74.2 (1) In this section, “administrator” means, (a) in respect of a funded benefit plan, (i) a person who receives contributions paid into the plan from which benefits will be paid, (ii) a person to whom fees are paid for administering or servicing the plan or for reviewing the propriety of claims made by members of the plan, (iii) the trustee or other legal representative having ownership or control of the trust property if the benefit plan is a trust, (iv) each partner of the partnership if the business of an administrator of the plan is carried on by two or more persons in partnership, (v) a planholder of the plan, if the person who receives the contribution paid into the plan is not an Ontario administrator of the plan at the time the contribution is made to the plan, (b) in respect of an unfunded benefit plan, (i) a person who makes the payment of a benefit to or for the benefit of members of the plan, (ii) a person to whom fees are paid for administering or servicing the plan or for reviewing the propriety of claims made by members of the plan, (iii) each partner of the partnership if the business of an administrator of the plan is carried on by two or more persons in partnership, (iv) a planholder of the plan, if the person who makes the payment of the benefit is not an Ontario administrator of the plan at the time the payment is made; (“administrateur”) “benefit plan” means a plan, fund or arrangement which gives protection against risk to an individual that could otherwise be obtained by taking out a contract of insurance, whether the benefits are partly insured or not, and under which the payment of benefits is made directly to or for the benefit of a member of the plan, upon the occurrence of a risk, but does not include, (a) a plan or fund established by or under an Act of the Parliament of Canada or the Legislature of Ontario, (b) a contract referred to in section 4 of the Prepaid Hospital and Medical Services Act between an association registered under that Act and persons who are subscribers with or members of the association; (“régime d’avantages sociaux”) “contribution” does not include any amount paid to a funded benefit plan that can reasonably be considered to be an administration fee payable in respect of the plan; (“cotisation”) “funded benefit plan” means a benefit plan that comes into existence when the amount of contributions paid into a fund out of which benefits will be paid exceeds the amounts required for the payment of benefits foreseeable and payable within 30 days; (“régime d’avantages sociaux par capitalisation”) “member” means an individual to whom or for the benefit of whom benefits are payable under a benefit plan; (“participant”) “net administration fees”, paid during a period of time in respect of a benefit plan, means the amount by which the total administration fees paid during that period of time for the administration or servicing of the plan or for reviewing the propriety of claims made by members of the plan exceed the amount, if any, which can reasonably be considered to be the portion of the administration fees relating to benefits that are, (a) paid to or for the benefit of a member of the plan who is an Indian within the meaning of the Indian Act
(Canada), ordinarily resident on a reserve in Canada at the time the contribution is made, (b) paid to or for the benefit of a member of the plan not resident in Ontario at the time the contribution is made, or (c) required to be included in the income from an office or employment for the purposes of taxation under the Income Tax Act (Canada) of a member of the plan; (“frais d’administration nets”) “Ontario administrator” means an administrator of a benefit plan who has a permanent establishment in Ontario for the purposes of this Act or the Income Tax Act (Canada); (“administrateur ontarien”) “planholder” means, (a) in relation to a benefit plan that is not a qualifying trust, a person who provides or causes another person to provide the benefit plan, either alone or together with one or more other persons, or (b) in relation to a benefit plan that is a qualifying trust, each trustee of the qualifying trust; (“titulaire de régime”) “protection against risk to an individual” includes any undertaking to pay on death or disability, or for supplemental health care, drugs, dental care, vision care, hearing care or for protection against loss of income due to illness or accident or that provides any other similar benefit to or in respect of an individual; (“protection personnelle contre un risque”) “qualifying trust” means a trust established on or after December 1, 2010 that is prescribed by the regulations or that satisfies the conditions prescribed by the regulations; (“fiducie admissible”) “taxable benefit” means a benefit paid to or for the benefit of a member of an unfunded benefit plan, other than a member who is, (a) an Indian within the meaning of the Indian Act (Canada), ordinarily resident on a reserve in Canada at the time the benefit is paid, (b) not resident in Ontario at the time the benefit is paid, or (c) required to include the amount of a benefit under the plan in his or her income from an office or employment for the purposes of taxation under the Income Tax Act (Canada); (“prestation imposable”) “taxable contribution” means a contribution made to a funded benefit plan that cannot reasonably be considered to fund the payment of a benefit, (a) to or for the benefit of a member of the plan who is an Indian within the meaning of the Indian Act
(Canada), ordinarily resident on a reserve in Canada at the time the contribution is made, (b) to or for the benefit of a member of the plan not resident in Ontario at the time the contribution is made, or (c) that is required to be included in the income from an office or employment for the purposes of taxation under the Income Tax Act (Canada) of a member of the plan; (“cotisation imposable”) “unfunded benefit plan” means a benefit plan other than a funded benefit plan. (“régime d’avantages sociaux sans capitalisation”)  1996, c. 1, Sched. B, s. 9 (1); 2004, c. 16, s. 2 (2); 2010, c. 26, Sched. 4, s. 1 (1, 2); 2011, c. 9, Sched. 8, s. 1. Amount of tax in respect of a funded benefit plan (2) The amounts of tax payable under subsection 2 (2.1) by a planholder and by a member of a funded benefit plan shall be determined as follows: 1. The amount of tax payable by a planholder of the plan is equal to the sum of the following amounts: i. 2 per cent of the taxable contributions made by the planholder to the plan. ii. 2 per cent of the net administration fees paid in respect of the plan to the extent that the funds used to pay the fees have not been subject to tax as taxable contributions to the plan. 1.1 Despite paragraph 1, if the plan is a qualifying trust, the amount of tax payable by a planholder of the plan is equal to the sum of the following amounts: i. 2 per cent of the taxable contributions received by the planholder from a person other than a member of the plan. ii. 2 per cent of the net administration fees paid in respect of the plan to the extent that the funds used to pay the fees have not been subject to tax as taxable contributions to the plan. 2. The amount of tax payable by a member of the plan shall be an amount equal to 2 per cent of the taxable contributions, if any, made by the member to the plan.  1996, c. 1, Sched. B, s. 9 (1); 2004, c. 16, s. 2 (2); 2010, c. 26, Sched. 4, s. 1 (3). Amount of tax in respect of an unfunded benefit plan (3) The amount of tax payable under subsection 2 (2.1) by a planholder and by a member of an unfunded benefit plan shall be determined as follows: 1. The amount of tax payable by a planholder of the plan is equal to the sum of the following amounts: i. 2 per cent of the taxable benefits paid under the plan that are funded by the planholder. ii. 2 per cent of the net administration fees paid in respect of the plan. 1.1 Despite paragraph 1, if the plan is a qualifying trust, the amount of tax payable by a planholder of the plan is equal to the sum of the following amounts: i. 2 per cent of the taxable benefits paid under the plan that are funded from amounts received by the planholder from a person other than a member of the plan. ii. 2 per cent of the net administration fees paid in respect of the plan. 2. The amount of tax payable by a member of the plan shall be an amount equal to 2 per cent of the amount, if any, of the taxable benefits paid under the plan that are funded by the member.  1996, c. 1, Sched. B, s. 9 (1); 2004, c. 16, s. 2 (2); 2010, c. 26, Sched. 4, s. 1 (4). Election by qualifying trust (3.1) A planholder of a benefit plan that is a qualifying trust may elect on or after December 1, 2010 to have the rules in subsection (3.2) apply if the following circumstances exist: 1. The planholder elects, in the form and manner approved by the Minister, to have the rules in subsection (3.2) apply. 2. The amounts in the plan out of which benefits will be paid exceed the amounts required for the payment of benefits foreseeable and payable within three years, or a different period prescribed by the Minister.  2010, c. 26, Sched. 4, s. 1 (5). Same, effect of election (3.2) If a planholder makes an election under subsection (3.1), the following rules apply: 1. The planholder’s tax payable under subsection 2 (2.1) shall not be determined under subsection (2). 2. The planholder’s tax payable under subsection 2 (2.1) shall be determined under subsection (3). 3. The qualifying trust is considered an unfunded benefit plan for the purposes of this Act.  2010, c. 26, Sched. 4, s. 1 (5). Unfunded plan becomes funded (3.3) The following rules apply with respect to an unfunded benefit plan that becomes a funded benefit plan at any particular time on or after November 18, 2010: 1. In addition to any amounts of tax payable that are determined under subsection (3) or (4), the amount of tax payable under subsection 2 (2.1) by a planholder or by a member of a plan shall be determined in accordance with paragraphs 2 and 3. 2. The amount of tax payable by a planholder of the plan shall be an amount equal to 2 per cent of the amounts held by the plan at the particular time that are attributable to amounts funded by the planholder or received by the planholder from a person other than a member of the plan. 3. The amount of tax payable by a member of the plan shall be an amount equal to 2 per cent of the amounts
held by the plan at the particular time that are attributable to amounts funded by the member.  2010, c. 26, Sched. 4, s. 1 (5). Funded plan becomes unfunded (3.4) The following rules apply with respect to a funded benefit plan that becomes an unfunded benefit plan at any particular time on or after November 18, 2010: 1. The amount of tax payable under subsection 2 (2.1) that is determined under subsection (3) after the particular time by a planholder or a member of the plan shall be reduced in accordance with paragraphs 2 and 3. 2. The amount of tax payable by a planholder shall be reduced by 2 per cent of the amounts held by the plan at the particular time and that are attributable to taxable contributions made by the planholder or received by the planholder from a person other than a member of the plan to the extent that they have not been applied under this subsection to reduce the tax payable under subsection (3) since the particular time. 3. The amount of tax payable by a member shall be reduced by 2 per cent of the amounts held by the plan at the particular time that are attributable to taxable contributions made by the member to the extent that they have not been applied under this subsection to reduce the tax payable under subsection (3) since the particular time.  2010, c. 26, Sched. 4, s. 1 (5). Time of payment and collection of tax (4) The tax payable under subsection 2 (2.1) in respect of a benefit plan, (a) is payable at the time of each contribution to the plan in the case of a funded benefit plan, or payment of a benefit under the plan in the case of an unfunded benefit plan, and at the time of each payment of administrative fees; and (b) shall be paid at that time by the person liable to pay the tax to the Ontario administrator of the plan, who shall act as agent of the Minister to collect the tax and pay it over to the Minister.  1996, c. 1, Sched. B, s. 9 (1); 2004, c. 16, s. 2 (2). Payment to the Minister (5) The amount of tax payable under subsection 2 (2.1) that an Ontario administrator of one or more benefit plans is required to collect under this section shall be accounted for and paid over to the Minister by the administrator in the following manner: 1. The amount of tax collected by the administrator during a taxation year of the administrator shall be a debt due by the administrator to Her Majesty in right of Ontario. 2. Instalments of tax payable under this Act by the administrator shall be calculated on the basis that the amount of tax the administrator is or will be required to collect during a taxation year is tax payable under Part IV by the administrator for that taxation year. 3. For the purposes of Parts V and VI, the tax required to be collected by the administrator during a taxation year shall be deemed to be tax payable under Part IV by the administrator for that taxation year and may be enforced and collected from the administrator by the Minister in the same way as any other tax payable by the administrator under this Act.  1996, c. 1, Sched. B, s. 9 (1); 2004, c. 16, s. 2 (2). Tax assessment (6) If the Minister is of the opinion that a person liable to tax under subsection 2 (2.1) is not complying with the person’s obligations under this Act, the Minister may assess against that person the tax payable by the person under subsection 2 (2.1) and, where the Minister has assessed tax under this subsection, the following apply: 1. The assessment shall be deemed to have been made under subsection 80 (17). 2. Interest at the rate prescribed by the regulations shall be calculated and charged daily and be payable by the person from the day on which the person was required to pay the tax to the administrator under this section to the day on which the tax and interest is paid. 3. Subsection 80 (18), sections 81, 84, 85 to 91 and 93, subsection 95 (2) and sections 96, 97, 99 to 108 and 110 apply with such modifications as the circumstances require. 4. A reference to “corporation” in a provision of the Act referred to in paragraph 1 or 3 shall be deemed to include a reference to the person against whom the tax is assessed.  1996, c. 1, Sched. B, s. 9 (1); 2004, c. 16, s. 2 (2). Penalty for non-collection of tax (7) The Minister may assess against an administrator who has failed to collect tax that the administrator is required to collect under this section a penalty equal to the amount of tax the administrator failed to collect, but any penalty assessed under this subsection by the Minister shall be calculated without reference to, (a) any tax the administrator failed to collect that has been assessed by the Minister under subsection (6) against the person liable to the tax under subsection 2 (2.1); and (b) the amount, if any, paid over to the Minister on account of the tax the administrator failed to collect.  1996, c. 1, Sched. B, s. 9 (1); 2004, c. 16, s. 2 (2). Same (8) A penalty assessed under subsection (7) shall be deemed for the purposes of subsection 78 (2) and sections 79, 82 and 83 to be tax payable by the administrator under this Act for the taxation year during which the administrator was required to collect the tax under this section.  1996, c. 1, Sched. B, s. 9 (1); 2004, c. 16, s. 2 (2). Multiple Ontario administrators (9) If during a period of time more than one person is an Ontario administrator of the same benefit plan, other than by reason of being a partner in a partnership, one of the persons may, with the return required under this Act for the taxation year that includes part or all of the period of time, deliver an election in a form approved by the Minister, (a) specifying the particular plan, the period of time in the taxation year during which the person was not the only Ontario administrator of the plan and the name and address of each person who was also an Ontario administrator of the plan during that period; and (b) containing the person’s certificate that all tax payable under subsection 2 (2.1) in respect of the plan for that period of time is accounted for by the person in the return.  1996, c. 1, Sched. B, s. 9 (1); 2004, c. 16, s. 2 (2). Continuing liability (10) If part or all of the tax that is the subject of an election under subsection (9) is not accounted for in the return or not paid to the Minister at the time required under this Act, or no election is delivered under subsection (9) in respect of the period of time during which there was more than one Ontario administrator of the plan, the Minister may assess one or more of the persons who were Ontario administrators of the plan during the period of time for an amount equal to the tax payable under subsection 2 (2.1) in respect of the plan for that period of time that was not accounted for or remains unpaid to the Minister, and each amount assessed shall be deemed for the purposes of Parts V and VI to be tax payable under Part IV by the administrator who is assessed, for the taxation year or years that include the period of time.  1996, c. 1, Sched. B, s. 9 (1); 2004, c. 16, s. 2 (2). Partnership (11) If a person is an administrator of a benefit plan by reason of being a partner in a partnership that carries on the business in Ontario of an administrator of the plan, the following rules apply: 1. The person shall be considered to be an Ontario administrator of the benefit plan for a taxation year if the partnership is considered to have a permanent establishment in Ontario for the purposes of this Act or the Income Tax Act (Canada) for a fiscal period of the partnership that ends in the person’s taxation year. 2. The person shall be deemed to be required to collect and pay over to the Minister under this section for a taxation year all amounts of tax in respect of the plan determined according to the following formula: T = P × R where: “T” is an amount of tax the person shall be deemed to be required to collect and pay over to the Minister under this section for the taxation year, “P” is the amount of tax that would be required, if the partnership were an Ontario administrator of the plan, to be collected and paid over to the Minister by the partnership under this section for a fiscal period of the partnership ending in the person’s taxation year, and “R” is the percentage of the income or loss of the partnership to which the person is entitled for the same fiscal period of the partnership ending in the person’s taxation year. 3. The person may deliver a return under this Act jointly with other partners of the partnership who are Ontario administrators of the plan, if all terms and conditions as may be specified from time to time by the Minister that entitle partners to deliver a joint return have been satisfied. 4. A return delivered under paragraph 3 shall be in a form approved by the Minister and shall contain the information specified by the Minister.  1996, c. 1, Sched. B, s. 9 (1); 2004, c. 16, s. 2 (2). Saving, funded benefit plan (12) For the purposes of this Act, a funded benefit plan does not cease to be a funded benefit plan even though at the end of any month the balance in the plan does not exceed the amount required for the payment of benefits foreseeable and payable within 30 days thereafter, so long as the contributions required to fund the plan are made within the following 30 days.  1996, c. 1, Sched. B, s. 9 (1); 2004, c. 16, s. 2 (2). Discretionary tax relief (13) The Minister may remit an amount of tax payable under subsection 2 (2.1) that has been calculated by reference to the amount of a benefit paid under an unfunded benefit plan if the unfunded plan was previously a funded plan and the Minister is satisfied that the amount of the benefit was included in the determination of an amount of tax paid under subsection 2 (2.1) in respect of contributions made to the plan when it was a funded benefit plan.  1996, c. 1, Sched. B, s. 9 (1); 2004, c. 16, s. 2 (2). Section Amendments with date in force (d/m/y) 1996, c. 1, Sched. B, s. 9 (1, 2) - 01/07/1993 2004, c. 16, s. 2 (2)
- 01/01/2004 2010, c. 26, Sched. 4, s. 1 (1-5) - 01/12/2010 2011, c. 9, Sched. 8, s. 1 - 01/12/2010 Tax in respect of contract with unlicensed insurer