Exposure draft legislation has been released which proposes amendments to the GST legislation to make it clear that liquidators and other representatives of incapacitated entities are liable for GST on transactions within the scope of their appointment.

Date of effect

It is proposed that the main operative provisions of the legislation have effect retrospectively from the commencement of the GST Act on 1 July 2000.

Background

In a unanimous decision issued November 8, 2018, the Supreme Court of Canada granted the appeal of the decision of the Federal Court of Appeal in Canada v Callidus Capital Corp, 2017 FCA 162.

On November 8, 2018, in a decision delivered unanimously from the bench, the Supreme Court of Canada confirmed that the Crown’s superpriority over unremitted Goods and Services Tax/Harmonized Sales Tax (GST/HST) is ineffective against a secured creditor who received, prior to a tax debtor’s bankruptcy, proceeds from that taxpayer’s assets.1

Dans l’arrêt Arrangement relatif à Métaux Kitco inc. 2017 QCCA 268 rendu le 20 février dernier, la Cour d’appel du Québec a confirmé la décision de la Cour supérieure interdisant l’Agence du revenu du Québec (« ARQ ») de compenser des crédits et des remboursements de taxes sur les intrants (« CTI/RTI ») réclamés prétendument illégalement par Métaux Kitco inc. (« Kitco ») avant le dépôt d’un avis d’intention avec des CTI/RTI engendrés après le dépôt d’un avis d’intention.

In its decision in Arrangement relatif à Métaux Kitco inc. 2017 QCCA 268, rendered on February 20th, the Quebec Court of Appeal upheld a Quebec Superior Court decision prohibiting Revenu Québec (“RQ”) from setting off input tax credits and refunds (“ITC/ITRs”) allegedly claimed illegally by Kitco Metals Inc. (“Kitco”) before filing a notice of intention to make a proposal to its creditors, against ITC/ITRs generated after the filing of the notice.

“...we consider that the section means what it says, and that there is not much point in trying to paraphrase it.” (Supreme Court in Thompson v CIR)

Recent regulations confirm that the GST/HST deemed trust has priority over all security interests and charges except for land or building charges. That exception has its own limitations. It is limited to the amount owing to the secured creditor at the time the tax debtor failed to remit the GST/HST. It also forces the secured creditor to look first to its other security; a kind of forced marshalling.

In its recent decision in Century Services Inc v Canada,1 the Supreme Court of Canada (the “SCC”) held that, in the context of a Companies’Creditors Arrangement Act2 (the “CCAA”) proceeding, the Crown does not have a superpriority claim over the property of a debtor for unremitted goods and services tax (“GST”) amounts. The decision of the SCC majority rejected existing appellate-level case law, and brought the priority of Crown claims in-line with what they are in bankruptcy proceedings.

Century Services Inc. v. Canada (Attorney General), 2010 SCC 60

Section 222(3) of the Excise Tax Act creates a deemed trust for unremitted GST, which operates despite any other act of Canada, except the Bankruptcy and Insolvency Act. However section 18.3(1) of the Companies’ Creditors Arrangement Act (the "CCAA") provides that any statutory deemed trust in favour of the Crown does not operate under the CCAA, subject to certain exceptions which do not mention GST.

The Supreme Court of Canada recently ruled in the Century Servicesi case that Goods and Services Tax (“GST”) deemed trusts under the federal Excise Tax Act (“ETA”) are ineffective in proceedings under the Companies’ Creditors Arrangement Act (“CCAA”).