Section 81.38 — Excise Tax Act: Payment by Minister on appeal

If the Tribunal, the Federal Court, the Federal Court of Appeal or the Supreme Court of Canada has, on the disposition of an appeal under this Part, vacated or varied an assessment or a determination of the Minister respecting an application under any of sections 68 to 69, referred an assessment or a determination described in paragraph (a) back to the Minister for reconsideration, or ordered the Minister to pay or repay any tax, penalty, interest or other sum, unless otherwise directed in writing by the person who served the notice of objection, the Minister shall, with all due dispatch, whether or not a further appeal is instituted, where the assessment or determination is referred back to the Minister, reconsider the assessment or determination and vary the assessment or determination or make a reassessment or a further determination in accordance with the decision of the Tribunal or Court, and pay or repay, or surrender any security accepted for the payment of, any tax, penalty, interest or other sum in accordance with the varied assessment or determination, the reassessment or further determination of the Minister or the decision or order of the Tribunal or Court. Subsections 81.15(5) to (11) and 81.16(2) and (3) apply, with such modifications as the circumstances require, to the reconsideration of an assessment under subsection (1) as if the words “or a notice of decision” were added immediately after the words “notice of assessment” in subsection 81.15(10) and paragraph (a) of the definition amount owing in subsection 81.15(11); the reference in subsection 81.15(10) to “subsection 81.14(2)” were a reference to “subsection 81.14(2) or 81.16(2)”; and the reference in paragraph (b) of the definition amount owing in subsection 81.15(11) to “subsection 81.14(1)” were a reference to “subsections 81.14(1), 81.16(1) and 81.38(1)”. Subsections 81.17(5) and (6) apply, with such modifications as the circumstances require, to the reconsideration of a determination under subsection (1) as if the reference in paragraph (b) of the definition amount payable in subsection 81.17(6) to “subsection 72(6)” were a reference to “subsections 72(6), 81.18(1) and 81.38(1)”; and the reference in that paragraph to “subsection 74(1)” were a reference to “subsections 74(1) and 81.18(2)”. Where, having regard to the reasons given on the disposition of an appeal referred to in subsection (1), the Minister is satisfied that it would be just and equitable to make a payment to, or surrender any security furnished by or on behalf of, any other person who has served a notice of objection or instituted an appeal, the Minister may, with the consent of that person and subject to such terms and conditions as the Minister may prescribe, pay or repay to that person any tax, penalty, interest or other sum or surrender any security accepted for the payment thereof. Nothing in this section shall be construed as derogating from the right of the Minister to appeal from a decision of the Tribunal or the Federal Court on an appeal referred to in subsection (1), and any such appeal from a decision of the Tribunal shall proceed as if it were an appeal from the assessment or determination that was the subject of the decision. Subject to subsection (7), if a payment is made under subsection (1) or (4) in respect of an assessment, interest at the prescribed rate shall be paid, in respect of each day between the date of the notice of assessment and the day on which the payment was sent. If a person has paid an amount on account of the amount owing as set out in a notice of assessment or a notice of decision and a payment is made to that person under subsection (1) or (4) in respect of the assessment, interest at the prescribed rate shall be paid, in respect of each day between the day on which the amount was paid by that person and the day on which the payment was sent to that person. If a payment is made under subsection (1) or (4) in respect of an application under any of sections 68 to 69, interest at the prescribed rate shall be paid, in respect of each day between the day that is 30 days after the day on which the application was received by the Minister and the day on which the payment was sent. [Repealed, 2001, c. 16, s. 33] [Repealed, 2003, c. 15, s. 106]