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THE ADVOCATE V O L . 7 5 P A R T 2 M A R C H 2 0 1 7 221 (c) Citizens of a Yukon First Nation who are resident in Yukon are no longer entitled to tax relief set out in TIB B-039. However, relief from the GST/HST, set out in TIB B-039, continues to apply to members of those Yukon First Nations with a final agreement that are not resident in Yukon. In addition, the remaining three Yukon First Nations (Liard, Ross River Dena Council and White River) have not completed final agreements so they and their members are still entitled to relief from the GST/HST as set out in TIB B-039. See CRA, GST/HST Notice 238, “First Nations Having a Self-Government Agreement Ending Indian Act Tax Relief – Determining Tax Relief for Indian Members Who Are Not Citizens” (October 2008). Note that while these First Nations may have agreed to give up tax-relief rights, their members are still entitled to carry a Certificate of Indian Status Card as this card is also used for other purposes. 25. A “reserve” for purposes of the Excise Tax Act means a reserve within the meaning of the Indian Act—that is, a tract of land that has been set apart for the use and benefit of a band within the meaning of the Indian Act and equivalent lands under selfgovernment legislation (e.g., the Cree-Naskapi (of Quebec) Act, SC 1984, c 18 and the Sechelt Indian Band Self-Government Act, SC 1986, c 27). A reserve also includes “designated land”, which according to the Indian Act is a tract of land whose legal title remains vested in Her Majesty and in which the band for whose use and benefit it was set apart as a reserve has, otherwise than absolutely, released or surrendered its rights or interests. The settlements affected by remission orders for Indians and bands on certain Indian settlements are also treated as reserves. These remission orders cover a limited number of settlements in Canada for which a public commitment has been made by the Government of Canada to grant reserve status under the Indian Act. See CRA, GST/HST Technical Information Bulletin B-039, “GST/HST Administrative Policy – Application of the GST/HST to Indians” (June 2013). 26. Ibid. 27. If a Certificate of Indian Status Card is produced, the lawyer must record on the invoice the recipient’s registry number or the band name and family number (commonly referred to as the band number/ treaty number), which is found on the card. 28. If a temporary confirmation of registration document is produced, the lawyer must record on the invoice the recipient’s registry number and expiry date, which is found on the document. 29. Subsection 123(1) defines “testamentary trust” as having the meaning assigned thereto by subsection 248(1) of the Income Tax Act and defines “inter vivos trust” as meaning a trust other than a testamentary trust. 30. CRA, GST/HST Technical Information Bulletin B- 068, “Bare Trusts” (January 20, 1993) states the following: For the purposes of administering the GST, the CRA will consider a bare trust (also referred to as a naked trust) to exist where a person (the trustee) is merely vested with the legal title to property and has no other duty to perform, responsibilities to carry out, or powers to exercise as trustee of the trust property. In the CRA’s view, someone other than the trustee controls the property, and accordingly carries on the commercial activity that relates to the property. The CRA views these persons as being the owner of the property for GST purposes. The person or persons with the real ownership of the property may be a ‘beneficiary’, or a ‘settlor’ under trust law. In this bulletin, such a person will be referred to as the ‘beneficial owner’. The sole duty of a bare trustee will be to convey legal title to the trust property on demand by and according to the instructions of the beneficial owner. This would generally be provided for in the trust document or other documents establishing the trust. The bare trustee will not have any independent power, discretion or responsibility pertaining to the trust property. In such cases, the beneficial owner retains the right to control and direct the trustee in all matters relating to the trust property. Therefore, a trust will not be considered to be a bare trust where the trustee has other duties which involve independent or discretionary powers and responsibilities. Emphasis removed. 31. Under the common law, a trust is resident where its central management and control is effectively exercised: Fundy Settlement v Canada, 2012 SCC 14 at para 15. Although the central management and control of a trust is typically exercised where its trustees meet to exercise their duties and authority in relation to the trust property, it is always a question of fact where the central management and control of a trust is exercised. 32. Paragraph 132(1)(c). 33. An “Indian band” for purposes of the Excise Tax Act includes both a band council and a tribal council. The band council is the primary unit of an Indian government. A tribal council is another level of Indian government that is a grouping of bands with a common interest that have joined together to provide advisory or program services for two or more bands. Band council members compose the tribal council board of directors. See CRA, GST/HST Technical Information Bulletin B-039, “GST/HST Administrative Policy – Application of the GST/HST to Indians” (June 2013). 34. Supra note 24. 35. A “band-empowered entity” is defined in CRA, GST/HST Technical Information Bulletin B-039, “GST/HST Administrative Policy – Application of the GST/HST to Indians” (June 2013) as: a corporation, board, council, association, society, or other organization that is owned or controlled by a band, a tribal council or a group of bands other than a tribal council. .... A band-empowered entity is considered to be situated on a reserve when the entity maintains a presence on a reserve. An entity is considered to be owned by a band, a tribal council or a group of bands other than a tribal council if: • the band, tribal council or group of bands owns all or substantially all of the shares or holds all or substantially all of the memberships of the entity; or • the band, tribal council or group of bands holds title to the assets of the entity or controls its disposition, such that


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