The Tobacco Plains First Nation Goods and Services Tax Administration Agreement - January 1, 2008

WHEREAS:

the Tobacco Plains Indian Band Goods and Services Tax Law imposes a value-added tax within the lands described opposite the name of the Tobacco Plains Indian Band in Schedule 1 to the First Nations Goods and Services Tax Act (Canada);

section 5 of the Tobacco Plains Indian Band Goods and Services Tax Law provides that a Quorum of Council of the TPIBTPIB may enter, on behalf of TPIB, into an administration agreement with Canada in relation to that tax;

the Council approves of the TPIB entering into this agreement;

subsection 5(2) of the First Nations Goods and Services Tax Act (Canada) provides that the Minister of Finance, with the approval of the Governor in Council, may enter into an administration agreement in respect of a value-added tax imposed under a first nation law; and,

the Minister of Finance has the approval of the Governor in Council to enter into this agreement;

NOW THEREFORE, in consideration of the terms, exchange of promises, covenants and conditions contained in this agreement, the Parties agree as follows:

1. In this agreement:

2. Unless a contrary intention appears in this agreement, words and expressions used in this agreement but not defined in clause 1 have the same meaning as in the Federal Act, or if the meaning does not exist in the Federal Act, have the meaning assigned by subsection 123(1) of the Excise Tax Act.

3. In this agreement, where a reference is made to an Act of Parliament, the First Nation Law, or any other first nation law that meets the description set out in subsection 11(1) or 12(1) of the Federal Act, or regulations made under the Act of Parliament, the First Nation Law or that other law, the reference shall be read as a reference to that Act of Parliament, the First Nation Law or that other law, or those regulations, as amended from time to time.

4. Canada agrees that the tax power of the TPIB provided for in subsection 4(1) of the Federal Act applies in respect of the FNGST and other amounts imposed under the First Nation Law while this agreement is in effect and of amounts, other than the FNGST, imposed under that law after this agreement ceases to have effect that relate to amounts imposed while this agreement was in effect.

5. Canada shall act as the agent for the TPIB in respect of the administration and enforcement of the First Nation Law, including the collection of FNGST and other amounts imposed under that law while this agreement is in effect and of amounts, other than the FNGST, imposed under that law after this agreement ceases to have effect that relate to amounts imposed while this agreement was in effect.

6. Canada shall account for the amounts collected under the First Nation Law on behalf of the TPIB by estimating the associated revenues and Canada shall make and account for remittances to the TPIB in accordance with this agreement.

7. Canada and its agents and subservient bodies shall comply with the obligations imposed on them under the First Nation Law, including the obligation to pay and account for the amounts imposed on them under the First Nation Law as if that law were applicable to Canada.

8. The TPIB agrees that the obligations, authorities, rights and privileges imposed upon or granted to a person under the First Nation Law shall not depend on whether that person is a Member or a Non-Member.

9. The TPIB agrees that the First Nation Law shall be made under the tax power in section 4 and consistent with section 11 of the Federal Act. The TPIB shall ensure that the First Nation Law provides the Minister of National Revenue with sufficient authority to administer and enforce that law in accordance with this agreement, including the authority to collect the FNGST and other amounts imposed under that law.

10. The TPIB shall provide the Minister in a timely manner with a certified true copy of:

11. The TPIB and its agents and subservient bodies shall comply with Part IX of the Excise Tax Act, the Federal Act, the First Nation Law and any other first nation law that meets the description set out in subsection 11(1) or 12(1) of the Federal Act.

12. The TPIB and its agents and subservient bodies shall pay, and account for the payment of, amounts imposed under Part IX of the Excise Tax Act, the Federal Act, the First Nation Law or any other first nation law that meets the description set out in subsection 11(1) or 12(1) of the Federal Act, except if the amounts are not payable by reason of a separate agreement given effect under an Act of Parliament.

13. The Parties agree to use data outlined in Annex A and Annex B in order to prepare the estimates and re-estimates described below. The Parties recognize, however, that the data available may not, in all instances, be optimal.

14. Prior to the beginning of each particular Entitlement Year, the Minister shall make an estimate for that Entitlement Year of the Tax Attributable to the TPIB in accordance with the provisions in Annex A.

15. The sharing, if any, between the TPIB and Canada of the amount estimated as Tax Attributable to the TPIB for each Entitlement Year will be calculated in accordance with the provisions in Annex B.

16. An estimate of Net Tax Attributable for each particular Entitlement Year shall be made by subtracting from the estimate of the Tax Attributable to the TPIB determined under Annex A for the particular Entitlement Year the estimate of Canada’s share, if any, determined under Annex B for that particular Entitlement Year.

17. Not later than December 31 of the calendar year that includes the particular Entitlement Year, and not later than December 31 of each of the four calendar years following the particular Entitlement Year, the Minister shall annually re-estimate, using the procedure set out in clause 16, the Net Tax Attributable to the TPIB for that particular Entitlement Year for the purpose of calculating in each of those years the Prior Estimate Adjustment for that particular Entitlement Year.

18. The Net Tax Attributable for a particular Entitlement Year shall be final and no further adjustments shall be made following the commencement of remittances incorporating the Prior Estimate Adjustment in respect of the fifth re-estimate for that year, subject to the Minister incorporating any adjustments that may be required to the fifth re-estimate as set out in the report signed by the Auditor General that is referred to in clause 29.

19. The Minister shall remit to the TPIB on a monthly basis positive amounts in respect of a particular Entitlement Year determined by the formula

[(A – B) / D] + [C / D]

  • where
  • A is the amount estimated under clause 14 for that particular Entitlement Year;
  • B is the amount of Canada’s share determined under clause 15 for that particular Entitlement Year;
  • C is the sum of the most recent Prior Estimate Adjustments in respect of the five Entitlement Years immediately preceding that particular Entitlement Year or, if there are fewer than five Entitlement Years preceding the particular Entitlement Year, in respect of all the Entitlement Years preceding the particular Entitlement Year; and
  • D is the number of months anticipated to be in that particular Entitlement Year.

20. If the result of the formula in clause 19 in respect of a particular Entitlement Year is negative, that amount multiplied by the number of months anticipated in the formula to be in that Entitlement Year is a debt due to Canada payable by the TPIB, subject to clause 21, within that Entitlement Year.

21. If the sum of the Prior Estimate Adjustments in the formula in clause 19 results in a reduction to the remittances in respect of a particular Entitlement Year that is equal to or greater than twenty percent of Net Tax Attributable to the TPIB for that year, the TPIB may defer the repayment of a portion, agreed to by the Parties, (hereinafter referred to as the “Deferred Amount”) of the total of the Prior Estimate Adjustments and, unless otherwise agreed by the Parties, the Deferred Amount will be repaid to Canada by the TPIB during the two Entitlement Years following the particular Entitlement Year.

22. Canada shall retain as its property an amount imposed under the First Nation Law if that amount:
23. Prior to each particular Entitlement Year, the Assistant Deputy Minister or any authorized officer or class of officer of the Tax Policy Branch of the federal Department of Finance shall provide the TPIB with a written statement for review before payments commence in respect of that Entitlement Year that includes the following information:

24. The first remittance made to the TPIB in respect of a particular Entitlement Year shall be made on or before the last working day of the month following the first month of that particular Entitlement Year. Subsequent remittances in respect of the particular Entitlement Year shall be made on or before the last working day of each month thereafter for the number of months equal to one less than the number of months in that particular Entitlement Year.

25. The Parties agree that, in respect of FNGST that is imposed while this agreement is in effect, the Minister may pay to a person any refund, rebate or other amount that is payable in accordance with the First Nation Law.

26. If no amount is held on behalf of the TPIB from which payment under clause 25 may be made in accordance with this administration agreement, or the amount of the payment exceeds the amount so held, Canada agrees to make the payment as a recoverable advance and the TPIB agrees that the advance shall be recovered against amounts of FNGST subsequently collected on behalf of the TPIB.

27. In the event that this agreement is terminated, unless the Parties agree otherwise:

28. The statements provided under clause 23 and subclause 27(e), and the report provided under clause 29, shall be the only statements or reports required to be provided to the TPIB by Canada in respect of amounts collected in accordance with this agreement.

29. The Minister shall annually provide the TPIB with a report, signed by the Auditor General, concerning the determination of amounts as provided for in this agreement.

30. The procedures carried out to prepare the Auditor General’s report will be determined by the Auditor General and will constitute the only procedures conducted by Canada with respect to the reporting obligations in connection with the determination of amounts as provided for in this agreement. The TPIB agrees that it has no right to inspect the books and records of Canada in connection with this agreement.

31. Unless the Parties agree otherwise, if the Auditor General’s report indicates that the estimate or the most recent re-estimate in respect of an Entitlement Year should be adjusted, that adjustment shall be incorporated into the next re-estimate in respect of that Entitlement Year.

32. The Parties agree that the Minister of National Revenue shall have and may exercise all the powers of the TPIB relating to the administration and enforcement of the First Nation Law, including the collection of the FNGST and other amounts imposed under that law while this agreement is in effect and the collection of amounts, other than the FNGST, imposed under that law after this agreement ceases to have effect that relate to amounts imposed while this agreement was in effect.

33. The TPIB agrees that the Minister of National Revenue shall be the administrative authority in respect of the FNGST, including all interpretations, assessments, determinations, decisions, and any other matter related to administration, collection or enforcement.

34. Canada shall administer the FNGST Law free of charge for the TPIB and Canada shall pay the costs, charges or expenses (including amounts in respect of prosecutions or other legal proceedings, other than amounts referred to in clause 36) that are incurred by Canada in the administration and enforcement of the First Nation Law and the collection of the FNGST and other amounts imposed under that law.

35. Canada shall retain interest and penalties that are imposed under the First Nation Law and collected by the Minister of National Revenue.

36. Unless otherwise agreed by the Parties, the TPIB shall pay its own costs, charges and expenses incurred in relation to litigation to which the TPIB becomes a party, either voluntarily or because a party other than Canada requires it, relating to the validity of this agreement, the Federal Act or the First Nation Law.

37. If this agreement ceases at any time to have effect, the Minister of National Revenue shall continue after that time to assess, collect or pay, as the case requires, amounts payable under the First Nation Law in respect of the period in which this agreement was in effect and amounts, other than the FNGST, imposed under that law after this agreement ceases to have effect that relate to amounts imposed while this agreement was in effect.

38. The Minister of National Revenue may provide to the TPIB information acquired in the administration and enforcement of the First Nation Law or, subject to section 295 of the Excise Tax Act, Part IX of the Excise Tax Act. Such information shall be provided free of charge.

39. The TPIB, subject to any applicable confidentiality or privacy obligations shall provide to Canada, free of charge, information that it acquires that could assist in the administration and enforcement of the First Nation Law, the collection of amounts payable under that law, or the estimation of payments to be made under this agreement. Canada agrees that any information made available by the TPIB will not be used for any purpose other than the purpose for which it was provided.

40. Except in its capacity as a registrant or a person required to pay or entitled to receive amounts under the First Nation Law, the TPIB shall accept as final and binding all interpretations, determinations, assessments, decisions, and other actions made or taken by the Minister of National Revenue for the purposes of the First Nation Law.

41. For the purposes of section 8 of the Federal Act, the Parties agree that the authorized body, as defined in subsection 2(1) of the First Nation Law, is authorized to certify the First Nation Law to be a true copy and evidence that the law was duly enacted by the TPIB.

42. Canada shall notify the TPIB in writing that the First Nation Law requires amendment, where, in the opinion of the Minister, the First Nation Law does not:

43. Upon receipt of the notice referred to in clause 42 the Chief agrees to propose to the Council of the TPIB an amendment to the First Nation Law forthwith.

44. The Parties agree that if the First Nation Law is not amended to rectify the deficiencies identified in the notice referred to in clause 42, the Minister may terminate this agreement:

45. Unless the Minister agrees otherwise, the TPIB shall provide the Minister with at least twelve months notice of the date on which they intend to repeal the First Nation Law, and shall provide the Minister with notice that the First Nation Law has been repealed within 10 days following the repeal.

46. In the event of a dispute between the Parties arising out of or in connection with this agreement, other than disputes in respect of clause 8, 9, 40, 43 or 44 of this agreement, the Parties shall follow the procedure set out in subclauses (a) through (d) before pursuing other legal remedies.

47. The Parties agree that a decision arising from the dispute resolution process under clause 46 concerning a dispute in respect of the amount of money due to either Party for an Entitlement Year shall be implemented, notwithstanding clause 18, if written notice of the dispute is provided at any time during the period that begins at the beginning of the Entitlement Year and ends at the end of the sixth month in the fifth calendar year following the Entitlement Year.

48. The Parties may mutually determine time periods other than those referred to in subclauses 46(a) through (d).

49. Subject to any applicable approvals, authorizations or legislative requirements, the Parties may, in writing, amend or vary this agreement.

50. At either Party’s request, Canada and the TPIB shall consider amending this agreement by amending the terms and conditions in Annex A or Annex B of this agreement to be consistent with the terms and conditions of Annex A or Annex B, respectively, of any other administration agreement between a first nation and Canada that has been entered into in accordance with the Federal Act, with such modifications as are required in the circumstances.

51. At the request of the TPIB, the terms and conditions in Annex A or Annex B of this agreement shall be amended to be consistent with the terms and conditions of Annex A or Annex B, respectively, of any other bilateral administration agreement between a first nation and Canada that has been entered into in accordance with the Federal Act after the effective date of this agreement and before 2009, with such modifications as are required in the circumstances.

52. The Parties may mutually agree to terminate this agreement at any time on such terms as may be agreed upon by the Parties.

53. The TPIB may terminate this agreement by giving the Minister not less than twelve months written notice of its intention to terminate the agreement, including the date upon which this agreement shall end.

54. Except where clause 44 applies, the Minister may terminate this agreement by giving the TPIB not less than twelve months written notice of the Minister’s intention to terminate the agreement, including the date upon which this agreement shall end.

55. This agreement may not be assigned, either in whole or in part, by either Party.

56. Nothing in this agreement shall limit or restrict, or be construed as limiting or restricting, the right to alter or vary the Federal Act or Part IX of the Excise Tax Act.

57. Nothing in this agreement shall constitute or be construed as constituting an undertaking by Canada to collect the FNGST or any other amount payable under the First Nation Law, or to take any action with respect to the collection of those amounts, where, in the opinion of the Minister, a doubt exists that the TPIB has provided sufficient statutory or other authority for the imposition or collection of those amounts.

58. Where Canada cannot collect the FNGST or any other amount payable under the First Nation Law by reason of there being, in the opinion of the Minister, doubtful authority to do so, the amount that, in the opinion of the Minister, Canada has thereby failed to collect but that has been taken into account in determining a payment to the TPIB made under this agreement may be recovered by Canada as a debt due to Canada by the TPIB, notwithstanding that such payment was made to the TPIB as if there were sufficient authority.

59. The effective date of this agreement is the fourteenth day following the latter of:
60. This agreement shall end:

61. This agreement may be executed in counterparts each of which so executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument and this agreement shall be effective on the date set out in clause 59. Facsimile signatures shall be accepted the same as original signatures.

Signed on this day of , 2007, for the Tobacco Plains Indian Band, the signatories being authorized to do so as a quorum of three:

Originally signed by:

Chief Mary Mahseelah

Councillor Rob Eneas

Councillor Dan Gravelle

Councillor Robin D. Gravelle

Councillor Robert Luke

Signed on this day of , 2007, for the Government of Canada, the signatory being authorized to do so:

Originally signed by:

Minister of Finance

1. In this Annex:
2. In this Agreement, interim and final estimates of Tax Attributable to the TPIB (“ETATPIB”) for an Entitlement Year shall be determined as follows:
3.
4.
5.
1. In this annex:

2. In this annex, Canada’s share of a specific Estimate of Tax Attributable to the TPIB for a particular Entitlement Year shall be determined as follows:

Canada’s share = [(0.00 * A) + (0.50 * B) + (0.95 * C)]

  • where
  • A is the lesser of Threshold 1 and the specific Estimate of Tax Attributable to the TPIB, for that particular Entitlement Year;
  • B is
    • (a) where the specific Estimate of Tax Attributable to the TPIB is greater than Threshold 2, for that particular Entitlement Year, the result obtained by subtracting Threshold 1 from Threshold 2, for that particular Entitlement Year; and
    • (b) in any other case, the result obtained by subtracting the value of A from that specific Estimate of Tax Attributable to the TPIB, for that particular Entitlement Year; and
  • C is
    • (a) where the specific Estimate of Tax Attributable to the TPIB is greater than Threshold 2, for that particular Entitlement Year, the result obtained by subtracting Threshold 2 from the specific Estimate of Tax Attributable to the TPIB, for that particular Entitlement Year; and
    • (b) in any other case, nil.

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