case of a single unit residential complex or a residential condominium unit, subsection 191(1),

      • (ii) in the case of a multiple unit residential complex, subsection 191(3), and

      • (iii) in the case of an addition, subsection 191(4);

    • (b) to have claimed each amount that is included in the determination of C₁ in the second formula in subsection (2) as an input tax credit in determining the net tax for the reporting period, but only to the extent that the amount is not included in the determination of C₂ in the same formula;

    • (c) to have claimed and received a rebate under subsection 256.2(3), in respect of the complex or addition, equal to the amount determined for B in the first formula in subsection (2); and

    • (d) not to be required to include the particular amount of tax deemed to have been collected under paragraph (a) for the purpose of determining the net tax of the person for the reporting period that includes the particular time, other than for the purpose of including the particular amount in the determination of A in the first formula in subsection (2).

  • Marginal note:Input tax credit

    (4) For the purposes of subsection 225(4), if a person makes an election under subsection (1), any input tax credit of the person in respect of the complex or addition that the person is deemed to have received under paragraph (3)(a) is deemed to be an input tax credit of the person for the reporting period of the person that includes February 26, 2008 and not an input tax credit of the person for any other period.

  • Marginal note:Limitation period if election

    (5) If a person makes an election under subsection (1) in respect of a residential complex, or in respect of an addition to a multiple unit residential complex, section 298 applies to any assessment, reassessment or additional assessment of an amount added to, or deducted from, net tax by the person in respect of the residential complex or addition, but the Minister has until the day that is four years after the day on or before which the election under subsection (1) is required to be filed with the Minister to make any assessment, reassessment or additional assessment for the purpose of taking into account any amount that is, or is required to be, added or subtracted in determining the amount determined under the first formula in subsection (2).

  • Marginal note:Residential complex separate from addition

    (6) For the purposes of this section, if a person is the builder of an addition to a residential complex and is eligible to make an election under subsection (1) in respect of the addition or the remainder of the residential complex, the addition and the remainder of the residential complex are each deemed to be a separate property.

• (2) Subsection (1) applies to any reporting period that ends on or after February 26, 2008.

• (3) Despite any other provision of this Act, sections 191, 191.1 and 256.2 of the Act shall be read as those sections are amended by this Act in applying section 236.4 of the Act, as enacted by subsection (1).