Personal income tax Administration Agreement between the Government of Canada and the Nisga'a Nation

WHEREAS:

The Nisga’a Final Agreement was brought into effect in accordance with its terms on May 11, 2000;

Paragraph 1 of the Taxation Chapter of the Nisga’a Final Agreement states that Nisga’a Lisims Government may make laws in respect of direct taxation of Nisga’a citizens on Nisga’a Lands in order to raise revenue for Nisga’a Nation or Nisga’a Village purposes;

Paragraph 3 of the Taxation Chapter of the Nisga’a Final Agreement states that, from time to time Canada and British Columbia, together or separately, may negotiate with the Nisga’a Nation, and attempt to reach agreement on: (a) the extent, if any, to which Canada or British Columbia will provide to Nisga’a Lisims Government or a Nisga’a Village Government direct taxation authority over persons other than Nisga’a citizens, on Nisga’a Lands; and (b) the coordination of Nisga’a Lisims Government or Nisga’a Village Government taxation, of any person, with existing federal or provincial tax systems;

Paragraph 4 of the Taxation Chapter of the Nisga’a Final Agreement states that Nisga’a Lisims Government and Nisga’a Village Governments may make laws in respect of the implementation of any taxation agreement entered into with Canada or British Columbia;

This Agreement is an agreement referred to in paragraphs 3 and 4 of the Taxation Chapter of the Nisga’a Final Agreement;

Nisga’a Lisims Government desires to exercise its power of direct taxation under the Nisga’a Final Agreement;
The Nisga’a Nation wishes to enter into a tax administration agreement with Canada, pursuant to which Canada will administer and enforce the Nisga’a Personal Income Tax Act and collect Income Tax payable under the Nisga’a Act and will make payments to the Nisga’a Nation in respect thereof, in accordance with the terms and conditions of this tax administration agreement;

The Federal-Provincial Fiscal Arrangements Act, R.S.C., 1985, c. F-8, provides that where an Aboriginal government imposes a tax, the Minister of Finance, with the approval of the Governor in Council, may enter into a tax administration agreement with the Aboriginal government, on behalf of Canada;

The Secretary-Treasurer has the approval of the Nisga’a Lisims Government Executive to sign this Agreement for the Nisga’a Nation;

The Minister of Finance has the approval of the Governor in Council to enter into this Agreement on behalf of Canada;

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

1.(1) The following definitions apply in this Agreement:
2. Canada agrees that:

3.(1) Canada will act as the agent for the Nisga’a Nation in respect of the administration and enforcement of the Nisga’a Act, and collect Income Tax and other amounts imposed under the Nisga’a Act while this Agreement is in effect and amounts, other than Income Tax, imposed under the Nisga’a Act after this Agreement ceases to have effect that relate to amounts imposed while this Agreement was in effect.

(2) Subject to subclause 13(5), Canada will administer and enforce the Nisga’a Act in accordance with this Agreement free of charge. In particular, any costs, charges or expenses (including amounts required to be paid in respect of prosecutions or other legal proceedings) incurred by Canada in the collection of Income Tax will be paid by Canada for each Year covered by the Term of this Agreement.

4. Canada will, for each Year covered by the Term of this Agreement, vacate tax room equivalent to the Designated Percentage of the Federal Tax payable by an Individual who is resident on Nisga’a Lands on the last day of the Year in respect of which Income Tax is imposed.

5. The Nisga’a Nation confirms that the Nisga’a Finance Committee has recommended to Wilp Si’ayuukhl Nisga’a that, subject to this Agreement being in effect, Wilp Si’ayuukhl Nisga’a enact a law entitled the Nisga’a Personal Income Tax Act that is the same as or similar in all material respects to the attached draft Nisga’a Act.

6. The Nisga’a Nation will, in respect of each Year covered by the Term of this Agreement, impose an Income Tax in the following manner:

7. The Nisga’a Nation agrees that the obligations, authorities, rights and privileges imposed upon or granted to an Individual under the Nisga’a Act will not depend on whether that Individual is a Nisga’a Citizen.

8.(1) Subject to subclause (2), the Nisga’a Nation will, in respect of each Year covered by the Term of this Agreement, maintain a Nisga’a Act that incorporates by reference, where appropriate, the provisions of the Federal Act relating to administration, enforcement and collection of the Federal Tax.

(2) No criminal offences and penalties will be imposed under the Nisga’a Act.

9. The Nisga’a Nation will, in respect of each Year covered by the Term of this Agreement, ensure that the Minister has the necessary authority to remit to a taxpayer any Income Tax or penalty imposed under the Nisga’a Act, including any interest paid or payable thereon, where any Federal Tax or penalty has been remitted to the taxpayer under section 23 of the Financial Administration Act, R.S.C. 1985, c. F-11.

10.(1) The Nisga’a Nation will, in respect of each Year covered by the Term of this Agreement, make best efforts to inform the Minister before amending the Nisga’a Act.

(2) The Nisga’a Nation will provide the Minister in a timely manner with a certified true copy of:

11.(1) Subject to subclause (7), Canada will make payments to the Nisga’a Nation in respect of each Year covered by the Term of this Agreement on account of Income Tax assessed for that Year.

(2) The amount payable to the Nisga’a Nation in respect of each Year covered by the Term of this Agreement is equal to the aggregate of the following:
(3) In respect of each Year covered by the Term of this Agreement, the Minister will:

(4) If, for a Year in respect of which payments are being made in accordance with this clause, it becomes apparent to the Minister that the estimate made in accordance with paragraph (3)(a) in respect of that Year should be revised, the Minister will make a new estimate and the remaining instalments in respect of that Year will be adjusted accordingly.

(5) Following the end of each Year in respect of which payments in accordance with this clause have been made by Canada to the Nisga’a Nation, and in no case later than November 30 of the Year following that Year, or as soon thereafter as is practical, the Minister will, on the basis of information available on September 30 of the Year following that Year:
(6) Following the end of each Year in respect of which payments in accordance with this clause have been made by Canada to the Nisga’a Nation, and in no case later than the last day of the fifteenth month following the end of that Year, or as soon thereafter as is practical, the Minister will, on the basis of information available on December 31 of the Year following that Year:
(7) (a) In this subclause the following definitions apply:

(b) The amount payable to the Nisga’a Nation in respect of each Year covered by the Term of this Agreement will be the amount determined as follows:

[ A + ( B * 50% ) + ( C * 5% ) ]

where

A is the lesser of Threshold 1 and FNPIT in respect of that Year;

B is:
C is:
12. If, under this Agreement, the Nisga’a Nation has received an amount in excess of the amount to which it is entitled, the Minister will recover as a debt due to Canada an amount equal to that excess, in the following manner:

13.(1) The Nisga’a Nation will ensure, in respect of each Year covered by the Term of this Agreement, that the Minister of National Revenue has and may exercise all the powers of the Nisga’a Nation necessary for the administration and enforcement of the Nisga’a Act or the collection of amounts payable under the Nisga’a Act, all of which will operate concurrently with, but not in duplication of, the Federal Act.

(2) If requested by the Minister of National Revenue for the purposes of administering the Nisga’a Act, the Nisga’a Nation will provide free of charge to the Minister of National Revenue information that it may have relating to:

(3) Any information made available by the Nisga’a Nation under subclause (2) will be provided in confidence and will not be used for any purpose other than the purpose for which it was provided.

(4) The Nisga’a Nation will accept as final and binding all Assessments, decisions and other steps made or taken by the Minister of National Revenue under the Nisga’a Act in pursuance of this Agreement.

(5) Canada will retain interest and penalties collected by the Minister of National Revenue under the Nisga’a Act.

14.(1) If, in the opinion of the Minister, the Minister of National Revenue or the Nisga’a Nation, an amendment to the Nisga’a Act or to this Agreement would improve the effective administration and enforcement of the Nisga’a Act or the collection of amounts payable under the Nisga’a Act, the Minister and the Nisga’a Nation will discuss the issue.

(2) Should Canada and the Nisga’a Nation find that a solution is required, Canada and the Nisga’a Nation agree to take whatever steps that are in their respective powers, subject to any necessary approvals, authorisations or legislative requirements, to effect the solution.

(3) This provision in no way obligates Canada to consult or advise the Nisga’a Nation in respect of any amendments or contemplated amendments to the Federal Act.

15.(1) Notwithstanding that this Agreement has been terminated, the Minister of National Revenue will continue to assess and collect Income Tax in respect of the Years covered by the Term of this Agreement.

(2) The Nisga’a Nation will ensure that, for the purposes of assessing and collecting Income Tax as described in subclause (1), the Minister of National Revenue will have all the powers with respect to the Assessment and collection of Income Tax after this Agreement has been terminated in respect of the Years covered by the Term of this Agreement that the Minister of National Revenue would have had if the Assessment were made and the collection effected during the Term of this Agreement.

(3) If this Agreement has been terminated, and if Canada has paid to the Nisga’a Nation an amount representing Income Tax in respect of a Year covered by the Term of this Agreement, any amount collected in respect of such Income Tax at any time thereafter will be retained by Canada.

(4) If this Agreement has been terminated and any loss is incurred by Canada in respect of the Years covered by the Term of this Agreement because the Nisga’a Nation has failed to provide the Minister of National Revenue with authority sufficient to collect Income Tax, an amount equal to the amount of the loss may be retained or recovered by Canada as a debt due to Canada by the Nisga’a Nation.

16.(1) Subject to paragraphs 41 and 42 of the Dispute Resolution chapter of the Nisga’a Final Agreement and section 20 of the Nisga’a Final Agreement Act , any actions, suits, prosecutions or other legal proceedings instituted by or against the Crown or the Nisga’a Nation in respect of any tax measure administered by Canada pursuant to this Agreement or the Nisga’a Act will be conducted by Canada on behalf of the Nisga’a Nation:

the Nisga’a Nation will assist Canada with respect to the conduct of that action, suit, prosecution or other legal proceeding or any matter related or incidental thereto.

(2) If, in an action, suit, prosecution or other legal proceeding referred to in subclause (1) in which the Nisga’a Nation is named as a party, an issue arises in respect of the validity of the Nisga’a Act, any other Nisga’a Law or the Nisga’a Final Agreement, the Nisga’a Nation will appear and participate in the action, suit, prosecution or other legal proceeding in respect of that issue on its own behalf.

(3) Subject to any applicable privilege, the Nisga’a Nation will, with all due dispatch and free of charge, forward to the Minister of National Revenue any document in the possession of the Nisga’a Nation relating to any Assessment made under the Nisga’a Act or relating to any action, suit, prosecution or other legal proceeding brought or taken under the Nisga’a Act.

(4) Any document forwarded by the Nisga’a Nation under subclause (3) will be provided in confidence and will not be used for any purpose other than the purpose for which it was provided.

17. If, in respect of any Year covered by the Term of this Agreement, amounts are required to be paid by a taxpayer on account of tax payable under the Nisga’a Act and under the Federal Act, and the Minister of National Revenue receives a payment on account of the tax payable by the taxpayer for that Year under either the Nisga’a Act or the Federal Act, or both, the payment so received will be applied by the Minister of National Revenue toward the tax payable by the taxpayer under the Nisga’a Act for that Year, and the remainder, if any, will be applied toward the tax payable by the taxpayer for that Year under the Federal Act.

18.(1) The Minister will provide the Nisga’a Nation with each report prepared by the Auditor General of Canada, on the results of applying specified auditing procedures to the reconciliation procedures described in subclause 11(6), in a format consistent with current auditing and reporting practices.

(2) The Auditor General’s report will constitute the only specified auditing procedures conducted with respect to Canada’s obligations under this Agreement and the Nisga’a Nation hereby will have no right to inspect the books and records of Canada.

19.(1) In the event of a dispute between the Parties arising out of the interpretation of this Agreement, other than disputes in respect of clause 7, 8, 9, 20, 21, or 22 or subclause 13(4), the Parties will follow the procedure set out in subclauses (2) to (6) before pursuing other legal remedies.

(2) Within 30 days of either the Minister or the Nisga’a Nation receiving written notice from the other of a dispute under this Agreement, a meeting will be held between the Parties to attempt in good faith to settle the dispute.

(3) If, within 60 days after the meeting referred to in subclause (2), the Parties have failed to resolve the dispute, they will submit the dispute to a jointly selected mediator and share equally the costs of that mediation.

(4) If, after 30 days following the period referred to in subclause (3), the Parties are unable to agree on the choice of a mediator, the matter will be referred to a judge of the Supreme Court of British Columbia who will be asked to select at his or her discretion a mediator from a list of four candidates, each Party having nominated two candidates out of the four proposed.

(5) The Parties agree to participate in good faith in the mediation process for a period of 60 days.

(6) The Parties may mutually determine time periods other than those referred to in subclauses (2) to (5).

20. The Nisga’a Nation may, at any time and for any reason, terminate this Agreement by giving the Minister written notice of termination of this Agreement.

21. Except where clause 22 applies, the Minister may, at any time and for any reason, terminate this Agreement by giving the Nisga’a Nation written notice of termination of this Agreement.

22.(1) The Minister will notify the Nisga’a Nation in writing and will specify the amendments and alterations to the Nisga’a Act that the Minister considers necessary where, in the opinion of the Minister, the Nisga’a Act does not:

(2) Where, within six months following the receipt of the notification referred to in subclause (1), the Nisga’a Nation fails to amend or alter the Nisga’a Act to rectify the issues identified in that notification, the Minister may terminate this Agreement forthwith by giving written notice of the immediate termination of this Agreement.

23. Where a notice of termination has been given under clause 20 or 21, this Agreement will terminate:

24.(1) Subject to subclause (2), termination of this Agreement will not affect the operation of any clause of this Agreement in respect of the Years covered by the Term of this Agreement. On such termination, the provisions of this Agreement will apply with any necessary modifications in respect of those Years as if this Agreement had been entered into only for the period of those Years. The provisions of this Agreement relating to payments to the Nisga’a Nation in respect of Income Tax for that period will be adjusted to take into account that termination.

(2) Unless the Minister otherwise directs, payments under this Agreement will no longer be made to the Nisga’a Nation five Years after its termination.

25. Neither this Agreement nor any of the rights or obligations under this Agreement may be assigned, either in whole or in part, by either Party.

26. Nothing in this Agreement will limit or restrict, or be construed as limiting or restricting, Canada's right to alter or vary, in such manner as Canada may determine, the Federal Act.

27.(1) Nothing in this Agreement will be, or be construed as, an undertaking by Canada to collect Income Tax or take any action with respect to the collection of Income Tax if, in the opinion of the Minister, a doubt exists that the Nisga’a Nation has provided sufficient statutory or other authority for the administration, enforcement or collection of such Income Tax.

(2) If Canada does not collect Income Tax or amounts payable on account of Income Tax because, in the opinion of the Minister, a doubt exists that the Nisga’a Nation has provided sufficient statutory or other authority as referred to in subclause (1) and notice has been provided in accordance with clause 22, the amount that, in the opinion of the Minister, Canada has thereby failed to collect may be recovered by Canada as a debt due to Canada by the Nisga’a Nation despite the fact that payments on account have been made to the Nisga’a Nation as if there were sufficient authority.

28. The Effective Date of this Agreement is the latter of the dates when it is signed by the Parties.

29. This Agreement ceases to have effect:

(a) automatically on February 28, 2013, if Wilp Si’ayuukhl Nisga’a has not, in accordance with clause 5, enacted the Nisga’a Act by that date; or

(b) otherwise, on the date of termination determined in accordance with clause 22 or 23.

30. The Term of this Agreement commences on January 1, 2013, subject to the Nisga’a Nation having enacted the Nisga’a Act in accordance with clause 5, and ends on the date of termination determined in accordance with clause 22 or 23.

31. 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 28. Facsimile and scanned signatures will be accepted the same as original signatures.

Signed on this 28th day of November, 2012, on behalf of the Nisga’a Nation as represented by the Nisga’a Lisims Government Executive:

Originally signed by:

Secretary-Treasurer Corinne McKay

Signed on this 9th day of January, 2013, on behalf of the Government of Canada:

Originally signed by:

Minister of Finance James M. Flaherty

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