Tax and Revenue Administration Fuel Tax Act Information Circular FT-9

FT-9/ March 2007

ALBERTA FUEL TAX ACT INFORMATION CIRCULAR -
AUDITS, OBJECTIONS, AND WAIVERS OF PENALTIES AND INTEREST

(Effective April 1, 2007)

NOTE: This Information Circular is intended to explain legislation and provide specific information. Every effort has been made to ensure the contents are accurate. However, if a discrepancy should occur in interpretation between this Information Circular and governing legislation, the legislation takes precedence.

This Information Circular explains the following:

• Inspection, Audit or Examination
• Filing a Notice of Objection
  • Late-filed objections
• Consideration of the Notice of Objection
• Appeals
• Waiver of Penalties and Interest
  • Extraordinary circumstances
  • Circumstances under which waiver generally will not be made
  • Other considerations
  • Waiver application process

INSPECTION, AUDIT OR EXAMINATION

1. Alberta Finance, Tax and Revenue Administration (TRA) is authorized to conduct inspections, audits or examinations of records to determine whether fuel tax has been properly paid and remitted and whether benefits and rebates have been properly provided and claimed, in accordance with the Alberta Fuel Tax Act (the Act). Persons or entities selected for inspection, audit or examination are required to make their records available to TRA on request.
   
   
2. TRA staff, the Royal Canadian Mounted Police, municipal police forces, Alberta Gaming and Liquor Commission (AGLC), Fish and Wildlife officers, and Motor Transport staff enforce the provisions of the Act. Enforcement activities include sampling fuel to ensure eligible use of marked fuel, and investigating cases of suspected fuel tax evasion.
   
   
3. Persons who
   
   
   1. do not properly pay or remit tax,
      
      
   2. dye fuel when not authorized to do so,
      
      
   3. make false or deceptive entries in records,
      
      
   4. do not file a return or provide information when required to do so,
      
      
   5. sell marked fuel or clear tax-exempt fuel to unauthorized purchasers, or
      
      
   6. in any other way contravene the Act or Regulations,

are guilty, on conviction, of an offence.

4. Legislated fines vary depending on the nature of the offence and whether it is a first or a subsequent offence. Maximum fines can include a specified dollar amount plus an amount equal to three times the fuel tax, rebate or benefit involved, and a jail term. See Information Circular FT-10, Offences and Related Penalties, for more information.
   
   

FILING A NOTICE OF OBJECTION

5. The Tax Services Branch of TRA reviews objections to notices of:
   
   
   • assessment or reassessment of fuel tax, interest or penalties;
     
     
   • refusal to issue a fuel tax exemption certificate;
     
     
   • disallowance of a refund, credit or allowance claimed;
     
     
   • disallowance of a rebate for fuel used for prescribed purposes;
     
     
   • disallowance of an Alberta Farm Fuel Distribution Allowance (AFFDA) claimed;
     
     
   • disallowance of a reimbursement of an AFFDA claimed;
     
     
   • cancellation of a fuel tax exemption certificate; or
     
     
   • refusal, cancellation or suspension of a registration under the Act.
     
     
6. A separate Notice of Objection must be filed, in the required format, for each action to which objection is made, within 90 days of the date of mailing of the notice of the action leading to the objection. If sent by registered mail, the date of registering the mail must be within the specified 90-day period. The date TRA receives the objection applies when the objection is filed by any other means of service.
   
   
7. Notice of objection forms are available on TRA's website or by contacting TRA. The completed notice should be sent to:

   TAX SERVICES BRANCH
   TAX AND REVENUE ADMINISTRATION
   9811 – 109 STREET
   EDMONTON AB T5K 2L5

Late-filed objections

8. If a person has not filed a notice of objection within the 90-day time limit, the Act allows the person to apply for an extension of time to file an objection. The application, accompanied by a copy of the notice of objection, must be served on TRA within one year from the expiration of the 90-day limit for serving the notice. The application must set out the reasons why the objection was not served within the allowed time limit and show:
   
   
   • why the person was unable to act or to instruct another to act on their behalf within the time limit for filing a notice of objection, or that the person intended in good faith to object;
     
     
   • why, given the reasons set out in the application and the circumstances, it would be just and equitable to grant the extension; and
     
     
   • the application was made as soon as circumstances allowed.

9. The application should be sent to TRA at the address shown above. If sent by registered mail, the date of registering the mail must be within the specified time period. The date TRA receives the application applies when the application is served by any other means of service.
   
   
10. Where an application for an extension of time to file a Notice of Objection has been refused, or TRA has not replied to the request within 90 days of being served, the Act allows a person to apply to the Court of Queen's Bench (the Court) to have the application granted.
    

CONSIDERATION OF THE NOTICE OF OBJECTION

11. On receipt of a Notice of Objection, an appeals officer will review the objection and:
    
    
    • confirm, vary or vacate the assessment or disallowance;
      
      
    • serve a new notice of assessment or give a new notice of disallowance;
      
      
    • issue a fuel tax exemption certificate or a notice confirming the refusal to issue a fuel tax exemption certificate;
      
      
    • revoke the cancellation of a fuel tax exemption certificate, issue a new fuel tax exemption certificate or a new notice confirming the cancellation of the fuel tax exemption certificate; or
      
      
    • confirm the refusal, cancellation or suspension of a registration, register the applicant, renew the registration or revoke the suspension or cancellation of the registration.

APPEALS

12. If a person indicates in a Notice of Objection filed that they wish to appeal immediately to the Court and waives reconsideration of the action by TRA, TRA may file a copy of the Notice of Objection with the clerk of the Court and notify the person in writing.
    
    
13. A person may also file an appeal if 90 days have passed since the person served a Notice of Objection on TRA and a decision has not been made.
    
    
14. If a person is dissatisfied with a decision made by TRA regarding an objection, the person may file an appeal with the Court within 90 days of the date of mailing of the response to the Notice of Objection.
    
    
15. An appeal is begun by serving a Notice of Appeal on TRA by registered mail, together with a copy of the Notice of Objection. A copy of each document must also be filed with the Clerk of the Court.
    
    
16. The Court may
    
    
    
    1. dismiss the appeal, or
       
       
    2. allow the appeal and
       
       
       • vacate the assessment or disallowance,
         
       • vary the assessment or disallowance,
         
       • restore the assessment or disallowance,
         
       • refer the assessment or disallowance back to the Minister for reconsideration,
         
       • order TRA to issue a fuel tax exemption certificate,
         
       • order TRA to revoke the cancellation of a fuel tax exemption certificate or issue a new certificate, or
         
       • order TRA to register the applicant or renew the registration or revoke the cancellation or suspension of the registration.

WAIVER OF PENALTIES AND INTEREST

17. Under the provisions of the Act, TRA is authorized to waive penalties or interest imposed on a person.
    
    
18. Waivers of a penalty and interest are intended to provide relief in extraordinary circumstances not covered by the Act or administrative policy. Their use is a last resort and a request for relief will be reviewed as such. For more information, see “Extraordinary Circumstances”.
    
    
19. Penalties that relate to false statements made knowingly or through negligence, carelessness, or wilful default generally will not be waived.
    
    
20. If a disputed liability relates to the application of the Act and Regulation and there is time to object, a Notice of Objection can be filed with TRA's Tax Services Branch at the address shown above.

Extraordinary Circumstances

21. Penalties or interest may be waived where extraordinary circumstances prevented a person or its agent from complying with the Act. Examples of such circumstances include:
    
    
    • natural disasters such as flood, fire storm;
      
      
    • personal tragedy, such as a serious illness or death of, or in the family of, the person who oversees and ensures compliance with the Act and regulation;
      
      
    • civil disturbances.
      
      
22. A postal strike is not normally sufficient reason to waive interest on late payment because payments can be made at most Alberta financial institutions. Also, during postal strikes TRA arranges for the filing of return at designated government centres throughout the province.
    
    
23. TRA must be satisfied that, despite the extraordinary circumstance, the person made all reasonable efforts to comply with the Act. This includes filing returns and remitting the fuel tax by the due date. If a person fails to file a return or remit the tax by the due date, and the extraordinary circumstances leading to the request or a waiver of interest did not occur until after the due date, TRA generally will not waive the interest.

Circumstances Under Which Waiver Generally Will Not Be Made

24. Interest and penalties are charged when TRA detects and corrects errors in filed returns or applications. This may not take place until a review of the return or application is made several months after the initial assessment. In these cases, the assessed charges are not subject to waiver due to this delay, unless the delay was unreasonable and outside of normal TRA review practice. Further charges usually will not be waived because of error, lack of knowledge, misrepresentation or misapplication on the part of the person, its principals or representatives. TRA does not waive penalties or interest for financial hardship reasons.

Other Considerations

25. Applicants' history of compliance with their obligations under the Act, efforts to prevent the liability or take corrective action, and care in conducting their affairs are all factors considered by TRA before a decision for a waiver is made.
    
    
26. An applicant should not seek relief from penalties or interest by more than one means at any one time. If an applicant has filed an objection or appeal, or has otherwise requested a reassessment, that applicant should not concurrently be seeking a waiver of penalties or interest on the same issue.

Waiver Application Process

27. Persons or their agents who believe their case meets the above guidelines should send a request for waiver of penalty or interest in writing to:

    TAX SERVICES BRANCH
    TAX AND REVENUE ADMINISTRATION
    9811 – 109 STREET
    EDMONTON AB T5K 2L5

An application for a waiver of penalties and interest must be made within four calendar years from the end of the calendar year in which the penalty or interest is assessed.

28. The request for waiver should include the:
    
    
    • person's name and address;
      
      
    • representative's name and address (if applicable);
      
      
    • name under which the business operates;
      
      
    • the person's business identification number;
      
      
    • collection periods involved;
      
      
    • description of the penalty or interest for which the waiver is sought and the amount involved;
      
      
    • reasons the penalty or interest should be waived, supported by documentation and a chronology of events, as applicable; and
      
      
    • description of previous contacts with TRA or other areas of Alberta Finance on the issue.
      
      
29. During consideration of the waiver request the person may be asked for more information or documentation.
    
    
30. TRA will review the request in detail and consider all relevant factors. The person requesting the waiver will be informed of the final decision in writing. The decision rendered by TRA is final and not subject to further consideration, objection or appeal.
    
    
31. Any resulting changes to penalties or interest will be made through an adjustment to the person's account, or through reassessment. No interest will be paid on refunded monies.