Accord d'application de la taxe sur les produits et services de la Première nation de Tsawwassen

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WHEREAS:

The Tsawwassen First Nation Final Agreement was brought into effect by the Tsawwassen First Nation Final Agreement Act, S.C. 2008, c.32, and the Tsawwassen First Nation Final Agreement Act, S.B.C. 2007, c.39;

Clause 1 of the taxation chapter of the Tsawwassen First Nation Final Agreement states that the Tsawwassen Government may make laws in respect of (a) direct taxation of Tsawwassen Members within Tsawwassen Lands in order to raise revenue for TFN purposes; and (b) the implementation of any taxation agreement entered into between Tsawwassen First Nation and Canada or British Columbia;

Clause 4 of the taxation chapter of the Tsawwassen First Nation Final Agreement states that, from time to time, at the request of the Tsawwassen First Nation, Canada and British Columbia, together or separately, may negotiate and attempt to reach agreement with Tsawwassen First Nation in respect of: (a) the extent, if any, to which the power of Tsawwassen Government under subclause 1.a may be extended to apply to persons, other than Tsawwassen Members, within Tsawwassen Lands; and (b) the manner in which the taxation powers of Tsawwassen Government under subclause 1.a, as extended by the application of subclause 4.a, will be coordinated with existing federal or provincial tax systems, including: (i) the amount of tax room that Canada or British Columbia may be prepared to vacate in favour of taxes imposed by Tsawwassen First Nation; and (ii) the terms and conditions under which Canada or British Columbia may administer, on behalf of Tsawwassen First Nation, taxes imposed by Tsawwassen First Nation;

This Agreement is an agreement referred to in clause 4 of the taxation chapter of the Tsawwassen First Nation Final Agreement;

The Chief has the approval of the Governing Body of Tsawwassen to enter into this Agreement;

Subsection 5(2) of the First Nations Goods and Services Tax Act states 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;

The Parties agree that the consumption by individuals who do not reside within the lands where the First Nation Law applies forms an important component of the TFN tax base;

NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:

Definitions and Interpretation

In this Agreement:

“Assessment” includes reassessment;
“Auditor General” means the Auditor General of Canada and includes, where circumstances require, any officer or class of officer authorized by the Auditor General of Canada;
“Chief” means the Chief of the TFN in accordance with the Tsawwassen Constitution;
“Deferred Amount” is a debt due to Canada by the TFN and means the deferred amount described in clause 23;
“Entitlement Year” means a calendar year throughout which this Agreement is in effect or, if the Agreement is in effect during only a portion of a calendar year, that portion of the calendar year;
“Excise Tax Act” means the Excise Tax Act, R.S.C., 1985, c. E-15;
“Federal Act” means the First Nations Goods and Services Tax Act, S.C.2003, c. 15, s. 67;
“First Nation Law” means the Tsawwassen Goods and Services Tax Act, which is the law referred to in clause 5;
“FNGST” means the tax imposed under the First Nation Law;
“Governing Body of Tsawwassen” means the governing body listed opposite the name of the Tsawwassen First Nation in Schedule 1 to the Federal Act;
“Income Tax Act” means the Income Tax Act, R.S.C., 1985, c. 1 (5th supp.);
“Indian” has the same meaning as in subsection 2(1) of the Indian Act;
“Indian Act” means the Indian Act, R.S.C., 1985, c. I-5;
“Interpretation Act” means the Interpretation Act, R.S.C., 1985, c. I-21;
“Member” means a Member of TFN in accordance with the Tsawwassen Constitution;
“Minister” means the Minister of Finance and includes, where circumstances require, the Deputy Minister or any officer or class of officer authorized by the Minister of Finance;
“Minister of National Revenue” means the Minister responsible for the Canada Revenue Agency and includes, where circumstances require, the Commissioner of the Canada Revenue Agency or any officer or class of officer authorized by the Minister responsible for the Canada Revenue Agency or the Commissioner of the Canada Revenue Agency;
“Net Tax Attributable” for an Entitlement Year means the amount by which the estimate of Tax Attributable to TFN for that Entitlement Year determined in accordance with Annex A exceeds Canada’s share, if any, of that estimate determined in accordance with Annex B;
“Prior Estimate Adjustment” means the difference obtained by subtracting from a re-estimate of Net Tax Attributable for an Entitlement Year the immediately preceding estimate or re-estimate of the Net Tax Attributable for that Entitlement Year;
“Tax Attributable” has the same meaning as in section 5 of the Federal Act;
“Tsawwassen Constitution” means the Constitution of the TFN, as amended from time to time;
“Tsawwassen First Nation Final Agreement” means the Tsawwassen First Nation Final Agreement, between the Tsawwassen First Nation, Her Majesty in right of Canada and Her Majesty in right of British Columbia, as amended from time to time;
“Tsawwassen Lands” means the lands that are described opposite the name of the Tsawwassen First Nation in Schedule 1 to the Federal Act; and
“Working Day” means a day that is not a Saturday or a holiday.

Unless a contrary intention appears, words and expressions used in this Agreement but not defined in clause 1 have the meanings assigned by the Federal Act or, if the words and expressions are not defined in the Federal Act, have the meanings assigned by subsection 123(1) of the Excise Tax Act.
The Interpretation Act applies, with such modifications as the circumstances require, to this Agreement as if it were an enactment.
Where a reference is made in this Agreement 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, First Nation Law, other law or those regulations, as amended from time to time.

Covenants by Canada

Canada agrees that:
1. the tax power of the Governing Body of Tsawwassen in clause 1 of the taxation chapter of the Tsawwassen First Nation Final Agreement is extended to apply to persons other than Members, within Tsawwassen Lands, in accordance with clause 4 of the taxation chapter of the Tsawwassen First Nation Final Agreement to the extent necessary for the Governing Body of Tsawwassen to enact the First Nation Law;
2. the tax power of the Governing Body of Tsawwassen applies in respect of the FNGST and other amounts imposed under the First Nation Law while this Agreement is in effect and in respect of amounts, other than the FNGST, imposed under the First Nation Law after this Agreement ceases to have effect that relate to amounts imposed while this Agreement was in effect; and
3. the Governing Body of Tsawwassen has the power to enact the provisions of the First Nation Law that address, directly or indirectly, fines or terms of imprisonment and other matters related to enforcement, appeals and adjudication in respect of the First Nation Law.
Canada shall act as the agent for the TFN in respect of the administration and enforcement of the First Nation Law, and collect the FNGST and other amounts imposed under that law while this Agreement is 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.
Canada shall account for the amounts collected under the First Nation Law on behalf of the TFN by estimating the Tax Attributable and Net Tax Attributable to the TFN and shall make and account for remittances to the TFN in accordance with this Agreement.
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.

Covenants by the TFN

The TFN agrees that following the effective date of this Agreement, it shall recommend to the Governing Body of Tsawwassen:
1. that it enact, within 90 days following the effective date of this Agreement, a First Nation Law that
  1. is harmonized with Part IX of the Excise Tax Act;
  2. complies with this Agreement; and
  3. respects the covenants set out in clauses 10 and 11.

b. that the First Nation Law come into force on the later of May 1, 2017, a day specified in the First Nation Law
or the effective date of this Agreement.

The TFN 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, an Indian or another person.
The TFN agrees that the First Nation Law shall be consistent with section 12 of the Federal Act. The TFN 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.
The TFN shall provide the Minister in a timely manner with a certified true copy of:
1. the First Nation Law, following its enactment; and
2. any amendment to the First Nation Law, following its enactment.
The TFN 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.
The TFN and its agents and subservient bodies shall pay and account for the 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.

Revenue Estimation

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 be optimal in all instances.
Prior to the beginning of each Entitlement Year, the Minister shall make, in accordance with the provisions in Annex A, an estimate for that Entitlement Year of the Tax Attributable to the TFN.
The sharing, if any, between the TFN and Canada of the amount estimated as Tax Attributable to the TFN for an Entitlement Year shall be calculated in accordance with the provisions in Annex B.
An estimate of Net Tax Attributable for each Entitlement Year shall be made by subtracting, from the estimate of the Tax Attributable to the TFN determined under Annex A for the particular Entitlement Year, the estimate of Canada’s share, if any, determined under Annex B for that Entitlement Year.
Not later than the last day of February of the third and fifth calendar years following each Entitlement Year, or as soon thereafter as is practical, the Minister shall re-estimate, using the procedure set out in clause 18, the Net Tax Attributable to the TFN for that Entitlement Year for the purpose of calculating in each of those years a Prior Estimate Adjustment for that Entitlement Year.
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 second re-estimate for that year, subject to the Minister incorporating any adjustments that may be required to the second re-estimate as set out in the report prepared by the Auditor General that is referred to in clause 30.

Remittances

The Minister shall remit to the TFN 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 16 for that particular Entitlement Year;

B is the amount of Canada’s share determined under clause 17 for that particular Entitlement Year;

C is the sum of the current Prior Estimate Adjustments made in respect of any of the five Entitlement Years immediately preceding that particular Entitlement Year that are open for re-estimation and adjustment or, if there are fewer than five Entitlement Years preceding the particular Entitlement Year, in respect of all the Entitlement Years immediately preceding the particular Entitlement Year that are currently open for re-estimation and adjustment; and

D is the number of months anticipated to be in that particular Entitlement Year.

If the result of the formula in clause 21 in respect of an 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 TFN, subject to clause 23, within that Entitlement Year.
If the sum of the Prior Estimate Adjustments in the formula in clause 21 is negative and less than 20 percent of Net Tax Attributable to the TFN for an Entitlement Year, the Parties may agree to defer the repayment of a portion (hereinafter referred to as the “Deferred Amount”) of the total of the Prior Estimate Adjustments or, if the sum of the Prior Estimate Adjustments is negative and equal to or greater than 20 percent of Net Tax Attributable to the TFN for that year, the Minister may defer the repayment of a portion (also referred to as the “Deferred Amount”) of the total of the Prior Estimate Adjustments and, unless otherwise agreed by the Parties, the Deferred Amount shall be repaid to Canada by the TFN during the two Entitlement Years following the particular Entitlement Year.
Canada shall retain as its property an amount imposed under the First Nation Law if that amount:
1. is not Tax Attributable to the TFN; or
2. is included in Canada’s share of the estimate of Tax Attributable to the TFN in accordance with clause 17.
Prior to each Entitlement Year, or as soon thereafter as is practical, the Assistant Deputy Minister or any authorized officer or class of officer of the Tax Policy Branch of the Department of Finance shall provide the TFN with a written statement for review concerning remittances in respect of that Entitlement Year that includes the following information:
1. the estimated Tax Attributable to the TFN for that year, as determined under clause 16;
2. Canada’s share of the estimated Tax Attributable to the TFN for that year, as determined under clause 17;
3. the Prior Estimate Adjustments, if any, included in determining the remittances for that year;
4. Deferred Amounts, if any, included in determining the remittances for that year;
5. the Population of Relevance for that year as defined in and for the purposes of Annex B; and
6. the remittances for that year.
The first remittance made to the TFN 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 Entitlement Year or as soon thereafter as is practical. Subsequent remittances in respect of the Entitlement Year shall be made on or before the last Working Day of each month thereafter, or as soon thereafter as is practical, for the number of months equal to one less than the number of months in that Entitlement Year.
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.
If no amount is held on behalf of the TFN from which payment under clause 27 may be made in accordance with this Agreement, or the amount of the payment exceeds the amount so held, Canada agrees to make the payment as a recoverable advance and the TFN agrees that the advance shall be recovered against amounts of FNGST subsequently collected on behalf of the TFN.
In the event that this Agreement is terminated, unless the Parties agree otherwise:
1. the remittance in the month in which the Agreement is terminated shall remain the same as set out in the last written statement provided under clause 25 prior to termination;
2. the remittance in the month that follows the month in which the Agreement is terminated shall be adjusted as required to reflect the termination of the Agreement; and
3. re-estimations and prior estimate adjustments for Entitlement Years that would have remained open for re-estimation if the Agreement continued in effect shall continue as if the Agreement were in effect and the Minister shall continue to pay or recover adjustments until the Net Tax Attributable for the Entitlement Year in which the Agreement is terminated is final, subject to the Minister paying or recovering, as the case may be, any adjustments that may be required for the second re-estimate for the Entitlement Year in which the Agreement is terminated, as set out in the report prepared by the Auditor General for that Entitlement Year.

Reporting

The Minister shall provide the TFN with each report prepared by the Auditor General concerning the final determination, in accordance with clause 20, of Net Tax Attributable to the TFN for each Entitlement Year and the remittances in respect of each Entitlement Year.
The statements provided under clause 25 and the reports provided under clause 30 shall be the only statements or reports provided to the TFN by Canada in respect of amounts collected in accordance with this Agreement.
The procedures carried out to prepare the Auditor General’s reports shall be determined by the Auditor General and shall 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 TFN agrees that it has no right to inspect the books and records of Canada in connection with this Agreement.
Unless the Parties agree otherwise, if a report prepared by the Auditor General in accordance with clause 30 indicates that the remittances for a particular Entitlement Year including the Prior Estimate Adjustments based on the re-estimates in respect of that Entitlement Year should be adjusted, the adjustment shall be incorporated as soon thereafter as is practical into the remittances in respect of an Entitlement Year that follows the particular Entitlement Year.

Administration

The Parties agree that the Minister of National Revenue shall have and may exercise all the powers of the TFN 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.
The TFN 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.
Canada shall administer the First Nation Law free of charge for the TFN 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 38) 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.
Canada shall retain interest and penalties that are imposed under the First Nation Law and collected by the Minister of National Revenue.
Unless otherwise agreed by the Parties, the TFN shall pay its own costs, charges and expenses incurred in relation to litigation to which the TFN 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.
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.
The Minister of National Revenue may provide to the TFN 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.
The TFN, 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 TFN shall not be used for any purpose other than the purpose for which it was provided.
Except in its capacity as a registrant or a person required to pay or entitled to receive amounts under the First Nation Law, the TFN shall accept as final and binding all interpretations, Assessments, determinations, decisions, and other actions made or taken by the Minister of National Revenue for the purposes of the First Nation Law.
For the purposes of section 8 of the Federal Act, the Chief, as per section 14 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 Governing Body of Tsawwassen.

TFN Law

Canada shall notify the TFN in writing that the First Nation Law requires amendment, where, in the opinion of the Minister, the First Nation Law does not:
1. comply with this Agreement;
2. provide the Minister of National Revenue with authority sufficient to administer and enforce that law and to collect amounts imposed under that law;
3. admit of sufficient uniformity as between the administration and enforcement of Part IX of the Excise Tax Act and the First Nation Law; or
4. respect the covenants set out in clauses 10 or 11.
Upon receipt of the notice referred to in clause 44, the Chief agrees to propose forthwith to the Governing Body of Tsawwassen an amendment to the First Nation Law to rectify the deficiencies identified in the notice referred to in clause 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 44, the Minister may terminate this Agreement:
1. forthwith, where that notice provides that the First Nation Law does not respect the covenants set out in clauses 10 or 11; or
2. in any other case, not less than six months following receipt of the notice.

Repeal of First Nation Law

Unless the Minister agrees otherwise, the TFN shall provide the Minister with at least six months’ notice of the date on which it intends 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.

Dispute Resolution

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 10, 11, 42, 45, 46, 54 or 55, the Parties shall follow the procedure set out in subclauses (a) through (d) before pursuing other legal remedies.
1. Within 30 days of either the Minister or the Chief receiving written notice from the other of a dispute under this Agreement, the Parties shall convene a first meeting to attempt in good faith to settle the dispute.
2. If, within 60 days after the meeting referred to in subclause (a), the Parties have failed to resolve the dispute, they shall submit the dispute to a jointly selected mediator and share equally the costs of that mediation.
3. If, after 30 days following the period referred to in subclause (b), the Parties are unable to agree on the choice of a mediator, the matter shall be referred to a judge of the Supreme Court of British Columbia who shall 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.
4. The Parties agree to participate in good faith in the mediation process for a period of 60 days once a mediator has been selected.
The Parties agree that a decision arising from the dispute resolution process under clause 48 concerning a dispute in respect of the amount of money due to either Party for an Entitlement Year shall be implemented, notwithstanding clause 20, 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.
The Parties may mutually determine time periods other than those referred to in clause 48.

Amendment

Either Party may at any time request the other Party to review this Agreement and to consider amendments to this Agreement.
Subject to any applicable approvals, authorizations or legislative requirements, the Parties may, in writing, amend or vary this Agreement.

Termination

The Parties may mutually agree to terminate this Agreement at any time on such terms as may be agreed upon by the Parties.
The TFN may terminate this Agreement by giving the Minister not less than six months’ written notice of its intention to terminate the Agreement, including the date upon which this Agreement shall end.
Except where clause 46 applies, the Minister may terminate this Agreement by giving the TFN not less than six months’ written notice of the Minister’s intention to terminate the Agreement, including the date upon which this Agreement shall end.

No Assignment

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.

Saving

Nothing in this Agreement shall 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 or Part IX of the Excise Tax Act.
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 Canada has provided notice that, in the opinion of the Minister, the TFN has not provided sufficient statutory or other authority for the imposition or collection of those amounts.
Where Canada does not 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 and notice has been served in accordance with clause 44, 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 TFN made under this Agreement may be recovered by Canada as a debt due to Canada by the TFN, notwithstanding that such payment was made to the TFN as if there were sufficient authority.

Term

The effective date of this Agreement is the latter of the dates when it is signed by the Parties.
This Agreement shall end:
1. automatically on the 90th day following the effective date of the Agreement if the Governing Body of Tsawwassen has not enacted the attached draft First Nation Law or a law that is similar in all material respects to the attached draft First Nation Law; or
2. automatically on the 90th day following the enactment of the First Nation Law if the First Nation Law is not in force; or
3. in the case of termination in accordance with clause 53, on the date agreed to by the Parties; or
4. in the case of termination by the TFN in accordance with clause 54, on the date specified in the notice given by TFN; or
5. in the case of termination by Canada in accordance with clause 55, on the date specified in the notice given by Canada; or
6. in the case of termination by Canada in accordance with clause 46, on the date determined in accordance with clause 46.

Signature

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 60. Facsimile and scanned signatures shall be accepted the same as original signatures.

For the TFN

Signed on this 23 day of February, 2017,

Originally signed by:

Bryce Williams
Chief, TFN

For the Government of Canada

Signed on this 13 day of March, 2017,

Originally signed by:

William Francis Morneau
Minister of Finance

Annex A – Detailed Revenue Estimation Method

In this annex:

“Alpha Value” for an industry in a province means the percentage, as determined by the Department of Finance or Statistics Canada, of that industry’s output in that province that is consumed immediately by final consumers at places of supply in that province;

“Census” means a census of population or a voluntary, national household survey conducted by Statistics Canada in respect of a province, territory or first nation, as the circumstances may require;

“Final Estimate” means an estimate that is not subject to re-estimation or adjustment and that is based on data that are published as final data or otherwise deemed to be final by the agency that provides the data;

“GST Credit” means an amount equivalent to the aggregate of all amounts that are deemed, under section 122.5 of the Income Tax Act, to have been paid in respect of a calendar year by individuals that are, for the purposes of that Act, residing within British Columbia;

“Immediate Consumption” means the portion, as determined by means of a commodity output vector prepared by the Department of Finance, of total, final, taxable consumption that occurs at places of supply, rather than in residences or elsewhere;

“Interim Estimate” means an estimate that is subject to re-estimation or adjustment and that incorporates data other than final data or data that are deemed to be final;

“RELINC”, as determined in accordance with clause 3 of this annex, means the average income of individuals residing, on December 31 of the calendar year immediately preceding the Entitlement Year, within the lands where the First Nation Law applies divided by the average income of individuals residing, on December 31 of the calendar year immediately preceding the Entitlement Year, within British Columbia;

“RELPOP”, as determined in accordance with clause 4 of this annex, means the number of individuals of age 15 years and older residing, on December 31 of the calendar year immediately preceding the Entitlement Year, within the lands where the First Nation Law applies divided by the total population of individuals of age 15 years and older residing, on December 31 of the calendar year immediately preceding the Entitlement Year, within British Columbia; and

“Residence-Based Consumption” means the portion, as determined by means of a commodity output vector prepared by the Department of Finance, of total, final, taxable consumption that occurs in residences or elsewhere, rather than immediately at places of supply.

In this Agreement, Interim and Final Estimates of Tax Attributable to the TFN for an Entitlement Year shall be determined as follows:

ETA_TFN = (CE R-BC_TFN + CE IC_TFN + Exempt_TFN + Housing_TFN) *
(1 – LIA) * (DEY / DCY)

where

ETA_TFN is an Interim or Final Estimate of Tax Attributable to the TFN;
CE R-BC_TFN is an estimate, determined in accordance with clause 6 of this annex, of Tax Attributable associated with Residence-Based Consumption occurring within the lands where the First Nation Law applies;
CE IC_TFN is an estimate, determined in accordance with clause 8 of this annex, of Tax Attributable associated with Immediate Consumption occurring within the lands where the First Nation Law applies;
Exempt_TFN is an estimate, determined in accordance with clause 12 of this annex, of Tax Attributable associated with consumption or use in the provision of exempt supplies by permanent establishments located within the lands where the First Nation Law applies;
Housing_TFN is an estimate, determined in accordance with clause 14 of this annex, of Tax Attributable associated with residential construction occurring within the lands where the First Nation Law applies;
LIA is the proportion, determined in accordance with clauses 16 and 17 of this annex, that the GST Credit for British Columbia for the calendar year represents of the net amount of GST for British Columbia for that calendar year;
DEY is the number of days in the Entitlement Year; and
DCY is the number of days in the calendar year that includes the Entitlement Year.

Unless otherwise agreed by the Parties:
1. Interim and Final Estimates of RELINC for an Entitlement Year shall be based on regional income data or data obtained from a Census;
2. Subject to subclause (c), where the Final Estimate of RELINC is based on data obtained from a Census, the Census data shall be used for determining the Final Estimate of RELINC for all Entitlement Years in the period that begins two years before and ends two years after the year in which that Census is conducted; and
3. as a transitional measure, the Interim Estimate of RELINC used in making the first Interim Estimate of CE R-BC_TFN, Exempt_TFN and Housing_TFN for each of the first five Entitlement Years covered by this Agreement shall not be re-estimated or adjusted when subsequent Interim Estimates or Final Estimates are made in respect of each of those Entitlement Years.
Unless otherwise agreed by the Parties:
1. Interim and Final Estimates of RELPOP for an Entitlement Year shall be based on data obtained from a Census;
2. Subject to subclause (c), where the Final Estimate of RELPOP is based on data obtained from a Census, the Census data shall be used for determining the Final Estimate of RELPOP for all Entitlement Years in the period that begins two years before and ends two years after the year in which that Census is conducted; and
3. as a transitional measure, the Interim Estimate of RELPOP used in making the first Interim Estimate of CE R-BCTFN, Exempt_TFN and Housing_TFN for each of the first five Entitlement Years covered by this Agreement shall not be re-estimated or adjusted when subsequent Interim Estimates or Final Estimates are made in respect of each of those Entitlement Years.
In deciding whether the use of data other than data mentioned in clause 3 or 4 would be more appropriate for estimating RELINC or RELPOP, consideration shall be given to:
1. biases and measurement errors affecting data quality;
2. frequency of the data collection;
3. the extent to which the data represent the populations described in the definitions of RELPOP and RELINC;
4. verifiability by third parties;
5. availability at reasonable cost; and
6. consistency of data sources with those used in other tax administration agreements that are similar to this Agreement.
An Interim or Final Estimate of CE R-BC_TFN for an Entitlement Year shall be determined as follows:

CE R-BC_TFN = CE R-BC * RELPOP * RELINC

where

CE R-BC is the estimated net amount of value-added tax associated with Residence-Based Consumption for that Entitlement Year for British Columbia as determined in accordance with clause 7 of this annex.

The Parties agree that:
1. for the purpose of making an Interim Estimate of CE R-BC for an Entitlement Year, the net amount of value-added tax associated with Residence-Based Consumption for that Entitlement Year in British Columbia shall be based on a Residence-Based Consumption vector supplied by the Department of Finance and the preliminary Provincial Input-Output Tables (“PIOTs”) prepared by Statistics Canada for the calendar year that includes that Entitlement Year or, where preliminary PIOTs are not available for the calendar year that includes the Entitlement Year, on preliminary or final PIOTs for other years together with any adjustments that the Minister believes will yield a more accurate estimate of the net amount of value-added tax associated with Residence-Based Consumption in British Columbia for that Entitlement Year; and
2. for the purpose of making a Final Estimate of CE R-BC for an Entitlement Year, the net amount of value-added tax associated with Residence-Based Consumption for that Entitlement Year in British Columbia shall be based on a Residence-Based Consumption vector supplied by the Department of Finance and the final PIOTs prepared by Statistics Canada for the calendar year that includes that Entitlement Year.
An Interim or Final Estimate of CE IC_TFN for an Entitlement Year shall be determined as follows:

CE IC_TFN = ∑ⁿ_j=1 {∑^m_i=1 (Tax_{COLLECTIBLE i, j} * α_j)} + GAMETAX_TFN

where

j represents a particular industry, other than the casinos and gaming industry;
n represents the number of industries, other than the casinos and gaming industry, that are represented in Statistics Canada’s PIOTs;
i represents a particular permanent establishment in industry j;
m represents the total number of permanent establishments in industry j that are situated within the lands where the First Nation Law applies;
Tax_{COLLECTIBLE i,j}represents the amount of value-added tax estimated by Statistics Canada or the Department of Finance to be collectible by permanent establishment i in industry j for the calendar year that includes the Entitlement Year;
α_j represents the Alpha Value for industry j; and
GAMETAX_TFN represents the estimated value-added tax associated with casinos operating within the lands where the First Nation Law applies, excluding Tax Attributable associated with gaming included in CE R-BC_TFN and Exempt_TFN, determined in accordance with clause 10 of this annex.

The Parties agree that for the purposes of determining α_j, Statistics Canada or the Department of Finance will perform the calculations based on final or preliminary PIOTs for the calendar year that includes the Entitlement Year under consideration or, where final or preliminary PIOTs are not available for the calendar year that includes the Entitlement Year, on final or preliminary PIOTs for other years together with any adjustments that the Minister believes will yield a more accurate estimate of α_j for that Entitlement Year.
For the purposes of this annex, Interim and Final Estimates of GAMETAX_TFN will be determined by Canada using data selected at the discretion of the Minister. These data may include data from the British Columbia Lottery Corporation, the Casino(s) or the TFN. If, for a particular Entitlement Year, there is no Casino operating within the lands where the First Nation Law applies, the parties agree that Interim and Final Estimates of GAMETAX_TFN will be equal to zero.
The Parties agree that:
1. prior to September 30 of each Entitlement Year, the TFN will provide to the Department of Finance a list of permanent establishments operating within the lands where the First Nation Law applies, including legal names, operating names if different from legal names, addresses and, where possible, GST registration numbers, plus an identification of any permanent establishments that ceased operating within the lands where the First Nation Law applies subsequent to the provision by the TFN of its previous list and an identification of any permanent establishments that commenced operations within the lands where the First Nation Law applies subsequent to the provision of the previous list;
2. the Department of Finance or its agent, will classify the operating permanent establishments on the list according to the North American Industry Classification System (NAICS);
3. Canada will estimate the total value-added tax collectible by permanent establishments operating within the lands where the First Nation Law applies using one or more of the following data sources: current Statistics Canada survey databases, PAYDAQ files, GST registrant files, or GIFI files. If tax data or sales data cannot be located for a permanent establishment on the list referred to in subclause (a), then Canada may choose to estimate the value-added tax collectible by that permanent establishment using some other reasonable means including business profiling or, alternatively, may choose not to include, in the Interim Estimate or Final Estimate of CE IC_TFN, the value-added tax collectible by that permanent establishment.
An Interim or Final Estimate of Exempt_TFN shall be determined as follows:

Exempt_TFN = Exempt * RELPOP * RELINC

where Exempt is the estimated net amount of value-added tax associated with supplies acquired for consumption or use in the provision,
by suppliers in British Columbia, of exempt supplies.

The Parties agree that:
1. for the purpose of making an Interim Estimate of Exempt for an Entitlement Year, the net amount of value-added tax associated with exempt supplies for that Entitlement Year in British Columbia shall be based on preliminary PIOTs prepared by Statistics Canada for the calendar year that includes that Entitlement Year or, where preliminary PIOTs are not available for the calendar year that includes the Entitlement Year, on preliminary or final PIOTs for other years together with any adjustments that the Minister believes will yield a more accurate estimate of the net amount of value-added tax associated with exempt supplies in British Columbia for that Entitlement Year; and
2. for the purpose of making a Final Estimate of Exempt for an Entitlement Year, the net amount of value-added tax associated with exempt supplies for that Entitlement Year in British Columbia shall be based on the final PIOTs prepared by Statistics Canada for the calendar year that includes that Entitlement Year.
An Interim or Final Estimate of HousingTFN shall be determined as follows:

Housing_TFN = Housing * RELPOP * RELINC

where Housing is the estimated net amount of value-added tax associated with residential construction occurring within British Columbia.

An Interim or Final Estimate of Housing for each Entitlement Year will be determined by Statistics Canada or the Department of Finance.
The Parties agree that, for the purpose of making an Interim Estimate of LIA for an Entitlement Year:
1. the net amount of GST for British Columbia for that Entitlement Year shall be based on preliminary PIOTs prepared by Statistics Canada for the calendar year that includes that Entitlement Year or,where preliminary PIOTs are not available for the calendar year that includes the Entitlement Year, on preliminary or final PIOTs for other years together with any adjustments that the Minister believes will yield a more accurate estimate of the net amount of GST for British Columbia for that Entitlement Year; and
2. the GST Credit for that Entitlement Year shall be based on the Canada Revenue Agency’s Interim or Final Estimate in respect of the calendar year that includes that Entitlement Year or, where Interim or Final Estimates in respect of the calendar year that includes the Entitlement Year are not available, on Interim or Final Estimates for other years together with any adjustments that the Minister believes will yield a more accurate estimate of the GST Credit for that Entitlement Year.
The Parties agree that, for the purpose of making the Final Estimate of LIA for an Entitlement Year:
1. the net amount of GST for British Columbia for that Entitlement Year shall be based on the final PIOTs prepared by Statistics Canada for the calendar year that includes that Entitlement Year; and
2. the GST Credit for that Entitlement Year shall be based on the tax administration data for British Columbia applicable to the calendar year that includes that Entitlement Year as provided by the Canada Revenue Agency for public use as, or as otherwise deemed by the Canada Revenue Agency to be, the final GST Credit statistics in respect of the calendar year that includes that Entitlement Year.

Annex B – Revenue Sharing Mechanism

In this annex:

“Average Net GST Per Canadian” (AvNetGSTpC) for an Entitlement Year is the total amount of net GST for Canada for that Entitlement Year divided by the total population of Canada for that Entitlement Year, where:

the amount of net GST for Canada for the Entitlement Year is determined in accordance with clause 2 of this Annex; and
the total population for Canada for the Entitlement Year is the population for Canada published by Statistics Canada in respect of the calendar year that includes the Entitlement Year;

“DCY” is the number of days in the calendar year that includes the Entitlement Year;

“DEY” is the number of days in the Entitlement Year;

“Estimate of Tax Attributable to the TFN,” for an Entitlement Year is an Interim or Final Estimate of Tax Attributable to the TFN for that Entitlement Year determined pursuant to Annex A;

“Population of Relevance” (PofR) for an Entitlement Year is the sum of:
“Threshold 1” for an Entitlement Year is an amount equal to:

2 * (AvNetGSTpC) * (PofR) * (DEY / DCY);

“Threshold 2” for an Entitlement Year is an amount equal to:

8 * (AvNetGSTpC) * (PofR) * (DEY / DCY).

Unless otherwise agreed by the Parties:
1. for the purpose of making an Interim Estimate of the amount of net GST for Canada for an Entitlement Year, preliminary PIOTs prepared by Statistics Canada for the calendar year that includes that Entitlement Year shall be used or,where preliminary PIOTs are not available for the calendar year that includes that Entitlement Year, preliminary or final PIOTs for other years together with any adjustments that the Minister believes will yield a more accurate estimate of the amount of net GST for Canada for that Entitlement Year;
2. for the purpose of making the Final Estimate of the amount of net GST for Canada for an Entitlement Year, the final PIOTs prepared by Statistics Canada for the calendar year that includes that Entitlement Year shall be used.
For each estimate of Tax Attributable to the TFN for an Entitlement Year, Canada’s share 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 Estimate of Tax Attributable to the TFN, for that Entitlement Year;

B is
1. the result obtained by subtracting Threshold 1 from Threshold 2, for that Entitlement Year, where the Estimate of Tax Attributable to the TFN is greater than or equal to Threshold 2, for that Entitlement Year,
2. the result obtained by subtracting Threshold 1 from the Estimate of Tax Attributable to the TFN, for that Entitlement Year, where the Estimate of Tax Attributable to the TFN is greater than Threshold 1 but less than Threshold 2, for that Entitlement Year, and
3. nil in any other case; and
C is
1. the result obtained by subtracting Threshold 2 from the Estimate of Tax Attributable to the TFN, for that Entitlement Year, where the Estimate of Tax Attributable to the TFN is greater than Threshold 2, for that Entitlement Year, and
2. nil in any other case.

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Date de modification :: 2018-06-19

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Accord d'application de la taxe sur les produits et services de la Première nation de Tsawwassen

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