D-15.1 - Act respecting duties on transfers of immovables

À jour au 1^er avril 1999

Ce document a valeur officielle.

chapter D-15.1

Act respecting duties on transfers of immovables

This Act was formerly entitled “An Act to authorize municipalities to collect duties on transfers of immoveables”. The title was replaced by section 231 of chapter 32 of the statutes of 1991.

1991, c. 32, s. 231.

CHAPTER I INTERPRETATION

1. In this Act and in the regulations, unless the context indicates a different meaning,

“consideration” includes:

(a)  the value of any property furnished by the transferee at the time of a transfer;

(b)  money payment;

(c)  the prior claims, hypothecs and other charges encumbering a property at the time of the transfer;

(d)  the amount, in capital, interest and outlays, of that portion of the debt which is extinguished when a creditor acquires the right of ownership on a property as the consequence of a real security encumbering the property in his favour, except with regard to municipal and school taxes;

(e)  (paragraph repealed);

(f)  (paragraph repealed);

“transfer duties” means the duties provided for in section 2;

“municipality” means a local municipality;

“public body” means

(a)  a government;

(b)  a local municipality or a regional county municipality;

(c)  a public corporation whose council is composed, as to the majority of its members, of a body of elected municipal representatives, or whose budget is submitted to such a body in accordance with the law;

(d)  a public corporation of one of the bodies mentioned in paragraphs a, b and c, designated by regulation;

(e)  a school board;

“person” means a person and a trust, partnership, association, syndicate and any other group of any kind whatever;

“regulation” means a regulation made by the Government under this Act;

“transfer” means the transfer of the right of ownership on a property as well as a contract of lease of a property, provided the period running from the date of transfer to the expiry of the term of the contract of lease, including any extension or renewal mentioned therein, exceeds 40 years; the word “transfer” does not include transfer for the purpose only of securing a debt, nor reconveyance by the creditor.

1976, c. 30, s. 1; 1988, c. 19, s. 257; 1991, c. 32, s. 232; 1992, c. 57, s. 624; 1993, c. 78, s. 19.

1.0.1. In the case of a transfer of both corporeal property and movables which are permanently physically attached or joined to an immovable without losing their individuality and without being incorporated with the immovable and which, in the immovable, are used for the operation of an enterprise or for the carrying on of activities, the word “immovable” refers, in all provisions of this Act except paragraph a of section 5 and section 9, and in all statutory instruments thereunder, to the aggregate of the immovable and movables.

1993, c. 78, s. 20.

1.1. For the purposes of this Act, where an immovable constitutes, at the time of its transfer, a unit of assessment entered on the real estate assessment roll of a municipality or part of such a unit the value of which is separately entered on the roll, its market value shall be the product obtained by multiplying the value entered on the roll for the unit or part corresponding to the transferred immovable, as the case may be, by the factor of the roll established in accordance with section 264 of the Act respecting municipal taxation (chapter F-2.1).

1991, c. 32, s. 233.

CHAPTER II LIABILITY FOR TRANSFER DUTIES AND PROCEDURE

2. Every municipality must collect duties on the transfer of any immovable situated within its territory, computed in relation to the basis of imposition established in accordance with the second paragraph, according to the following rates:

(1)  on that part of the basis of imposition which does not exceed $50 000: 0.5 %;

(2)  on that part of the basis of imposition which is in excess of $50 000 but does not exceed $250 000: 1 %;

(3)  on that part of the basis of imposition which exceeds $250 000: 1.5 %.

The basis of imposition for transfer duties shall be the greatest of the following amounts:

(1)  the amount of the consideration furnished for the transfer of the immovable;

(2)  the amount of the consideration stipulated for the transfer of the immovable;

(3)  the amount of the market value of the immovable at the time of its transfer.

1976, c. 30, s. 2; 1991, c. 32, s. 234; 1993, c. 78, s. 21.

3. The clerk or the secretary-treasurer of the municipality must forward a notice indicating the title of the officer in charge of tax collection for the municipality to the registrar of any registration division which comprises all or part of the territory of the municipality.

1976, c. 30, s. 3; 1991, c. 32, s. 234.

4. The transferee of the immovable transferred shall be liable for payment of the transfer duties to the municipality.

Where the transfer is made to several transferees, they shall be jointly and severally liable for the payment of the transfer duties.

Where the transfer is made in part to a transferee exempt from the payment of duties and in part to another transferee who is not exempt, the latter is required to pay the duties on that portion only of the basis of imposition which corresponds to the part of the transfer made to him.

1976, c. 30, s. 4; 1993, c. 78, s. 23.

5. The transferor shall be jointly and severally liable for payment of the transfer duties with the transferee in the following cases:

(a)  if the amount of the consideration furnished by the transferee for the transfer of the immovable exceeds the amount mentioned in the application for registration in accordance with subparagraph e of the first paragraph of section 9;

(a.1)  if the amount of the consideration furnished by the transferee for the transfer of movables referred to in section 1.0.1 exceeds the amount mentioned in the declaration provided for in the second paragraph of section 9;

(b)  if the transferor is guilty of an offence under section 23.

1976, c. 30, s. 5; 1993, c. 78, s. 24.

6. Transfer duties are payable from the registration of the transfer.

1976, c. 30, s. 6; 1993, c. 78, s. 25.

7. Where an immovable being transferred is situated in the territory of two or more municipalities, transfer duties shall be payable only once and shall be shared equally by all the interested municipalities. Payment in full of the duties to any of such municipalities discharges the debtor in respect of all such municipalities. The municipalities may exercise jointly and severally the recourse provided for in section 16.

1976, c. 30, s. 7; 1991, c. 32, s. 235; 1996, c. 2, s. 655.

8. (1)  The value of the consideration furnished by the transferee for the transfer of an immovable acquired in replacement of an immovable right conveyed by him at the time of an expropriation or which he conveyed to a person pursuant to a notice of expropriation from such person, must be reduced, for the purposes of computing the transfer duties, by an amount equal to the proceeds of disposition which may reasonably be attributed to such immovable right.

(2)  The reduction contemplated in subsection 1 shall not be made unless:

(a)  the immovable acquired as a replacement is used for purposes similar to those of the replaced immovable right; and

(b)  the immovable acquired as a replacement is acquired before the end of the second year following

i.  the day of the transfer of the replaced immovable right, or

ii.  if the immovable right was expropriated, the first of the following days:

(A)  the day the transferee has agreed to an amount as full compensation for that immovable right;

(B)  where a claim or other proceeding has been taken before a tribunal of competent jurisdiction, the day on which the amount of the compensation is finally determined by that tribunal;

(C)  where a claim or other proceeding referred to in subparagraph B has not been taken within two years after the event giving rise to compensation, the day that is two years following the day of that event.

(3)  The reduction contemplated in subsection 1 does not apply if the replaced immovable right was intended for purposes of speculation.

1976, c. 30, s. 8.

8.1. Notwithstanding any contrary provision, the basis of imposition for transfer duties in the case of a transfer made in the exercise of the right of redemption of an immovable sold for taxes is the amount which has been paid for the exercise of such right.

1978, c. 61, s. 1; 1994, c. 30, s. 98.

9. The application for registration of a transfer must contain the following particulars:

(a)  the names of the transferor and of the transferee;

(b)  the address of the principal residence of the transferor;

(c)  the address of the principal residence of the tranferee;

(d)  the name of the municipality in the territory of which the immovable is situated;

(e)  the amount of the consideration for the transfer of the immovable, according to the transferor and the transferee;

(e.1)  the amount constituting the basis of imposition of the transfer duties, according to the transferor and the transferee, and, where applicable, the portion thereof that is subject to the third paragraph of section 4;

(f)  the amount of the transfer duties;

(g)  where applicable, the provision of any of sections 17 to 20 under which, according to the transferee, the transferee is exempted from the payment of transfer duties;

(h)  any other particular prescribed by regulation.

The parties must declare, in a separate writing, whether or not there is a transfer of both a corporeal immovable and movables referred to in section 1.0.1. The declaration shall include the information prescribed under subparagraphs a to d of the first paragraph. If the declaration mentions that there is such a transfer, it shall also include the information prescribed in the other subparagraphs of the said paragraph, where applicable, in respect of the aggregate of the movables referred to in section 1.0.1 which are transferred with the immovable.

1976, c. 30, s. 9; 1991, c. 32, s. 236; 1993, c. 78, s. 26.

9.1. For the purposes of this Act, a person applying for the registration of a transfer must present to the registrar, in addition to the documents required for the registration, a copy, authenticated or not, of the deed of transfer, and a copy, authenticated or not, of the summary or extract if the application is made by means of such documents, and the declaration provided for in the second paragraph of section 9.

Where the deed of transfer concerns immovables situated in the territory of more than one municipality, the applicant must present one copy for each municipality.

1993, c. 78, s. 27; 1995, c. 33, s. 22.

9.2. The registrar must refuse to register a transfer where he finds that the application for registration does not contain the information required under the first paragraph of section 9.

The registrar must also refuse to register the transfer if the applicant fails to file the copies prescribed in section 9.1.

1993, c. 78, s. 27.

10. Within 15 days of the registration of the transfer, the registrar shall give notice of the transfer to the officer in charge of tax collection in the municipality in the territory of which the immovable is situated by transmitting to him the copies presented by the applicant under section 9.1.

If the municipality does not have jurisdiction in matters of assessment, the officer shall send a copy of every document transmitted to him under the first paragraph, as soon as possible after receiving it, to the municipal body responsible for assessment having jurisdiction in respect of the municipality under the Act respecting municipal taxation (chapter F-2.1).

1976, c. 30, s. 10; 1991, c. 32, s. 237; 1993, c. 78, s. 28.

11. Transfer duties are exigible from the thirty-first day following the day an account therefor is sent by the officer in charge of tax collection for the municipality. Interest thereon accrues from such day at the rate then in force in respect of interest on arrears of such taxes.

The account must inform the debtor of the rules prescribed in the first paragraph.

1976, c. 30, s. 11; 1991, c. 32, s. 238; 1996, c. 2, s. 656.

12. The transfer duties constitute a prior claim on the movable property of the debtor and on the immovable that is the subject of a transfer other than a contract of lease, of the same nature and with the same rank as the claims described in paragraph 5 of article 2651 of the Civil Code; the transfer duties are secured by a legal hypothec on the movable property and, where required, on the immovable.

1976, c. 30, s. 12; 1992, c. 57, s. 625; 1994, c. 30, s. 99.

12.1. The transfer duties payable by reason of a transfer are exigible from any person who becomes an assignee of the immovable after the person who was a party to the transfer.

1994, c. 30, s. 99.

12.2. In addition to the mode of recovery provided in section 16, for the purposes of the legislative provisions respecting the sale of an immovable under the authority of a municipality for failure to pay taxes, the transfer duties shall be regarded as a municipal tax imposed on the immovable that is the subject of the transfer.

1994, c. 30, s. 99.

13. Any claim resulting from transfer duties is prescribed by three years from the registration of the transfer, except any amount unpaid on such claim as the result of fraudulent representation or of declarations equivalent to fraud.

1976, c. 30, s. 13; 1993, c. 78, s. 29.

14. Where the officer in charge of tax collection in the municipality is of the opinion that the amount of the basis of imposition of the transfer duties or the amount of such duties differs from the amount mentioned in the application for registration and in the declaration provided for in the second paragraph of section 9, or that the transfer has been falsely interpreted as being a transfer subject to Chapter III, he must mention in the account any change that he considers should be made to the information contained in the application and the declaration.

The transfer duties are payable on the basis of the amended information contained in the account, subject to any judgment without appeal resulting from an action instituted by virtue of section 16.

1976, c. 30, s. 14; 1993, c. 78, s. 30.

15. (Repealed).

1976, c. 30, s. 15; 1979, c. 72, s. 490; 1987, c. 2, s. 1; 1991, c. 29, s. 28.

16. From the day they are exigible, transfer duties are recoverable in the manner provided for actions in recovery of taxes in accordance with, as the case may be, articles 1019 and 1020 of the Municipal Code (chapter C-27.1) or sections 509 and 510 of the Cities and Towns Act (chapter C-19), mutatismutandis. The court may then adjudicate on any litigation resulting from the application of section 14.

For the purposes of this section, the Cities and Towns Act applies to the cities of Québec and Montréal, mutatismutandis.

Where the difference between the amount of the transfer duties mentioned in the application for registration and in the declaration provided for in the second paragraph of section 9 and the amount indicated in the account as established under section 14 is not over the maximum amount of a claim which may be recovered before the courts in accordance with Book VIII of the Code of Civil Procedure (chapter C-25), the transferee having paid the account in full within the delay prescribed in section 11 may bring an action in accordance with the said Book to recover any overpayment of the amount he may be lawfully bound to pay. The transferee must exercise such recourse within 90 days from the expiry of the delay provided in section 11, and thereupon it is incumbent on the municipality to justify the account as established under section 14.

1976, c. 30, s. 16; 1991, c. 32, s. 239; 1993, c. 78, s. 31.

CHAPTER III EXEMPTIONS

17. There shall be an exemption from the payment of transfer duties in the following cases:

(a)  where the transferee is a public body;

(b)  where an immovable acquired either by a municipality or by an urban community by virtue of the Act respecting municipal industrial immovables (chapter I-0.1) is transferred by such municipality or such community by virtue of sections 6, 11 or 12 of that Act or any legislative provision to the same effect;

(c)  where an immovable is transferred for industrial purposes or for industrial and commercial purposes, by a transferor that is a public corporation created by an Act of the Legislature, which is under the obligation to make an annual report either to the Minister of Industry, Trade, Science and Technology or to the Minister of Municipal Affairs;

(d)  (paragraph repealed);

(e)  where the immovable transferred is one of those referred to in section 8 of the Mining Act (chapter M-13.1); or

(f)  where the immovable is transferred by a municipality, regional county municipality, school board or fabrique to a transferee who had formerly transferred it gratuitously to that municipality, regional county municipality, school board or fabrique.

1976, c. 30, s. 17; 1978, c. 61, s. 2; 1979, c. 77, s. 27; 1984, c. 36, s. 44; 1987, c. 2, s. 2; 1987, c. 64, s. 337; 1988, c. 41, s. 89; 1990, c. 85, s. 122; 1991, c. 29, s. 29; 1993, c. 78, s. 32; 1994, c. 16, s. 51; 1994, c. 30, s. 100; 1996, c. 2, s. 657.

17.1. There shall be an exemption from the payment of transfer duties if the transferee declares that in the year that follows the registration of the transfer, the immovable will form part of an agricultural operation registered in his name in accordance with a regulation made under section 36.15 of the Act respecting the Ministère de l’Agriculture, des Pêcheries et de l’Alimentation (chapter M-14).

If the municipality has not received proof, on the expiry of the time limit, that the immovable has become part of an operation referred to in the first paragraph, or the immovable is the subject of another transfer before the municipality receives such proof, the transferee having invoked the exemption becomes bound to pay the transfer duties, the amount of which shall be increased by the amount of interest calculated at the rate referred to in section 11 that accrues from the date of registration of the transfer to the time of payment of the principal. The account contemplated in that section that is then sent to the debtor must inform the debtor of the amount of interest having accrued to the date of the drawing up of the account and of the method of calculation of the amount to be added for each full day after that date but before the payment of the principal.

1994, c. 30, s. 101.

18. There shall be an exemption from the payment of transfer duties where the business of the transferee consists in the lending of money on the security of real property and the following conditions have been fulfilled:

(a)  the transfer of an immovable to the transferee must result from the exercise of a right to take in payment or must have been effected in any other manner for the purpose of extinguishing a debt secured by real property or ensuring the protection of such security or of any claim;

(b)  the transferee must not be a person related to the transferor within the meaning of section 19 of the Taxation Act (chapter I-3); and

(c)  the transferee must not have acquired the land pursuant to one or more transactions made mainly for the purpose of avoiding or evading the payment of transfer duties.

1976, c. 30, s. 18; 1992, c. 57, s. 626; 1993, c. 78, s. 33.

19. There shall be an exemption from the payment of transfer duties in the following cases:

(a)  the transfer is made by a transferor who is a physical person to a transferee who is a corporation of which at least 90 per cent of the issued shares of the capital stock to which are attached full voting rights are owned by such transferor immediately after the transfer;

(b)  the transfer is made by a transferor that is a corporation to a natural person, if such person is, immediately before the transfer, the owner of at least 90 per cent of the issued full voting shares of the capital stock of the transferor;

(c)  the transferee is a new corporation resulting from the amalgamation of several corporations;

(d)  the transferee is the parent corporation of the transferor, a subsidiary of the transferor or a subsidiary of a corporation that is a subsidiary of the transferor;

(e)  the transferor is a subsidiary of a corporation that is a subsidiary of the transferee;

(f)  both the transferor and the transferee are subsidiaries of the same parent corporation or subsidiaries of one or several corporations that is or are, as the case may be, a subsidiary or subsidiaries of the same parent corporation;

(g)  the transfer is made by a transferor that is a non-profit corporation to a transferee that is a non-profit corporation, where 90 per cent of the members of one of these corporations are, at the time of the transfer, members of the other corporation.

For the purposes of paragraphs d, e and f of the first paragraph, a corporation is a subsidiary, at a particular time, of another corporation, called the “parent corporation”, where at least 90 per cent of the issued full voting shares of its capital stock are the property of the latter.

1976, c. 30, s. 19; 1978, c. 61, s. 3; 1993, c. 78, s. 34; 1995, c. 7, s. 9.

19.1. Special duties may be imposed in lieu of transfer duties on a corporation that is a transferee contemplated in section 19, in the circumstances set out in section 1129.29 of the Taxation Act (chapter I-3).

1993, c. 64, s. 1.

20. There shall be an exemption from the payment of transfer duties in the following cases:

(a)  the amount of the basis of imposition is less than $5 000;

(b)  the deed relates to the transfer of an immovable to a corporation and the transferor is a trust which was created for the sole purpose of acquiring and holding the immovable temporarily until such corporation is incorporated;

(c)  the deed relates to the transfer of an immovable by a transferor who is a physical person or a trust to a transferee that is a trust where the latter trust has been established for the exclusive benefit of the transferor;

(d)  the deed relates to the transfer of an immovable to an ascendant or descendant in the direct line, or between consorts, or to a transferee who is the consort of the son, daughter, father or mother of the transferor or is the son, daughter, father or mother of the consort of the transferor;

(e)  the deed relates to the transfer of an immovable to a transferee that is a trust, and the transferor and the person in favour of whom the trust was established are related persons within the meaning of paragraph d;

(e.1)  the deed relates to the transfer of an immovable by a trust to the natural person for whose benefit the trust is established, if that person and the person who transferred the immovable to the trust are, in relation to one another, related persons within the meaning of paragraph d;

(f)  the deed relates to the transfer of an immovable to a transferee that has insured a hypothecary loan, where that transfer is made from the hypothecary creditor to the insurer under a clause of the insurance policy stipulating that the payment of the indemnity, in the event of the default of the debtor, depends on that transfer;

(g)  the deed relates to the transfer of an immovable to a transferee who recovers the ownership of the immovable as a consequence of a reservation of ownership in his favour;

(h)  the deed relates to the transfer of an immovable to a housing cooperative and the transferor is a federation of housing cooperatives or a non-profit organization which has acquired the immovable for the sole purpose of transferring it to the housing cooperative.

For the purposes of subparagraph d of the first paragraph, the word “consorts”, in addition to its ordinary meaning, means two persons of opposite sex who, on the date of the transfer, are living in a de facto union and have lived in a de facto union for a period of 12 months ending before the date of the transfer or are the father and mother of a child. Two persons of opposite sex who were living in a de facto union at any time before the date of the transfer are deemed to be living in a de facto union on that date, unless they are living apart on that date by reason of the breakdown of their union and the period during which they have lived apart has lasted at least 90 days and includes the date of the transfer.

The exemption provided in subparagraph d of the first paragraph does not apply to a transfer made to a descendant if the transferor acquired the immovable either from a descendant in the direct line or from a trust that acquired the immovable from such a descendant and the transferor has not retained the ownership of the immovable during a period of at least two years after the acquisition, except if the transfer results from the death of the transferor or the immovable is transferred to the person from whom, or trust from which, the immovable had been acquired.

1976, c. 30, s. 20; 1978, c. 61, s. 4; 1982, c. 63, s. 227; 1992, c. 57, s. 627; 1993, c. 78, s. 35; 1995, c. 7, s. 10; 1997, c. 93, s. 112.

21. (Repealed).

1976, c. 30, s. 21; 1987, c. 2, s. 3; 1991, c. 29, s. 30.

CHAPTER IV FINAL PROVISIONS

22. All information obtained in the application of this Act is confidential, except information which is already public according to law. No one may communicate or allow the communication of any such information to a person not legally entitled thereto, or allow any such person to examine or to have access to a document containing such information.

However, any such information may, on the written request of the interested person or his authorized representative, be communicated to a person designated in the request.

This section applies notwithstanding section 9 of the Act respecting Access to documents held by public bodies and the Protection of personal information (chapter A-2.1).

Whoever contravenes this section is guilty of an offence and is liable to a fine not exceeding $1,000.

1976, c. 30, s. 22; 1987, c. 68, s. 93; 1990, c. 4, s. 608.

23. Whoever:

(a)  makes or participates in, assents to or acquiesces in the making of false or deceptive statements in a document presented to the registrar under section 9.1, or

(b)  wilfully, in any manner, evades or attempts to evade compliance with this Act or the payment of transfer duties,

is guilty of an offence and is liable to a fine not exceeding $2,000 in addition to a penalty of 25% of the amount of the duties which he evaded, attempted to evade or allowed to be evaded.

1976, c. 30, s. 23; 1993, c. 78, s. 36.

24. The Government may make regulations to:

(a)  require the inclusion of certain particulars in the deeds, statements, notices, accounts or other documents contemplated by this act;

(b)  determine the manner in which the particulars required under this act and the regulations must be mentioned;

(c)  designate the public corporations contemplated in paragraph d of the definition of “public body” in section 1;

(d)  establish the rules for the disclosure of the consideration furnished for a transfer and of the market value of any property.

1976, c. 30, s. 24.

25. A regulation made under this Act shall come into force on the date of its publication in the Gazette officielle du Québec or on any later date fixed therein.

1976, c. 30, s. 25.

26. (Repealed).

1976, c. 30, s. 26; 1991, c. 32, s. 240.

27. For the purposes of article 678.0.1 of the Municipal Code of Québec (chapter C-27.1) and sections 196 and 250.1 of the Act respecting municipal taxation (chapter F-2.1), the transfer duties shall be regarded as a municipal tax.

1976, c. 30, s. 27; 1979, c. 36, s. 105; 1991, c. 32, s. 241; 1996, c. 67, s. 67.

28. The Minister of Municipal Affairs shall have charge of the application of this Act.

1976, c. 30, s. 28.

29. (This section ceased to have effect on 17 April 1987).

1982, c. 21, s. 1; U. K., 1982, c. 11, Sch. B, Part I, s. 33.

REPEAL SCHEDULE

In accordance with section 9 of the Act respecting the consolidation of the statutes and regulations (chapter R-3), chapter M-39 of the Revised Statutes, in force on 1 September 1991, is repealed, effective from the coming into force of chapter D-15.1 of the Revised Statutes.