Provincial Sales Tax Act, Part 10 - Appeals

Section 211 – Appeal To Minister

PST - SEC.211/Int.

References:

Act: Section 1 "director"; Section 57; Section 168; Section 173; Section 198; Section 199; Section 199.1; Section 199.2; Section 202; Section 203; Section 204; Section 205; Section 206; Section 206.1; Section 210; Section 212; Section 221

PSTR: Section 93

Bulletin GEN 002

Interpretation (Issued: 2013/12; Revised 2023/08, 2024/03)

Effective August 14, 2020, Bill 4, Budget Measures Implementation Act, 2020, amended section 211 by adding subsection 211(7) and subsection 211(8). The new subsections provide that a minister may, in writing, delegate any power or duties to a named person or to a class of persons under this section. This allows for appeal decision making authority to be delegated to other officials in the Ministry of Finance such as the executive director of the Appeals and Litigation Branch.

Effective October 31, 2019, Bill 35, Miscellaneous Statutes Amendment Act (No.2), 2019, provides under section 211 consistent terminology for the purposes of clarifying that the general rules for giving documents apply by replacing “issued” and “served” with “given”. Subsection 211(5)(c) is repealed and substituted for the same purpose and for providing consistent language as in similar provisions in other provincial tax legislation related to giving an applicant written notice. 

Effective April 1, 2013, Bill 54, Provincial Sales Tax Act, 2012 as amended by Bill 2, Provincial Sales Tax Transitional Provisions and Amendments Act, 2013 provides under section 211 that certain decisions of the director may be appealed to the minister, and for an appeal to the minister from a decision by the government of Canada to disallow a refund under section 57 [tax payable to collection agent even though exemption claimed]. Section 211 also provides for various administrative procedures related to appeals to the minister.

Subsection 211(1) provides that an appeal to the minister lies from a decision of the director about any of the following:

(a) a determination under subsection 221(12) [associated corporations];

(b) a refund of tax paid or remitted under the Act;

(c) a refusal to register a person under section 168 [registration];

(d) a suspension or cancellation of a person's registration under section 173 [suspension or cancellation of registration];

(e) an assessment under any of the following:

(i) section 198 [assessment of tax not remitted by collector];

(ii) section 199 [assessment if tax not paid or remitted or if excess refund];

(iii) section 206 [interest until notice of assessment given];

(iii.1) section 206.1 [interest after notice of assessment given];

(iv) section 210 [assessment against board member];

(f) an imposition of a penalty under any of the following:

(i) section 202 [failure to register];

(ii) section 203 [failure to levy tax];

(iii) section 204 [incorrect information];

(iv) section 205 [failure to remit or pay tax].

Subsection 211(2) provides that an appeal to the minister lies from a decision to disallow a refund applied for under section 57 [tax payable to collection agent even though exemption claimed].

Subsection 211(3) provides that written notice of the appeal must be given on the minister within 90 days after the date of the director's notice of decision.

Subsection 211(4) provides that the appellant must set out in the notice of appeal a statement of all material facts and the reasons in support of the appeal.

Subsection 211(5) provides that on receiving the notice of appeal, the minister must

(a) consider the matter,

(b) subject to subsection 211(6), affirm, amend or change the assessment, decision, amount imposed or nature of the assessment, and

(c) promptly give the appellant written notice of the result of the appeal.

Subsection 211(6) provides that if an appeal relates to a matter referred to in paragraph 211(1)(c), the minister may

(a) affirm the decision of the director, or

(b) direct the director to reconsider the application for registration under section 168.

Section 211.1 – Notice of Appeal

PST - SEC.211.1/Int. 

References:

Act: Section 211; Section 229.04

Bulletin GEN 002

Interpretation (Issued: 2022/10)

Effective October 1, 2022, the Provincial Sales Tax Act, as amended by Bill 6, Budget Measures Implementation Act, 2022, provides under section 211.1 that a notice of appeal under section 211 [appeal to minister] is deemed to have been received by the minister when received at a location and by a method specified by the minister.

For the purposes of this section, the minister has specified that a notice of appeal received by the Tax Appeals and Litigation Branch by courier, fax or tracked mail is deemed to have been received by the minister.

Section 229.04 [when documents are given to minister], which states that documents for the minister are deemed to have been received if delivered to the office of the deputy minister, is repealed effective October 1, 2022. However, the previous rules will continue to apply for matters dated on or before September 30, 2022. If an appealable decision under section 211 is dated on or before September 30, 2022, a notice of appeal delivered to the office of the deputy minister will be deemed to have been received by the minister.

Section 212 – Appeal To Court

PST - SEC.212/Int.

References:

Act: Section 211

PSTR: Section 93

Bulletin GEN 002

Interpretation (Issued: 2013/12; Revised: 2023/10)

Effective June 17, 2021, Bill 4, Budget Measures Implementation Act, 2021, repeals subsection 212(8). This change allows parties to appeal a BC Supreme Court decision without first obtaining leave of a justice of the Court of Appeal. The amendment harmonizes appeal procedures with the Court of Appeal Act, which provides an automatic right of appeal of a lower court’s decision.

Effective April 1, 2013, Bill 54, Provincial Sales Tax Act, 2012 provides under section 212 that a decision of the minister under section 211 may be appealed to the Supreme Court (of British Columbia), and subsequently, to the Court of Appeal. Section 212 also provides for various administrative procedures related to appeals to the Supreme Court.

Subsection 212(1) provides that a decision of the minister under section 211 [appeal to minister] may be appealed to the Supreme Court by way of a petition proceeding.

Subsection 212(1) provides that the Supreme Court Civil Rules relating to petition proceedings apply to appeals under section 212, but Rule 18-3 of those rules does not apply.

Subsection 212(3) provides that a petition must be filed in the court registry within 90 days after the date on the minister's notice of decision.

Subsection 212(4) provides that in the petition filed under subsection 212(3), the government must be designated "Her Majesty the Queen in right of the Province of British Columbia".

Subsection 212(5) provides that within 14 days after the filing of the petition under subsection 212(3), the petition must be served on the government in accordance with section 8 of the Crown Proceeding Act.

Subsection 212(6) provides that an appeal under section 212 is a new hearing that is not limited to the evidence and issues that were before the minister.

Subsection 212(7) provides that the court may

(a) dismiss the appeal,

(b) allow the appeal,

(c) vary the decision from which the appeal is made, or

(d) refer the decision back to the director for reconsideration.

Subsection 212(8) provides that an appeal lies from a decision of the court to the Court of Appeal with leave of a justice of the Court of Appeal.

Section 213 – Irregularities

PST - SEC.213/Int.

References:

Act: Section 1 "assessment", "director"

Interpretation (Issued: 2013/12; Revised: 2023/08)

Effective April 1, 2020, Bill 2, Budget Measures Implementation Act, 2018, amended section 213 by adding that, in addition to an assessment made or penalty imposed, a fee imposed under the Act must also not be varied or disallowed by a court because of an irregularity, informality, omission or error on the part of a person in the observation of any directory provision. The addition of a “fee” to section 213 is consequential to the addition of section 196.2 that added the ability for the director to impose a fee for attending a location outside British Columbia to determine if the Act has been complied with.

Effective October 31, 2019, Bill 35, Miscellaneous Statutes Amendment Act (No.2), 2019, provides under section 213 consistent terminology for the purposes of clarifying that the general rules for giving documents apply, by replacing “of the issuing of the notice of assessment” with “the notice of assessment is given”.  

Effective April 1, 2013, Bill 54, Provincial Sales Tax Act, 2012 provides under section 213 that an assessment made, or a fee or a penalty imposed, under the Act by the director must not be varied or disallowed by a court because of an irregularity, informality, omission or error on the part of a person in the observation of any directory provision up to the date of the notice of assessment is given.

Section 214 – Tax Collection Not Affected By Pending Appeal

PST - SEC.214/Int.

Interpretation (Issued: 2013/12)

Effective April 1, 2013, Bill 54, Provincial Sales Tax Act, 2012 provides under section 214 that neither the giving of a notice of appeal by a person nor a delay in the hearing of an appeal

(a) affects the date an amount, that is owing to the government under the Act and that is the subject matter of the appeal, is payable or required to be remitted under the Act,

(b) affects the amount of interest payable on an amount that is owing to the government under the Act and that is the subject matter of the appeal, or

(c) delays the collection of an amount that is owing to the government under the Act and that is the subject matter of the appeal, or any interest payable under the Act on that amount.

Section 215 – If Decision Set Aside Or Amount Reduced Or Increased On Appeal

PST - SEC.215/Int.

References:

Act: Section 1 "director"

Bulletin GEN 002

Interpretation (Issued: 2013/12)

Effective April 1, 2013, Bill 54, Provincial Sales Tax Act, 2012 provides under section 215 that the director must provide a refund, with interest, where the director's or the minister's decision is set aside or the amount of an assessment or an amount imposed is reduced on appeal. Section 215 also provides that if the amount of an assessment or an amount imposed is increased on appeal, the appellant must pay the additional amount owing to government, with interest.

Subsection 215(1) provides that if the director's or the minister's decision is set aside, or the amount of an assessment or an amount imposed is reduced on appeal, the director must refund to the appellant from the consolidated revenue fund

(a) the amount or excess amount paid, and

(b) any additional interest paid.

Subsection 215(2) provides that if the amount of an assessment or an amount imposed is increased on appeal, the appellant must pay to the government

(a) the additional amount owing to the government under the Act, and

(b) any additional interest payable on the additional amount owing to the government under the Act.