Section 81.33 — Excise Tax Act: Right to institute proceedings or apply for extensions

Subject to this section, where a vendor of goods has made an application under section 68.2 in respect of the sale of the goods and the application was rejected in whole or in part by the Minister, or a vendor of goods has not paid tax in respect of the sale of the goods on the basis that the tax was not payable by virtue of subsection 23(6), (7), (8) or (8.1) or 50(5), or on the basis that the goods were sold in circumstances that, by virtue of the nature of the purchaser of the goods or the use to which the goods were to be put or by virtue of both such nature and use, rendered the sale exempt from tax under subsection 51(1) and subsequently the vendor was assessed tax by the Minister in respect of the sale and has recovered the amount of that tax, or a part thereof, from the purchaser of the goods, the purchaser of the goods may, in substitution for the vendor and in the purchaser’s own name as if he were the vendor, institute proceedings under any of sections 81.15, 81.17, 81.19, 81.2, 81.21, 81.22, 81.23 or 81.24 in respect of the rejection or assessment or apply for an extension, under section 81.32, of the time limited for instituting any such proceedings. A purchaser may institute proceedings or apply for an extension of the time limited for instituting proceedings pursuant to subsection (1) only if the vendor has unconditionally assigned to the purchaser in the prescribed form his rights, if any, to institute proceedings under sections 81.15, 81.17, 81.19, 81.2, 81.21, 81.22, 81.23 or 81.24, to make an application under section 81.32, and to receive a payment pursuant to section 81.16, 81.18 or 81.38 in respect of the sale and the Minister is served with a true copy of the assignment in accordance with subsection (3); the vendor has not, within the time limited for instituting the proceedings, instituted the proceedings or applied for an extension, under section 81.32, of that time; or the proceedings are an appeal arising from proceedings previously instituted by the purchaser pursuant to subsection (1). Service of a true copy of an assignment on the Minister shall be effected, by prepaid mail addressed to the Minister at Ottawa, within the time limited for instituting the proceedings to which the assignment relates. The Minister may accept a true copy of an assignment notwithstanding that it was not served by prepaid mail addressed to the Minister at Ottawa. For the purpose of permitting a purchaser to institute proceedings or apply for an extension of the time limited for instituting proceedings pursuant to subsection (1) in the circumstances described in paragraph (2)(b), the time limited for instituting the proceedings is deemed to be extended by thirty days. Proceedings and applications under subsection (1) shall be dealt with in all respects as if the purchaser were the vendor and any amounts found, on the conclusion of the proceedings, to be payable under subsection 81.16(1), 81.18(1) or 81.38(1) shall be paid to the purchaser and not to the vendor. Where a vendor applies for an extension, under section 81.32, of the time limited for instituting any proceedings after the time has expired, the purchaser may not institute the proceedings or apply for an extension of the time limited for instituting the proceedings pursuant to subsection (1). Where a purchaser institutes proceedings or applies for an extension of the time limited for instituting proceedings pursuant to subsection (1), the vendor may not apply for an extension, under section 81.32, of the time limited for instituting the proceedings or, in the case described in paragraph (1)(a), make a further application under section 68.2 in respect of the sale. Notwithstanding section 81.34, a vendor of goods may intervene in any proceedings or application for extension of the time limited for instituting proceedings instituted by a purchaser of the goods pursuant to subsection (1), as a party to the proceedings or application.