EDM2.2.3 Government of Canada Bonds and Surety Bonds
This version replaces the one dated March 2003, which was entitled Surety Bonds.
This memorandum explains the requirements for Government of Canada bonds and surety bonds that are provided as security by a spirits licensee or tobacco licensee or by a prescribed person importing tobacco products in accordance with the Excise Act, 2001.
The information in this memorandum does not replace the law found in the Excise Act, 2001 and its regulations. It is provided for your reference. As it may not completely address your situation, you may wish to refer to the Act or its regulations, or contact any Canada Revenue Agency regional excise duty office for additional information. These offices are listed in Excise Duty Memorandum EDM1.1.2, Regional Excise Duty Offices.
Table of Contents
- Requirement to provide security
- Acceptable bonds
- Government of Canada bonds
- Form and manner of a surety bond
- Bonds from an acceptable bonding company
- Bonds from a chartered bank or other financial institution
- Cancellation of a Government of Canada bond
- Cancellation of a surety bond
- Claims against security
- Appendix A – Sample of a surety bond
- Appendix B – Completion instructions for the Excise Bond
- Appendix C – Sample of a safekeeping agreement for non-certificate Government of Canada bonds
Requirement to provide security
1. Under the ActFootnote 1, the following persons are required to provide security in a form satisfactory to the CRA and in an amount determined in accordance with the Regulations Respecting Excise Licences and Registrations and the Stamping and Marking of Tobacco Products Regulations:
- pursuant to paragraph 23(3)(b), persons applying for or renewing a spirits licence or tobacco licence and
- pursuant to subsection 25.1(3), a prescribed person who is importing a tobacco product and applying for excise stamps.
2. Additional information on the requirement to provide security and the amounts of security required for licensees and prescribed persons can be found in Excise Duty Memorandum EDM2.2.2, Security Requirements for Certain Licensees and for Prescribed Persons Importing Tobacco Products. Information for prescribed persons who import tobacco products can be found in Excise Duty Notice EDN28, Becoming a Prescribed Person under the New Tobacco Stamping Regime.
3. As per paragraphs 5(2)(c) and (d) of the Regulations Respecting Excise Licences and Registrations, bonds acceptable to the CRA as security under the Act include:
- a transferable non-certificate Government of Canada bond (Canada Savings Bonds are not acceptable because they are not transferable);
- a bond issued by a company that is licensed or authorized under the laws of Canada or of a province to carry on the fidelity or surety class of insurance business in Canada and that is approved by the Treasury Board as a company whose bonds can be accepted by the Government of Canada;
- a bond issued by a member of the Canadian Payments Association referred to in section 4 of the Canadian Payments Act;
- a bond issued by a corporation that accepts deposits insured by the Canada Deposit Insurance Corporation or the Régie de l'assurance-dépôts du Québec to the maximum amounts permitted by the statutes under which those institutions were established;
- a bond issued by a credit union as defined in subsection 137(6) of the Income Tax Act; or
- a bond issued by a corporation that accepts deposits from the public, if repayment of the deposits is guaranteed by a Canadian provincial government.
Government of Canada bonds
4. A Government of Canada bond is a liquid investment with a term of 1 to 30 years that pays semi-annual interest and can be sold back into the secondary market prior to maturity by the investor.
5. A Government of Canada bond can be purchased at financial institutions or from investment/securities dealers.
6. A Government of Canada bond is issued in certificate and non-certificate form. Certificate bonds are physical certificates whereas the non-certificate bond is in paperless electronic form and is registered with the CDS Clearing and Depository Services depository system.
7. The CRA will only accept the non-certificate Government of Canada bond. Licensees Footnote 2 or prescribed persons who wish to submit a certificate bond as security must redeem it at a financial institution or an investment dealer to acquire the non-certificate bond.
8. The face value of a Government of Canada bond posted as security must, at the time of submission, be sufficient to cover the security required. The licensee’s or prescribed person’s designated regional excise duty office will be able to assist in determining the appropriate amount to be posted for the security.
9. A properly completed safekeeping agreement and Form Y76, Transfer of Registered Bonds , must be submitted to the CRA for non-certificate Government of Canada bonds. Please see Appendix C for an example of a safekeeping agreement for non-certificate Government of Canada bonds. Form Y76 is available from the CRA website at www.cra-arc.gc.ca/E/pbg/tf/y76/README.html.
10. Financial institutions named in Schedule I, II, and III under the Bank Act are able to sign as acceptable guarantors for the transfer of Government of Canada bonds.
11. Business entities that wish to change their name or officially change their business name must notify the CRA in order to have the bonds held in security transferred to the new name.
12. A written request with a certified “true copy” of a certificate of name change or amended articles of incorporation issued by the provincial or federal authority that approved the change must be submitted to the licensee’s or prescribed person’s designated regional excise duty office.
13. When a Government of Canada bond held in security matures or the bonding agreement expires, the licensee or prescribed person must make arrangements to provide for new security at least one month prior to the bond’s expiry in order to continue receiving semi-annual interest payments.
Form and manner of a surety bond
14. A sample of an acceptable form for a surety bond is provided in Appendix A to this memorandum.
15. Bonds must be signed by the authorized officer(s) of the company and,
- in the case of an incorporated company, bear the impression of its corporate seal or stamp; and
- the signature(s) of the authorized officer(s) signing must be duly witnessed.
16. Bonds must also be signed by the surety and bear the impression of its corporate seal or stamp. The title of the official signing the bond must be shown.
17. The names of the authorized officer(s) and sureties on the bond must conform in detail to those shown on the respective seals.
18. While the form of the bond may not be changed after issuance, the terms and conditions may be changed by issuing a document known as a rider or endorsement. A rider or endorsement to a surety bond is acceptable only for a change in the name of the principal, a change in the amount of the bond, or a change in the name of the surety company.
19. A rider or endorsement to a bond must be signed and sealed by duly authorized officers of the principal and of the surety company. It must also clearly identify the bond to which it refers, including the name of the surety company, the number of the bond, the date of issue, the name of the principal, and the amount for which the bond has been issued.
20. The meaning of “principal” is the security depositor of the bond. When applying for a spirits licence or a tobacco licence or for excise stamps, it refers to the authorized officer(s) of the company that is/are also the licensee or the prescribed person.
Bonds from an acceptable bonding company
21. The Treasury Board Secretariat of Canada issues a list of acceptable bonding companies on a regular basis for the purposes of paragraph 3(b) of this memorandum.
Bonds from a chartered bank or other financial institution
22. Bonds from a chartered bank or another authorized financial institution are treated in the same manner as bonds from a bonding company.
23. All bonds and amendments must bear the corporate seal of the issuing chartered bank, financial institution or acceptable bonding company.
24. Excise Duty Memorandum EDM2.2.4, Approved Financial Institutions and Acceptable Bonding Companies, also provides information for obtaining lists of approved financial institutions and acceptable bonding companies for the purposes of posting security as required in the Act.
Cancellation of a Government of Canada bond
25. To cancel a Government of Canada bond that is posted with the CRA, the licensee or prescribed person must submit a letter to their designated regional excise duty office.
26. In the case of a licensee, the CRA will conduct a final audit to confirm that no outstanding debts exist, all obligations for which the security was posted were met and the privileges associated with the licence are no longer required. In the case of a prescribed person, security deposits will be released when the person is able to account for all stamps that have been issued, by demonstrating that either they have been affixed to imported tobacco products to indicate that duty has been paid or that they have been destroyed or returned in a manner approved by the CRA.
27. After the CRA has reviewed all the necessary requirements, it will direct the financial institution responsible for the safekeeping of the Government of Canada bond to release the bond directly to the licensee or the prescribed person.
Cancellation of a surety bond
28. To cancel a surety bond that has been posted with the CRA, the surety company must provide 60 days' notice in writing of the cancellation. The cancellation notice, which must be sent by registered mail, must be addressed to the licensee’s or prescribed person’s designated regional excise duty office.
29. If a surety company cancels a bond, but the licensee or the prescribed person has not ceased operations and is required to maintain security, replacement security must be provided immediately. If a cancelled bond is not replaced immediately, the following actions may be taken:
- in the case of a licensee, the licence may be suspended or cancelled;
- in the case of a prescribed person, additional stamps will not be issued until the bond is replaced and the CRA may require that unaffixed stamps be returned or destroyed.
Claims against security
30. Security is returned when the privileges afforded with the licence are no longer required and all the obligations for which security was posted are met. Where there has been a contravention of the Act or when normal collection activities have failed to resolve an unpaid balance, the CRA will withhold an amount of the security deposit that is sufficient to cover the unpaid balance.
31. Security posted by a prescribed person is to ensure that the person is able to account for the stamps issued to them and that the applicable duty has been paid. Where the prescribed person is unable to do so, a penalty under section 238.1 of the Act can be imposed; this would create a liability for which the posted security will be used to secure.
32. In the case of surety bonds, financial institution bonds and Government of Canada bonds, the CRA will make a claim for payment from the bonding company or financial institution involved.
Appendix A – Sample of a surety bond
Pursuant to the legislation governing the excise activities identified in section 2 below, we, the "principal" and "co-principal"Footnote 3 and "surety" jointly and severally bind ourselves, our respective heirs, executors, administrators, successors, and assigns in the amount stated below unto Her Majesty in right of Canada, Her heirs and successors as represented by the Minister of National Revenue of Canada. We the principal and co-principal further acknowledge that we are required to furnish and maintain security in the amount noted.
The condition of the above written obligation is such that, if the obligation imposed by the legislative authority is well and truly performed, then this obligation shall be void and of no effect, but otherwise, shall be and remain in full force, virtue and effect. Notwithstanding the foregoing, it is understood and agreed that the liability of the surety under this bond shall be limited to the amount stated herein and shall not be cumulative during the existence of the bond.
4. Specify the period of validity of this bond as determined by the relevant Regulations (check one box only)
Continuous bond – effective date: _____________________ (year-month-day)
Bond for a specified period – commencing on the ______ day of ________ year _____________ and terminating on the ______ day of ________ year _____________
- Provided that the surety gives the Minister sixty days' notice by registered mail of its intention to terminate the obligation undertaken, then this obligation and all liability shall cease insofar as any act of dealing by the principal and co-principal1 subsequent to the termination date is concerned, but otherwise shall remain in full force and effect.
- The liability of the principal and co-principal1 and of the surety hereunder shall arise upon receipt by the surety of a written demand from the Canada Revenue Agency containing documentation to substantiate the claim. However, if the principal and co-principal or the surety provides, within sixty days of the date of such demand, evidence to disprove the claim, then such liability, if any, arises on the date of the notice confirming that the demand is valid. All such demands shall be given to the surety within one year following the date of termination of this bond.
6. In witness whereof, the principal and/or co-principalFootnote 4 has/have hereunto set their hand and seal and the surety has caused these present to be sealed with its corporate seal, attested to by the signature of its duly authorized officials on the day and year indicated below. We, the principal and co-principal, further testify that we have read and understand the relevant legislation indicated herein, and hereby undertake to be strictly governed by the provisions thereof.
7. Signed, sealed and delivered in the presence of ____________________________________ (witness for the principal and co-principal)
8. Dated this _______ day of _________________________________ in the year ________.
Appendix B – Completion instructions for the Excise Bond
Bond number − The surety company or bank shall enter the number assigned to the bond.
The surety company or the bank shall enter the first paragraph using the same wording as in the sample surety bond form in Appendix A.
1. Activity to be secured − If the applicant/co-applicantFootnote 5 is applying for a spirits licence or a tobacco licence, the surety company or bank must specify the type of licence. If the applicant/co-applicant is a prescribed person importing tobacco products, the surety company or bank must specify that it is applying for excise stamps.
2. Legislative authority − The surety company or bank shall make reference to specific parts of the Excise Act, 2001, as follows:
- paragraph 14(1)(a) for a spirits licence,
- paragraph 14(1)(d) for a tobacco licence, or
- subsection 25.1(1) for excise stamps.
3. Bond amount − Enter the amount of the security required in Canadian dollars, in words and numbers (e.g., five thousand dollars in Canadian funds and $CAN 5,000.00).
The surety company or bank shall enter the second paragraph using the same wording as in the sample surety bond form in Appendix A.
4. Specify the period of validity of this bond as determined by the relevant regulations − Since the majority of spirits and tobacco licensees are continuing operations, notwithstanding the requirement to reapply every two years, choose box (a) or (b):
- Continuous bond − It is recommended to select box (a) to facilitate the re-issuance of the licence every two years.
- Bond for a specified period − Where it is necessary to have a bond for a shorter or limited time period, it is recommended to select box (b).
5. Terms −The surety company or bank shall enter the same wording as indicated in paragraphs 5(a) and (b) on the sample surety bond form in Appendix A.
6. The surety company or bank shall enter paragraph 6 using the same wording as the sample surety bond form in Appendix A.
Identification of principal/co-principal − Enter the applicant's full legal name, mailing address and title (this should be the same as the identification of principal/co-principal on application Form L63, Licence and Registration Application Excise Act, 2001).
Signature and corporate seal − The bond form must bear the signature(s) of duly authorized officers of the principal/co-principal indicating names and titles and impressed with the corporate seal if available.
Surety (name and address) − The bond must bear the full legal name of the surety (e.g., insurance company, bank) and must be impressed with the surety's corporate seal.
7. Signed, sealed and delivered in the presence of − Only duly authorized officers of the applicant and/or co-applicant may sign the bond.
8. Dated this – Enter the day, month and year the bond is signed by the principal/co-principal.
Appendix C – Sample of a safekeeping agreement for non-certificate Government of Canada bonds
NON-CERTIFICATE GOVERNMENT OF CANADA BONDS SAFEKEEPING AGREEMENT
THIS AGREEMENT made the __________ day of ________________________, _________.
BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as represented by the Minister of National Revenue, who is represented by _________________________________________, Excise Duty Manager, for the Region of __________________________, Canada Revenue Agency, located at the City of __________________, in the province of _________________ , duly authorized to act on behalf of the Minister of National Revenue pursuant to section 14 or section 25.1 of the Excise Act, 2001 (Her Majesty)
AND: __________________________________________________________________ (full legal name of the Depositor; if an individual, enter surname, then first and middle names), born on __________________________ (day/month/year), for a licensee or for a prescribed person importing tobacco products (the Depositor)
AND: ____________________________________________________________ (full legal name of the financial institution),
located at ____________________________________________________________________________________
___________________________________________________________________ (the Financial Institution)
A. The Depositor has purchased one or more bonds issued by the Government of Canada to fulfill its obligations to post security with Her Majesty in accordance with the Financial Administration Act, and the Excise Act, 2001.
B. Her Majesty agrees to accept as security certain bonds issued by the Government of Canada.
C. The Financial Institution agrees to act as a safekeeper of the security in accordance with the terms of this Agreement, without a fee.
NOW THEREFORE THE PARTIES agree as follows:
The Depositor hereby deposits the following security, or in the case of non-certificate security, other evidence of such security, which has been assigned and transferred or pledged to Her Majesty in accordance with Article 2, with the Financial Institution for safekeeping on behalf of Her Majesty and the Depositor:
GOVERNMENT OF CANADA BONDS
Additional security may be deposited or, in the case of non-certificate security, other evidence of such security furnished, and this Agreement shall be deemed to be amended from time to time so as to reflect such additional security.
2. Assignment and Transfer / Pledge
The Depositor shall assign and transfer, in the name of the Receiver General for Canada, all right, title and interest in the security described in Article 1. In the Province of Quebec, the Depositor shall remit the bond as a pledge to Her Majesty.
The Depositor hereby represents and warrants to Her Majesty and the Financial Institution that the security and any additional security deposited hereunder is not and shall not be subject to any hypothecs, guarantees, mortgages, liens, charges, sureties, security interests or encumbrances.
4. Interest Payments
If interest is earned and/or paid on the security while the security is in safekeeping, the Financial Institution shall arrange for the interest payments to be remitted directly to the Depositor.
5. Withholding Interest Payments
Pursuant to Article 8, and notwithstanding Article 4, Her Majesty has the right to direct the Financial Institution to withhold remittance to the Depositor of interest payments if, in the opinion of Her Majesty, the Depositor contravenes obligations under this Agreement or its statutory obligations under the Excise Act, 2001 for which the security has been posted. In no circumstances shall the Financial Institution inquire, nor is it obliged to inquire, as to whether Her Majesty may give notice pursuant hereto. The Financial Institution shall, upon withholding remittance to the Depositor of an interest payment, within fourteen days of the payment of interest, mail to Her Majesty a cheque payable to the Receiver General for Canada, for a sum equal to the amount of the interest payment.
If, while the security is in safekeeping, the security matures, the Financial Institution shall, upon consulting with the Depositor, redeem the security and reinvest the proceeds in the same type of security, at the then applicable rate, in the name of the Receiver General for Canada and continue to hold such security in safekeeping.
Where a pledge has been used, the Depositor shall commit to enter into a new contract thereby remitting as a pledge, in the name of the Receiver General, all rights, title and interest in the new security acquired according to the terms stated in paragraph 1 of the present article.
7. Delivery of Security
The Financial Institution shall hold the security, or, in the case of non-certificate security, other evidence of such security, on behalf of Her Majesty and the Depositor in an account in the name of the Receiver General for Canada until Her Majesty, by written notice to the Account Executive of Record with a copy to the Branch Manager of the Financial Institution and the Depositor, either:
- directs the Financial Institution to sell or redeem the security on behalf of Her Majesty and deliver the proceeds to Her Majesty by cheque made payable to the Receiver General for Canada, or remit the security to Her Majesty; or
- directs the Financial Institution to deliver the security to the Depositor or its successors or assigns, in which case, Her Majesty shall execute such documents as are reasonably necessary to deliver the security to the Depositor, or its successors or assigns.
8. Breach of this Agreement or the Excise Act, 2001
Her Majesty has the right to direct the Financial Institution to sell, redeem or remit the security pursuant to Article 7(a) if, in the opinion of Her Majesty, the Depositor contravenes obligations under this Agreement or its statutory obligations under the Excise Act, 2001 for which the security has been posted. In no circumstances shall the Financial Institution inquire, nor is it obliged to inquire, as to whether Her Majesty may give notice pursuant to Article 7(a).
9. Duty of Care
In selling or redeeming the security for Her Majesty, the Financial Institution shall take reasonable care to obtain the true market value of the security at the time Her Majesty directs that the security is to be sold or redeemed.
10. Proceeds of Sale
Within fourteen days of receipt of the notice pursuant to Article 7(a), the Financial Institution shall mail to Her Majesty either a cheque, payable to the Receiver General for Canada, for a sum equal to the gross proceeds of the sale or redemption of the security or the security.
11. No Lien
The Financial Institution shall not have any lien or security upon the bond or upon any proceeds from the sale or redemption thereof.
12. No Set-off
The Financial Institution shall have no right to set off or compensate any amount owed to the Financial Institution by Her Majesty or the Depositor against the security or against any proceeds from the sale or redemption thereof.
13. Duties of Financial Institution
The Financial Institution shall have no duties or responsibilities to Her Majesty or the Depositor whatsoever except as expressly provided in this Agreement and shall not have any liability or responsibility arising under any other agreement to which the Financial Institution is not a party. The Financial Institution shall have no liability to Her Majesty or the Depositor for the performance of the security or for the diminution in value of the security. The Financial Institution shall not be responsible for monitoring the value of the security or for ensuring its market value is maintained at or conforming to any value.
14. Reliance on Notice Given by Her Majesty
The Financial Institution is entitled to deal with Her Majesty as owner of the security and any additional security for all purposes hereunder, and may rely upon any notice given by Her Majesty or its representative in accordance with this Agreement and the Financial Institution shall not be liable or responsible to Her Majesty, the Depositor or any other person for any action taken or omission in reliance upon such notice.
15. Third Party Proceedings Against Security
If the security deposited hereunder shall be attached, garnished, seized or levied upon under any court order or statutory order or similar order or direction, or if the withdrawal, delivery, trading or transfer of the security shall be prohibited or enjoined by any statutory order or order of any court or authorized body, then as soon as reasonably practicable after receipt of the applicable writ, order, judgment, decree, statutory order or other similar process (herein called the ’Writ’) and in any event prior to complying with such Writ, the Financial Institution shall notify and provide Her Majesty and the Depositor with a copy of such Writ, and shall consult with Her Majesty on how such Writ should be handled.
If, prior to consulting with Her Majesty, the Financial Institution is, in the opinion of its legal counsel, legally compelled to obey and comply with any such Writ or else stand liable for contempt of court or other fine or penalty, the Financial Institution shall not be liable to either Her Majesty or the Depositor by reason of such compliance. In the event the Financial Institution is served with a claim involving the security, the Financial Institution shall promptly notify and provide Her Majesty and the Depositor with a copy of such claim.
The Depositor or its successors or assigns shall indemnify and save harmless Her Majesty and the Financial Institution from and against all claims, demands, damages, losses, costs and expenses made against or incurred, suffered or sustained by Her Majesty or the Financial Institution and based upon or arising out of any action taken in accordance with this Agreement. This indemnity shall survive the termination of this Agreement.
Her Majesty shall request the Financial Institution to send to the Canada Revenue Agency, with a copy to the Depositor, any statement related to the security.
18. Representative of Her Majesty
Wherever in this Agreement Her Majesty is authorized or empowered to do, perform or consent to any act, matter or thing, such act, matter or thing may be done, performed or consented to on behalf of Her Majesty by an Excise Duty Manager or such other person named in a written notice mailed to the Financial Institution and the Depositor.
This Agreement may be terminated by the Financial Institution upon no less than 90 days’ prior written notice thereof to Her Majesty and the Depositor, and the security shall be delivered to the Depositor at the Depositor's address.
20. New Safekeeping Agreement
If this Agreement is terminated in accordance with Article 19, the Depositor shall, before the expiry of the notice provided by the Financial Institution, enter into a new Safekeeping Agreement with a new financial institution.
21. Notices to Her Majesty
Any notice, statement, cheque or other document to be provided to Her Majesty under this Agreement shall be sent to the Excise Duty Manager below. In the Excise Duty program, such act, matter or thing may be done, performed or consented to on behalf of Her Majesty by the Excise Duty Manager or such other person named in a written notice mailed to the Financial Institution and the Depositor.
Excise Duty Manager
22. Notices to the Financial Institution
Any notice, statement, cheque or other document to be provided to the Financial Institution under this Agreement shall be sent to the Financial Institution at the address appearing on the first page of this Agreement to the attention of the Account Executive of Record.
23. Amendment of Client Account Agreement
The Financial Institution's Client Account Agreement is hereby amended wherever necessary to the extent it is inconsistent with this Agreement, so as to permit the safekeeping of the security by the Financial Institution pursuant hereto.
24. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the provinces and territories of Canada and the laws of Canada applicable therein.
IN WITNESS WHEREOF the parties have executed this Agreement as of the date first above-mentioned.
ON BEHALF OF HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by the Minister of National Revenue,
NAME, ADDRESS AND SEAL OF THE FINANCIAL INSTITUTION
NAME AND ADDRESS OF THE SECURITY DEPOSITOR
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