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Chapter	Title
2003-39	General

1The following definitions apply in this Act.

“active business” means a business carried on in Canada, other than a specified investment business or a personal services business as defined in the federal Act. (entreprise exploitée activement)

“association” Repealed: 2019, c.24, s.195

“auditor” means a person appointed under subsection 39(1). (auditeur)

“community economic development plan” means a plan submitted to the Minister by a corporation or a cooperative as part of the application for registration under subsection 13(1).(plan de développment économique communautaire)

“cooperative” means a cooperative as defined in the Cooperatives Act.(coopérative)

“defined community” means a group of persons situated within the Province that may be reasonably distinguished by common geographic, economic or cultural characteristics.(communauté définie)

“eligible business” means a corporation registered under section 6 or a corporation or cooperative registered under section 14.(entreprise admissible)

“eligible investor” means(investisseur admissible)

(a) an individual who is a natural person at least 19 years of age and to whom section 11 of the New Brunswick Income Tax Act applies,

(b) a corporation to which section 12 of the New Brunswick Income Tax Act applies, or

(c) a trust, other than a qualifying trust, to which section 11 or 42 of the New Brunswick Income Tax Act applies.

“eligible share” means(action admissible)

(a) in the case of a corporation that is registered under section 6 or 14, a newly issued share of the capital stock of the corporation if the share is issued as part of a specified issue, but does not include a replacement share, and

(b) in the case of a cooperative that is registered under section 14, a newly issued investment share issued as part of a specified issue that is not eligible for a tax credit allowed under the authority of the federal Act or a deduction from income under the authority of that Act other than a deduction referred to in subsection 146(5) of that Act, but does not include a replacement share.

“federal Act” means the Income Tax Act (Canada). (Loi fédérale)

“inspector” means a person appointed under subsection 39(2). (inspecteur)

“Minister” means the Minister of Finance and Treasury Board and includes any person designated by the Minister to act on the Minister’s behalf. (ministre)

“qualifying trust” means a qualifying trust as defined in section 127.4 of the federal Act. (fiducie admissible)

“replacement share” means(action de remplacement)

(a) a share issued as part of a specified issue if, at any time on or after December 11, 2002, the purchaser has disposed of a share of any class of shares of a corporation that is registered under section 6, or

(b) a share issued as part of a specified issue if, at any time on or after February 5, 2014, the purchaser has disposed of a share of any class of shares of a corporation or cooperative that is registered under section 14.

“specified issue” means an issue of shares by a corporation registered under section 6 or a corporation or cooperative registered under section 14. (émission déterminée)

2003, c.S-9.05, s.1; 2007, c.49, s.1; 2014, c.20, s.1; 2014, c.45, s.1; 2019, c.24, s.195; 2019, c.29, s.151

Associated corporations

2For the purposes of paragraphs 5(1)(c), 9(e), 12(g) and (h), 13(1)(b) and 17(f), one corporation or cooperative is associated with another corporation or cooperative if it is associated with the other corporation or cooperative within the meaning of section 256 of the federal Act, except that the relevant time for determining the association shall be at the time the corporation is registered under section 6 or the corporation or cooperative is registered under section 14 rather than the taxation year of the corporation or cooperative.

2003, c.S-9.05, s.2; 2014, c.20, s.2; 2014, c.45, s.2; 2019, c.24, s.195

Exclusion from eligible share

3Despite any other provision of this Act, an eligible share does not include a share that, in the opinion of the Minister, is or will be issued as a result of a transaction or event or a series of transactions or events the main purpose of which is to claim the tax credit under this Act.

2003, c.S-9.05, s.3

Shares of qualifying trust deemed to be those of eligible investor

4For the purposes of paragraph 10(1)(d), subparagraph 10(1)(e)(iii) and subsections 20(1) and (6), an eligible investor who is an individual shall be deemed to have purchased, held or disposed of shares that are purchased, held or disposed of by a qualifying trust for that investor.

2003, c.S-9.05, s.4; 2014, c.20, s.4

REGISTRATION OF CORPORATIONS
OTHER THAN COMMUNITY ECONOMIC DEVELOPMENT CORPORATIONS

Application for registration

5(1)A corporation that intends to make a specified issue of shares and that meets the criteria set out in section 9 may apply for registration under section 6 by delivering to the Minister, on a form provided by the Minister, an application including the following:

(a) a certified copy of the instrument of incorporation;

(b) a copy of the corporation’s investment plan;

(c) a copy of the most recent financial statements of the corporation and its associated corporations that have been reviewed by a person who is a licensed or registered member of an accounting association that is regulated under a private Act of the Province;

(d) a certificate in writing signed by all the directors of the corporation certifying that the information contained in the application is complete and accurate; and

(e) any other information that the Minister may require in order to ensure compliance with this Act and the regulations.

5(2)An application for registration shall be accompanied by the application fee prescribed by regulation, which is non-refundable.

2003, c.S-9.05, s.6; 2009, c.14, s.1; 2014, c.45, s.4

Requirements for registration

6(1)Subject to subsection (2) and on payment of the application fee referred to in subsection 5(2), the Minister may register a corporation under this section, with any conditions that the Minister considers appropriate,

(a) if the corporation satisfies the Minister that

(i) the corporation meets the criteria set out in section 9,

(ii) the proposed investment plan complies with the spirit and intent of this Act and the regulations, and

(iii) the corporation meets any other conditions for registration that are prescribed by regulation, and

(b) if the Minister is of the opinion that the proposed use of the capital to be raised by the specified issue, as set out in the investment plan, will benefit the operations of the corporation that are located in the Province.

6(2)The Minister shall not register a corporation under subsection (1) unless the Minister is satisfied that

(a) the corporation will raise immediately after registration, or within the period of time permitted by the Minister, capital on the issue of eligible shares as part of a specified issue as set out in the investment plan in an amount that is not less than an amount prescribed by regulation and not greater than an amount or aggregate amount prescribed by regulation,

(b) the corporation will issue immediately after registration, or within the period of time permitted by the Minister, eligible shares as part of a specified issue as set out in the investment plan to all eligible investors named in the investment plan, and

(c) the amounts that will be deductible or deducted under section 61.1 of the New Brunswick Income Tax Act during a particular year by all eligible investors will not exceed the amount prescribed by regulation.

2003, c.S-9.05, s.7; 2009, c.14, s.2; 2014, c.20, s.5; 2014, c.45, s.5

Certificate of registration

7(1)If the Minister registers a corporation under section 6, the Minister shall issue a certificate of registration and the corporation shall be deemed to be registered as of the date on the certificate of registration.

7(2)The certificate of registration constitutes approval, as at the date of registration, for the corporation to raise the amount of capital referred to in the investment plan through the sale of eligible shares in respect of which the Minister may issue tax credit certificates under this Act.

2003, c.S-9.05, s.8; 2014, c.45, s.6

Condition of registration

8It is a condition of registration under section 6 that the corporation shall pay, in respect of each of the four years after the date of each certificate of registration issued to the corporation under subsection 7(1), at least the percentage prescribed by regulation of its wages and salaries to individuals who are residents of the Province.

2003, c.S-9.05, s.9; 2014, c.45, s.7

Criteria for eligibility

9The following are the criteria referred to in section 5 for eligibility of a corporation for registration:

(a) the corporation is a private company that meets the requirements prescribed by regulation;

(b) the corporation is incorporated under the laws of, or registered to carry on business in, the Province;

(c) the corporation has authorized capital consisting of shares without par value;

(d) the corporation is not engaged in a business prescribed by regulation;

(e) the total assets of the corporation, including the assets of its associated corporations, do not exceed $40,000,000, calculated in the manner prescribed by regulation, at the time of registration under section 6;

(f) the corporation is not substantially engaged in any activities that may be prescribed by regulation as ineligible;

(g) all or substantially all of the fair market value of the assets of the corporation is attributable to

(i) assets used in an active business, or

(ii) shares of another corporation if all or substantially all of the fair market value of the assets of that corporation is attributable to assets used in an active business; and

(h) the corporation meets all other criteria that may be prescribed by regulation.

2003, c.S-9.05, s.10; 2004, c.S-5.5, s.227; 2007, c.49, s.2; 2009, c.14, s.3

Investment plan

10(1)An investment plan of a corporation applying for registration under section 5 and every investment plan of a corporation registered under this Act shall contain or make provision for the following:

(a) the name of the corporation;

(b) the amount of capital to be raised under the plan;

(c) the names in full of the directors and officers of the corporation and the residential address of each;

(d) subject to subsection (2), with respect to eligible investors that have agreed to purchase eligible shares of the specified issue, whether directly or through a qualifying trust,

(i) for each eligible investor who is an individual, the full name, social insurance number and residential address of the eligible investor,

(ii) for each eligible investor that is a corporation, the name, business number and head office address of the eligible investor,

(iii) for each eligible investor that is a trust, the name, account number and residence address of the eligible investor,

(iv) the number of shares subscribed for and, subject to subsection (3), the amount to be paid by each eligible investor,

(v) the number of shares of the corporation held at any time by each eligible investor, and

(vi) a statement signed by each eligible investor certifying that the information in subparagraphs (i), (iv) and (v) with respect to the eligible investor is accurate;

(e) that shares to be issued as part of a specified issue under the plan

(i) will only be issued by the corporation on being fully paid,

(ii) will include the rights to receive dividends declared by the corporation and to participate in the distribution of the remaining property of the corporation on dissolution,

(iii) will be registered immediately following their issue in the name of each shareholder that purchases them or in the name of a trustee, if the shares are purchased by a qualifying trust, and

(iv) do not have any rights or restrictions prohibited by regulation;

(f) that the corporation shall not redeem an eligible share in respect of which a tax credit certificate is issued under this Act unless the redemption occurs more than four years after the date on which the eligible share was issued, or the redemption occurs in the circumstances prescribed by regulation and meets the conditions prescribed by regulation;

(g) that the corporation shall not register a transfer by the original purchaser or by a registered retirement savings plan or a registered retirement income fund under which the original purchaser or the original purchaser’s spouse is the annuitant, of an eligible share in respect of which a tax credit certificate has been issued under this Act unless the transfer occurs more than four years after the date on which the eligible share was issued, or the transfer occurs in the circumstances prescribed by regulation and meets the conditions prescribed by regulation;

(h) that the corporation is prohibited from lending money, guaranteeing a loan or providing other financial assistance to a person for the purpose of or in connection with a purchase of eligible shares that are part of a specified issue;

(i) an investment confirmation, to be issued to each eligible investor that invests in the corporation within 30 days after the investment is made, setting out the information that may be prescribed by regulation;

(j) the proposed use of the capital to be raised by the specified issue;

(k) a summary of the major business activities and revenue sources of the corporation; and

(l) any other requirements that may be prescribed by regulation.

10(2)For the purposes of paragraph (1)(d), the minimum number of eligible investors shall be as prescribed by regulation.

10(3)For the purposes of subparagraph (1)(d)(iv), the minimum amount to be paid by each eligible investor shall be as prescribed by regulation.

2003, c.S-9.05, s.11; 2007, c.49, s.3; 2014, c.20, s.6

Endorsement

11If a corporation registered under this Act issues a certificate to a holder of a class of its eligible shares, the corporation shall put the following endorsement on the certificate: “The right to redeem or transfer this class of shares is subject to the provisions of the Small Business Investor Tax Credit Act”.

2003, c.S-9.05, s.12

Prohibited use of funds

12A corporation registered under this Act shall not use the funds raised by its specified issue in respect of which a tax credit certificate has been or may be issued under this Act for

(a) lending,

(b) acquiring or purchasing the shares of another person,

(c) investment outside the Province,

(d) investment in land, except land that is incidental and ancillary to the active business in which the corporation is primarily engaged,

(e) funding all or part of the purchase of services or assets at a price that is greater than the fair market value of the services or assets purchased,

(f) purchasing services or assets provided by the Crown in right of the Province or an agency or corporation of the Crown, if

(i) those services or assets are to be used in all or in part in a business or activity that is the same as or similar to the activity previously carried on by the Crown in right of the Province or the agency or corporation of the Crown, and

(ii) the corporation has received, either directly or indirectly, financial assistance from a government, local government or public authority with respect to the acquisition of those services or assets,

(g) the redemption or purchase of previously issued shares of the corporation or an associated corporation,

(h) the retirement of part of a liability of a shareholder of the corporation or an associated corporation,

(i) the payment of dividends,

(j) the funding of all or part of the purchase by the corporation of all or substantially all of the assets of an existing proprietorship, partnership, joint venture, trust or company, except a proprietorship, partnership, joint venture, trust or company that is in receivership or in bankruptcy if an eligible investor or group of investors did not own at any time more than 10% of the voting shares of the proprietorship, partnership, joint venture, trust or company that is in receivership or in bankruptcy, or

(k) other purposes prescribed by regulation.

2003, c.S-9.05, s.13; 2005, c.7, s.77; 2014, c.20, s.7; 2017, c.20, s.168

REGISTRATION OF COMMUNITY ECONOMIC
DEVELOPMENT CORPORATIONS
OR COOPERATIVES

2019, c.24, s.195

Application for registration

13(1)A corporation or cooperative that intends to make a specified issue of shares and that meets the criteria set out in section 17 may apply for registration under section 14 by delivering to the Minister an application, in a form acceptable to the Minister, that includes the following:

(a) a copy of the constitution of the corporation or the cooperative;

(b) a copy of the most recent financial statements of the corporation or the cooperative, and of its associated corporations or associated cooperatives, that have been prepared or reviewed by a person who is a licensed or registered member of an accounting association that is regulated under a private Act of the Province;

(c) a copy of the community economic development plan, containing the information prescribed by regulation;

(d) a certificate in writing signed by all the directors of the corporation or cooperative certifying that the information contained in the application is complete and accurate;

(e) any information prescribed by regulation; and

(f) any other information that the Minister may require in order to ensure compliance with this Act and the regulations.

13(2)An application for registration shall be accompanied by the application fee prescribed by regulation, which is non-refundable.

2014, c.45, s.8; 2019, c.24, s.195

Requirements for registration

14(1)Subject to subsection (2) and on payment of the application fee referred to in subsection 13(2), the Minister may register a corporation or cooperative under this section, with any conditions that the Minister considers appropriate,

(a) if the corporation or cooperative satisfies the Minister that

(i) the corporation or cooperative meets the criteria set out in section 17,

(ii) the proposed community economic development plan complies with the spirit and intent of this Act and the regulations,

(iii) the constitution of the corporation provides that no individual is a specified shareholder of the corporation as that term is defined by section 248 of the federal Act and as if the reference to 10% in that definition were read as a reference to 20%,

(iv) the specified issue complies with the provisions of the Securities Act or any part of that Act that may be prescribed by regulation, and

(v) the corporation or cooperative meets any other conditions for registration that are prescribed by regulation, and

(b) if the Minister is of the opinion that the proposed use of the capital to be raised by the specified issue, as set out in the community economic development plan, will benefit the operations of the corporations or cooperatives that are located in the Province.

14(2)The Minister shall not register a corporation or cooperative under subsection (1) unless the Minister is satisfied that

(a) the corporation or cooperative will raise immediately after registration, or within the period of time permitted by the Minister, capital on the issue of eligible shares as part of a specified issue as set out in the community economic development plan in an amount that is not less than an amount prescribed by regulation and not greater than an amount or aggregate amount prescribed by regulation,

(b) the corporation or cooperative will issue immediately after registration, or within the period of time permitted by the Minister, eligible shares as part of a specified issue as set out in the community economic development plan to all eligible investors named in the plan, and

(c) the amounts that will be deductible or deducted under section 61.1 of the New Brunswick Income Tax Act during a particular year by all individuals will not exceed the amount prescribed by regulation.

2014, c.45, s.8; 2019, c.24, s.195

Certificate of registration

15(1)If the Minister registers a corporation or cooperative under section 14, the Minister shall issue a certificate of registration and the corporation or cooperative shall be deemed to be registered as of the date on the certificate of registration.

15(2)The certificate of registration constitutes approval, as at the date of registration, for the corporation or cooperative to raise the amount of capital referred to in the community economic development plan through the sale of eligible shares in respect of which the Minister may issue tax credit certificates under this Act.

2014, c.45, s.8; 2019, c.24, s.195

Condition of registration

16It is a condition of registration under section 14 that the corporation or cooperative shall pay, in respect of each of the four years after the date of each certificate of registration issued to the corporation or cooperative under subsection 15(1), at least the percentage prescribed by regulation of its wages and salaries to individuals who are residents of the Province.

2014, c.45, s.8; 2019, c.24, s.195

Criteria for eligibility

17The following are the criteria referred to in section 13 for eligibility of a corporation or cooperative for registration:

(a) the corporation or cooperative is incorporated under the laws of, or registered to carry on business in, the Province;

(b) the corporation or cooperative has a constitution that

(i) restricts the business of the corporation or cooperative to

(A) operating or carrying on business that is an active business or to evaluating and making investments in one or more active businesses based on a set of criteria defined by the corporation or cooperative,

(B) providing information to and educating investors in the defined community as to the role of capital in business, the value of equity investments to the defined community and the rights and obligations of corporations and shareholders,

(C) investing the capital raised by a specified issue in respect of which a tax credit certificate has been or may be issued under this Act, in businesses located within the defined community as outlined in the community economic development plan and that meet the criteria prescribed by regulation, if any,

(D) exercising ownership rights with respect to the investments made by the corporation or cooperative, and

(E) providing the administrative support necessary to carry on the business of the corporation or cooperative, including preparation of annual reports and the holding of meetings of shareholders and the Board of Directors;

(ii) describes the defined community for which the corporation or cooperative was formed;

(iii) makes provisions for annual general meetings of the shareholders;

(c) in the case of a corporation, the corporation has a Board of Directors, elected by the shareholders at the annual general meeting of the shareholders, consisting of not fewer than six individuals who are residents of the community in which the corporation carries on business;

(c.1) in the case of a cooperative, the cooperative has a Board of Directors, elected by the members at the annual general meeting of the members, consisting of not fewer than six individuals who are residents of the community in which the cooperative carries on business;

(d) the corporation or cooperative is not a non-profit, charitable or non-taxable corporation or cooperative;

(e) in the case of a corporation, the corporation has authorized capital consisting of at least one class of voting equity shares without par value;

(e.1) in the case of a cooperative, the cooperative has authorized capital consisting of at least one class of investment shares without a par value;

(f) the total assets of the corporation or cooperative, and its associated corporations and associated cooperatives, do not exceed $40,000,000, calculated in the manner prescribed by regulation, at the time of registration under section 14;

(g) in the case of a corporation, all or substantially all of the fair market value of the assets of the corporation is attributable to

(i) assets used in an active business, or

(ii) shares of another corporation if all or substantially all of the fair market value of the assets of that corporation is attributable to assets of that corporation used in an active business or that the other corporation has a constitution that restricts the corporation to operating or carrying on business that is an active business or to evaluating and making investments in one or more active businesses based on a set of criteria defined by the corporation;

(h) the corporation or cooperative does not carry on business or operations in an activity prescribed by regulation or the corporation or cooperative has a constitution that restricts the corporation or cooperative to investing in investments of another corporation or another cooperative that does not carry on business or operations in an activity prescribed by regulation; and

(i) the corporation or cooperative meets all other criteria that may be prescribed by regulation.

2014, c.45, s.8; 2019, c.24, s.195

Investment requirements

18(1)A corporation or cooperative registered under section 14 shall meet the investment requirements prescribed by regulation.

18(2)The Minister may extend, with or without conditions, the time limit for meeting the investment requirements prescribed by regulation and may grant the extension even though the time limit to be extended has expired.

18(3)The Minister may impose a penalty on a corporation or cooperative registered under section 14 that fails to meet the investment requirements prescribed by regulation.

2014, c.45, s.8; 2019, c.24, s.195

Application of sections 11 and 12 and sections 20 to 46

19Sections 11 and 12 and sections 20 to 46 apply with the necessary modifications to a corporation or cooperative registered under section 14.

2014, c.45, s.8; 2019, c.24, s.195

SMALL BUSINESS
INVESTOR TAX CREDIT

Application for tax credit certificate

20(1)If an eligible investor is an individual who has paid, or whose qualifying trust has paid, during the calendar year or within 60 days following the calendar year, for eligible shares issued by a corporation registered under this Act as part of its specified issue, the corporation shall apply to the Minister on behalf of the eligible investor for a tax credit certificate in respect of a tax credit to be claimed by the eligible investor under section 61.1 of the New Brunswick Income Tax Act.

20(2)If an eligible investor is a corporation or a trust that has paid during the taxation year for eligible shares issued by a corporation registered under this Act as part of its specified issue, the corporation registered under this Act shall apply to the Minister on behalf of the eligible investor for a tax credit certificate in respect of a tax credit to be claimed by the eligible investor under section 61.1 of the New Brunswick Income Tax Act.

20(3)An application shall be made on a form provided by the Minister and shall be signed by the secretary and one authorized officer of the corporation that has issued the eligible shares in respect of which the tax credit certificate is sought, and shall be accompanied by the application fee prescribed by regulation and all additional material that may be required by the regulations.

20(4)An application shall be made within the time prescribed by regulation.

20(5)The application fee is non-refundable.

20(6)If an eligible investor is an individual, the amount of the tax credit referred to in subsection (1) that may be claimed each year by the eligible investor is equal to 50% of all amounts not exceeding $250,000 paid during the time period referred to in subsection (1) by the eligible investor or by a qualifying trust of the eligible investor to a corporation registered under this Act in consideration for eligible shares issued by the corporation as part of its specified issue.

20(7)If an eligible investor is a corporation or a trust, the amount of the tax credit referred to in subsection (2) that may be claimed each taxation year by the eligible investor is equal to 15% of all amounts not exceeding $500,000 paid during the taxation year referred to in subsection (2) by the eligible investor to a corporation registered under this Act in consideration for eligible shares issued by the corporation registered under this Act as part of its specified issue.

2003, c.S-9.05, s.14; 2007, c.49, s.4; 2009, c.14, s.4; 2014, c.20, s.8; 2015, c.26, s.1

Prohibition regarding eligible investors

21(1)The following definitions apply in this section.

“affiliate” , if used to indicate a relationship between corporations, means any corporation when one is the subsidiary of the other, or both are subsidiaries of the same corporation or(affilié)

(a) each of them is controlled by the same person or the same group of persons, or

(b) one of them is controlled by one person and the other is controlled by

(i) a spouse, parent, grandparent, child, grandchild, brother or sister of that person, or

(ii) a parent, grandparent, child, grandchild, brother or sister of the spouse of that person, residing in the same residence.

“associate” , if used to indicate a relationship with an eligible investor that is a corporation or a trust, means(associé)

(a) a corporation of which the eligible investor owns, directly or indirectly, shares carrying 10% or more of the outstanding voting rights for the election of the directors of the corporation,

(b) a partner of the eligible investor,

(c) a participant in a joint venture with the eligible investor, or

(d) a trust or estate

(i) in which the eligible investor has, in the opinion of the administrator, a substantial beneficial interest, or

(ii) for which the eligible investor serves as trustee or in a similar capacity.

21(2)If an eligible investor is a corporation or a trust, the eligible investor shall not make or hold an investment in a corporation registered under this Act if the eligible investor, either alone or in conjunction with one or more of the following persons, will own, directly or indirectly, shares carrying 50% or more of the votes for the election of the directors of the corporation registered under this Act or will, in any manner, control the corporation registered under this Act:

(a) associates or affiliates of the eligible investor;

(b) shareholders of the eligible investor or their associates or affiliates;

(c) directors of the eligible investor or their associates; or

(d) officers of the eligible investor or their associates.

2014, c.20, s.9

Issuance of tax credit certificate

22(1)Subject to subsection (2), on receipt of an application under subsection 20(1) or (2), the Minister shall issue a tax credit certificate to the eligible investor indicating the amount of the tax credit and the taxation year in respect of which the credit may be claimed, unless the Minister considers that the corporation registered under this Act or its directors, officers or shareholders are conducting its business or affairs in a manner that is contrary to the spirit and intent of this Act and the regulations.

22(2)The Minister shall not issue a tax credit certificate under subsection (1) unless the Minister is satisfied that

(a) the corporation and its eligible investors are complying with the corporation’s investment plan and this Act and the regulations,

(b) the eligible shares to which the tax credit relates do not entitle the holder, in respect of the acquisition of those shares,

(i) to claim a tax credit under the New Brunswick Income Tax Act, other than a tax credit under section 35 or 61.1, or both, of that Act, against tax otherwise payable,

(ii) to claim a deduction from income under the New Brunswick Income Tax Act or the federal Act, other than a deduction under subsection 146(5) of the federal Act, or

(iii) to receive any other financial assistance from a government, local government or public authority,

(c) no tax credit has been previously allowed under the New Brunswick Income Tax Act in respect of the eligible shares to which the tax credit certificate relates,

(d) the eligible shares to which the tax credit certificate relates were purchased and acquired directly from the corporation issuing the eligible shares,

(e) the aggregate of all entitlements in respect of the eligible investor for all tax credit certificates applied for in the year does not exceed

(i) $125,000 if the eligible investor is an individual, or

(ii) $75,000 if the eligible investor is a corporation or a trust, and

(f) there has been compliance with any other conditions that may be prescribed by regulation.

2003, c.S-9.05, s.15; 2005, c.7, s.77; 2007, c.49, s.5; 2009, c.14, s.5; 2014, c.20, s.10; 2015, c.26, s.2; 2017, c.20, s.168

ENFORCEMENT

Revocation of certificate of registration

23(1)At any time after a certificate of registration has been issued to a corporation, the Minister may revoke the certificate

(a) if, in the opinion of the Minister, the corporation has not complied with a provision of this Act or the regulations,

(b) if, in the opinion of the Minister, the corporation, or its directors, officers or shareholders, are conducting the business or affairs of the corporation in a manner that is contrary to the spirit and intent of this Act and the regulations,

(c) if the corporation has misrepresented any information to the Minister either knowingly or through circumstances amounting to negligence,

(d) if the corporation has used the funds raised by the specified issue for any use prohibited by section 12,

(e) if the corporation redeems, retracts or registers the transfer of an eligible share contrary to the prohibitions required by this Act to be contained in the investment plan,

(f) if, in the opinion of the Minister, the corporation is no longer in compliance with its investment plan, or

(g) if another transaction or event prescribed by regulation occurs.

23(2)The Minister may not revoke the registration of a corporation without first notifying, by registered mail, the corporation of the Minister’s intent and giving it, its representative and other persons that would be affected by the revocation the opportunity to make comments.

23(3)A person to whom the Minister sends a notice under subsection (2) and who wishes to make comments to the Minister shall make them within 30 days after receiving the notice.

23(4)A notice under subsection (2) shall be deemed to have been received by the person to whom it is sent no later than five days after it was mailed.

2003, c.S-9.05, s.16; 2014, c.20, s.11

Surrender of registration

24On the request of a corporation registered under this Act, the Minister may accept the surrender of its registration if

(a) the corporation pays to the Minister the amount, if any, required to be paid under section 25, and

(b) the corporation meets all other conditions that may be prescribed by regulation.

2003, c.S-9.05, s.17

Recovery of tax credit on revocation, surrender or wind-up

25A corporation whose registration is revoked by the Minister, that makes a request under section 24 to surrender its registration or that proposes to wind-up or dissolve shall immediately pay to the Minister an amount of money equal to the total amount of all tax credits for which tax credit certificates were issued or may be issued under this Act in respect of all eligible shares of the corporation that were issued as part of a specified issue within the four years immediately preceding the date of the revocation, surrender of registration or the winding-up or dissolution.

2003, c.S-9.05, s.18

Recovery of tax credit on receivership or bankruptcy

26If a corporation registered under this Act is in receivership or in bankruptcy within the four years immediately following the issuance of its eligible shares, the corporation shall immediately pay to the Minister an amount of money equal to the following percentage of the total amount of all tax credits for which tax certificates were issued or may be issued under this Act in respect of all eligible shares of the corporation that were issued as part of its specified issue within that period of time:

(48 - n) / 48

where

n is the number of months that the eligible shares were held.

2014, c.20, s.12

Liability of officers and directors

27If an officer or director of a corporation registered under this Act permits or acquiesces to a transaction or event or a series of transactions or events that the officer or director knew or ought to have known at that time would cause the certificate of registration to be revoked, that person is jointly and severally liable for the repayment under section 25.

2003, c.S-9.05, s.19; 2014, c.20, s.13

Recovery of tax credit when no entitlement

28If an eligible investor receives, directly or indirectly, the benefit of all or part of a tax credit in respect of which the eligible investor is not entitled, the eligible investor shall immediately pay the amount of the benefit to the Minister.

2003, c.S-9.05, s.20; 2014, c.20, s.14

Recovery of tax credit on early redemption

29(1)The following definition applies in this section.

“holding period” means four years after the date the eligible share was issued.

29(2)If a corporation registered under this Act redeems, acquires or cancels a share in respect of which a tax credit certificate was issued under this Act before the expiry of the holding period, other than when permitted by regulation, the person who was the shareholder immediately before the redemption, acquisition or cancellation shall pay to the Minister an amount equal to the tax credit allowed in respect of the share, or a lesser amount if prescribed by regulation.

2003, c.S-9.05, s.21

Withholding and remittance of tax credit

30(1)If a corporation registered under this Act redeems, acquires or cancels a share in respect of which a tax credit certificate was issued and, as a consequence, an amount is payable under subsection 29(2) by the person who was the shareholder immediately before the redemption, acquisition or cancellation, the corporation shall

(a) withhold the amount payable under subsection 29(2) from the amount otherwise payable to the shareholder on the redemption, acquisition or cancellation,

(b) send the amount payable under subsection 29(2) to the Minister on behalf of the shareholder within 30 days after the redemption, acquisition or cancellation, and

(c) submit with the amount referred to in paragraph (b) a statement in the form approved by the Minister.

30(2)If a corporation registered under this Act fails to withhold the amount referred to in paragraph (1)(a) from an amount paid to a shareholder, the corporation is liable to pay on behalf of the shareholder the amount the corporation failed to withhold, and is entitled to recover that amount from the shareholder.

2003, c.S-9.05, s.22; 2014, c.20, s.15

Disposal of share

31If a tax credit has been allowed in respect of an eligible share and a person disposes of the share within four years after the date it was purchased, the person shall repay to the Minister

(a) an amount equal to the tax credit received in respect of the share, including interest on the amount if prescribed by regulation, or

(b) a lesser amount determined under the regulations in the circumstances prescribed by regulation.

2003, c.S-9.05, s.23

GENERAL

Annual returns

32(1)A corporation that is registered under this Act shall prepare and file with the Minister an annual return in accordance with the regulations, with any information required by the Minister and in the form approved by the Minister.

32(2)Unless otherwise ordered by the Minister, subsection (1) does not apply after four years have elapsed since the date on which the corporation last issued eligible shares as part of a specified issue.

2003, c.S-9.05, s.24

Records of corporation

33(1)A corporation that is registered under this Act shall maintain records and books of account at its registered office in the Province, or at any other place designated by the Minister, in the form and containing the information the Minister considers necessary to verify that the corporation has complied with this Act and the regulations.

33(2)Until permission for their disposal is obtained from the Minister, every corporation required to keep records and books of account shall retain them and every document necessary to verify the information contained in them.

2003, c.S-9.05, s.25

Debt due the Crown

34An amount required to be paid to the Minister under this Act is a debt due to the Crown in right of the Province and may be recovered by action in its name in a court of competent jurisdiction.

2003, c.S-9.05, s.26

Recovery of amount

35(1)The Minister may issue a certificate stating an amount that is due and payable under this Act, including interest, if any, and the name of the person by whom the same is due and payable.

35(2)A certificate referred to in subsection (1) may be issued

(a) when directed by the Minister, or

(b) on the expiration of 30 days after the mailing of a registered letter demanding payment.

35(3)A certificate issued under subsection (1) may be filed in The Court of King’s Bench of New Brunswick and shall be entered and recorded in the Court, and when so entered and recorded becomes a judgment of the Court and may be enforced as a judgment obtained in the Court by the Crown in right of the Province against the person named in the certificate for a debt of the amount specified in the certificate.

35(4)All reasonable costs and charges attendant on the filing, entering and recording of the certificate shall be recovered in like manner as if the amount of the costs and charges had been included in the certificate.

2003, c.S-9.05, s.27; 2023, c.17, s.255

Interest

36From the date on which an amount due to the Crown in right of the Province under this Act is to be paid by a person, the amount bears interest at the rate prescribed by regulation.

2003, c.S-9.05, s.28

Extension of time

37The Minister may extend, with or without conditions, the time limit for the doing of anything under this Act or the regulations and may grant the extension even though the time limit to be extended has expired.

2003, c.S-9.05, s.29

Projections

38A calculation or determination under this Act or the regulations may be based on projections that the Minister considers to be appropriate.

2003, c.S-9.05, s.30

Appointment of auditors and inspectors

39(1)The Minister may appoint one or more persons as auditors for the purpose of ensuring compliance with this Act and the regulations.

39(2)The Minister may appoint one or more persons as inspectors for the purpose of ensuring compliance with this Act and the regulations.

2003, c.S-9.05, s.31

Audits and examinations

40(1)For the purpose of ensuring compliance with this Act and the regulations, an auditor or inspector may carry out an examination of the affairs of the following during normal business hours:

(a) a corporation that is registered under this Act; or

(b) a person who is or was a shareholder of a corporation that is registered under this Act.

40(2)For the purpose of ensuring compliance with this Act and the regulations, an auditor may audit or examine the records, books of account or other documents of a corporation or person referred to in subsection (1), and make copies of them.

40(3)For the purpose of ensuring compliance with this Act and the regulations, an inspector may examine the records, books of account or other documents of a corporation or person referred to in subsection (1), and make copies of them.

40(4)For the purposes of an audit or examination under subsections (1) to (3), an auditor or inspector may enter the premises of a corporation or person referred to in subsection (1) during normal business hours.

40(5)Despite subsection (4), an auditor or inspector shall not enter a private dwelling unless the auditor or inspector

(a) has the consent of the occupier, or

(b) has obtained a warrant under the Entry Warrants Act.

40(6)Before or after attempting to enter or have access to, through or over any premises for the purposes of this section, an auditor or inspector may apply to a judge for an entry warrant under the Entry Warrants Act.

40(7)An auditor or inspector may request the assistance of a peace officer for the purposes of this section.

2003, c.S-9.05, s.32

Removal of documents

41(1)An auditor or inspector may remove records, books of account or documents from a premises for the purposes of section 40 and may make a copy or extract of them or any part of them and shall give a receipt for them to the occupier.

41(2)If records, books of account or documents are removed from a premises, they shall be returned to the occupier as soon as possible after the copies or extracts have been made.

41(3)A copy or extract of a record, book of account or document related to an examination and purporting to be certified by an auditor or inspector is admissible in evidence in an action, proceeding or prosecution and, in the absence of evidence to the contrary, is proof of the original without proof of the appointment, authority or signature of the person purporting to have certified the copy or extract.

2003, c.S-9.05, s.33

Information to be provided

42Every person shall furnish an auditor or inspector with any information that the auditor or inspector reasonably requires for the purposes of section 40.

2003, c.S-9.05, s.34

Obstruction

43(1)No person shall obstruct or interfere with an auditor in the carrying out of an audit or examination under this Act.

43(2)No person shall obstruct or interfere with an inspector in the carrying out of an examination under this Act.

43(3)A refusal of consent to enter a private dwelling is not and shall not be deemed to be interfering with or obstructing within the meaning of subsection (1) or (2), except when an entry warrant has been obtained.

2003, c.S-9.05, s.35

Offences

44(1)A person commits an offence who

(a) makes or assists in making a statement in a document or information required to be filed or furnished under this Act or the regulations to the Minister, an auditor or an inspector that, at the time and in the light of the circumstances under which the statement is made, is false or misleading with respect to a material fact or that omits to state a material fact, the omission of which makes that statement false or misleading,

(b) makes, or assists in making, false or misleading entries in the records or books of account of a corporation registered under this Act, or

(c) knowingly fails to record material particulars in the records or books of account of a corporation registered under this Act.

44(2)A person does not commit an offence under this section in relation to a statement made if the person did not know that the statement was false or misleading and, in the exercise of reasonable diligence, could not have known that the statement was false or misleading.

44(3)A person who violates or fails to comply with a provision of this Act listed in Column 1 of Schedule A commits an offence.

44(4)A person who violates or fails to comply with a provision of the regulations commits an offence.

2003, c.S-9.05, s.36

Penalties

45(1)For the purposes of Part 2 of the Provincial Offences Procedure Act, each offence listed in Column 1 of Schedule A is punishable as an offence of the category listed beside it in Column 2 of Schedule A.

45(2)If an offence under this Act continues for more than one day,

(a) the minimum fine that may be imposed is the minimum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues, and

(b) the maximum fine that may be imposed is the maximum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues.

2003, c.S-9.05, s.37

Certificate as evidence

46(1)In a prosecution or other proceeding under this Act, a certificate signed by the Minister or purporting to be signed by the Minister stating any of the following may be adduced in evidence without proof of the appointment, authority or signature of the Minister and, when so adduced and in the absence of evidence to the contrary, is proof of the facts stated in the certificate and if the person named in the certificate has the same name as the accused, that the person named in the certificate is the accused:

(a) that a specified amount is the amount that is due and payable by a person under this Act;

(b) that a person failed to keep records or books of account in the form, containing the information and in the place required by this Act and the regulations;

(c) that a person failed to make an annual return in the form and manner and at the time required by this Act and the regulations;

(d) that a person at a specified time refused to permit an auditor to carry out an audit or examination under this Act or obstructed or interfered with an audit or examination being carried out by an auditor under this Act; or

(e) that a person at a specified time refused to permit an inspector to carry out an examination under this Act or obstructed or interfered with an examination being carried out by an inspector under this Act.

46(2)A report, certificate or other document signed by the Minister or purporting to be signed by the Minister may be adduced in evidence in a court without proof of the appointment, authority or signature of the Minister and, when so adduced and in the absence of evidence to the contrary, is proof of the facts stated in it.

2003, c.S-9.05, s.38

Administration of Act

47The Minister is responsible for the administration of this Act and may designate one or more persons to act on the Minister’s behalf.

2003, c.S-9.05, s.5

Regulations

48(1)The Lieutenant-Governor in Council may make regulations

(a) respecting forms for the purpose of this Act;

(b) prescribing any matter that is to be prescribed under this Act or is to be determined, required or permitted by regulation;

(c) requiring any person to supply information or returns respecting any matter required in ensuring compliance with this Act;

(d) prescribing fees for the purposes of sections 5, 13 and 20;

(e) establishing periods of time to be taken into account in calculations or determinations under this Act or the regulations, and varying periods set by this Act;

(f) respecting the manner and effective date of revocation of a certificate of registration by the Minister;

(g) respecting the filing of annual returns by a corporation registered under this Act;

(h) prohibiting rights and restrictions for the purposes of subparagraph 10(1)(e)(iv);

(i) respecting the penalty referred to in subsection 18(3), including the amount of the penalty, the time limit for paying the penalty, interest on the penalty and a refund of the penalty;

(j) defining any word or expression used in but not defined in this Act for the purposes of this Act, the regulations, or both;

(k) respecting any other matter that may be necessary for the proper administration of this Act.

48(2)A regulation made under subsection (1) may be retroactive in its operation.

2003, c.S-9.05, s.39; 2009, c.14, s.6; 2014, c.45, s.9

Saving provision

2019, c.24, s.195

49A certificate of registration issued under section 15 to an association and that was valid immediately before the commencement of this section, continues to be valid and the definition of “eligible share”, as it read immediately before the commencement of this section, applies with respect to that certificate of registration for the purpose of subsection 15(2).

2019, c.24, s.195

SCHEDULE A

Column 1 Provision		Column 2 Category of Offence
	32(1)..............		F
	33(1)..............		F
	42..............		F
	43(1)..............		F
	43(2)..............		F
	44(1)(a)..............		F
	44(1)(b)..............		F
	44(1)(c)..............		F
	44(4)..............		B

2003, c.S-9.05, Schedule A

N.B. This Act was proclaimed and came into force February 9, 2017.

N.B. This Act is consolidated to June 16, 2023.

2016, c.112 - Small Business Investor Tax Credit Act

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