Tobacco Retailer's Guide

Disclaimer: This guide is intended to provide information with respect to retailers under the Tobacco Tax Act (the Act). This guide should not be regarded as a replacement of the laws, regulations or administrative documents to which it refers.

The Tobacco Tax is a provincial tax on the consumption of tobacco products and is administered by the Revenue and Taxation Division of the Finance and Treasury Board.  All tobacco products purchased or consumed in New Brunswick are subject to tobacco tax. The Tobacco Tax Act (the Act) places the responsibility to pay the tax on the consumer.

The current tax rates are (Effective February 1, 2017):

• 25.52 cents on each cigarette,
• 25.52 cents on each tobacco stick,
• Seventy-five percent (75%) of the normal retail selling price of each cigar, and
• 25.52 cents on each gram or any portion of a gram of any tobacco purchased other than cigarettes, cigars and tobacco sticks

Note:  Taxes are subject to change.  For verification of current tax rates, please contact the Revenue Administration Division at 1-800-669-7070 or visit the Finance and Treasury Board website at www.gnb.ca/finance.

For simplicity in administration, the tax is collected at the wholesale level. This means that licensed wholesalers collect an amount equal to the tax on or before delivery of the tobacco product to the retailer. The retailer, in turn, includes this tax in the price at the point of sale to the consumer.

Any person (individual, partnership or corporation) who wishes to purchase tobacco in the province for the purpose of resale to consumers must obtain a Tobacco Retailer’s Licence.

Licence Application

Application forms can be obtained online at the following addresses:

• Finance and Treasury Board at: www.gnb.ca/finance and click on “Forms” or
• Service New Brunswick at: www.snb.ca and click on “Forms by Department”

If you are unable to obtain an application form online, contact Finance and Treasury Board at 1-800-669-7070, Monday to Friday, 8:15 a.m. to 5 p.m.

Applications may also be completed and submitted online by accessing the Service New Brunswick website at: www.snb.ca and selecting the “For Businesses” tab and choosing the “Application for Retailer’s Licence of Tobacco and/or Gasoline and Motive Fuel” heading.

Please be advised that payment with a credit card is restricted to online submissions.

Licence Fee

The fee for a retailer’s licence is $100 with an annual renewal fee of $50. All retailer licences expire on May 31 of each year and must be renewed annually. Licences are location specific; therefore, any retailer operating multiple locations will require a separate licence for each location.

Note:  Effective June 1, 2014, as per section 6.3 of the Tobacco And Electronic Cigarette Sales Act, it will no longer be permissible to sell tobacco products from vending machines.

Licence Rules

1. The Finance and Treasury Board must be notified of any change of address;
2. A tobacco retailer licence is not transferable from one location to another; and
3. A tobacco retailer licence cannot be transferred from one person to another.

Rejection of a Licence

The Minister may refuse to issue any licence if he has reasonable or probable grounds to believe that the applicant has:

1. been convicted of a violation of a provision of the Tobacco Tax Act or any provision relating to tobacco in any other Act;
2. failed to comply with any term or condition imposed on a previously issued licence; or,
3. had a previously issued licence revoked within the last five years.

Suspension of a Licence

The Minister may suspend a licence for a period of time established by regulation if the Minister has reasonable and probable grounds to believe that the licence holder has violated or is failing to comply with the Act or Regulations or with any term or condition of the licence.

Suspensions will be one calendar month for the first offense. For each subsequent suspension, the suspension period will be double the number of months of the previous suspension.

Revocation of a licence

The Minister may revoke any licence if the Minister has reasonable and probable grounds to believe that the licence holder has violated or is failing to comply with the Act or Regulations or with any term or condition of the licence. This is an involuntary cancellation of a licence.  Once a licence is revoked, the retailer must reapply and meet all licensing conditions in order to be eligible to sell tobacco products again.

Cancellation of a licence

Cancellation of a licence occurs as a result of a business closure and is voluntary on the part of a licence holder. All requests for cancellation must be in writing. 

The licence holder must also notify the Finance and Treasury Board when they sell their business because a licence cannot be issued to the new proprietor until the previous owner’s tobacco licence has been cancelled.

Reinstatement of a Licence

The Minister may reinstate any licence and may impose any combination of conditions and terms established in accordance with the regulations. For example, the Minister may request that an audit be conducted prior to reinstatement.  (A new application must be submitted and the fee paid)

Purchase Rules:

1. To ensure that the tobacco tax is paid on tobacco sold at retail, retailers are only permitted to purchase from New Brunswick licensed tobacco wholesalers (Note: A list of all New Brunswick licensed tobacco wholesalers is provided with the applicant’s tobacco retailer licence. The validity of a tobacco wholesaler’s licence can also be verified with the Finance and Treasury Board at 1-800-669-7070.);  and
2. Tobacco cannot be taken on consignment.

Exceptions:

A retailer may purchase tobacco products from a person who is not a New Brunswick licensed tobacco wholesaler if:

1. The person resides or carries on business outside the Province and does not otherwise carry on business in respect to tobacco in the Province;
2. The tobacco is not available from a New Brunswick licensed wholesaler;
3. The Minister approves the purchase before the purchase is made;
4. The retailer completes the required application form and deposits with the Minister before the purchase is made, an amount equivalent to the amount of tax for  which the retailer would be liable if the retailer was purchasing the tobacco as a consumer under the Act;
5. The Canada Border Services Agency has, where required,  approved the importation of the tobacco;
6. The retailer notifies the Minister immediately upon receipt of the imported tobacco; and
7. The Minister marks the packages of imported tobacco for sale to consumers.
   

Sale Rules:

1. Retailers shall not sell tobacco to other resellers (retailers or wholesalers);
2. Retailers shall not sell tobacco to any one person in amounts exceeding 1,000 cigarettes (5 cartons) or 1000 grams in any 24-hour period;
3. Tobacco cannot be advertised for sale on the Internet;
4. Retailers shall not advertise or state directly or indirectly to any consumer that the tobacco tax (or any portion of the tobacco tax) will be assumed, absorbed or refunded by the retailer;
5. Retailers shall not ship tobacco either inter-provincially or internationally to consumers.
   

Tobacco cannot be sold to any person under 19 years of age:

Tobacco retailers who give, sell, or otherwise provide tobacco products to persons under 19 years of age are in violation of the Tobacco and Electronic Cigarette Sales Act and may be subject to a fine and/or other penalty under the  Tobacco Tax Act, including suspension of their tobacco retailer licence.

Owners and operators must ensure that their employees are well informed of the restrictions on the sale of tobacco products to persons under the age of 19, as they will be held accountable for any violations committed by their employees. Due diligence must be used to ensure that proof of age is requested when there is any doubt about the age of the purchaser of tobacco products. The sale of tobacco products to underage persons on the assumption that they appear to be aged 19 or over, will not be accepted as justification for violations under the tobacco legislation.

Legal Identification (ID)

Federal and Provincial tobacco legislation states that only the following pieces of identification or documentation are acceptable to prove a person’s age:

• Driver’s Licence
• Passport
• Government-issued certification of Canadian citizenship (with photograph)
• Canadian permanent resident document
• Canadian Armed Forces (Canadian Forces) identification card
• Certificate of Indian Status card (with photograph)
• Two pieces of government-issued identification, one that contains the person’s date of birth and signature, are acceptable.

STUDENT CARDS ARE NOT ACCEPTABLE AS PROOF OF AGE FOR TOBACCO PRODUCT PURCHASES

Consequences for Non-Compliant retailers

Any retailer who sells, gives or otherwise provides tobacco products to anyone under 19 years of age is guilty of a Category E offence under the Provincial Offences Procedure Act and is liable to the following penalties:

• 1^st offence, a fine of not less than $240* and not more than $2,620* and, the tobacco retailer’s licence may be suspended for one calendar month.
• 2^nd and subsequent offences, a fine up to $5,120* and/or up to 30 days of imprisonment and, the tobacco retailer’s license may be suspended for double the number of months of any previous suspension.

*Surcharges and administration fees may apply.

Other Preventive Measures

There are various measures that can be taken within your place of business to prevent the sale of tobacco products to individuals under 19 years of age. Here are a few suggestions:

• Program all cash registers to automatically remind clerks to ask for identification, confirming proof of age of the customer before a tobacco sale is made.
• Show samples of acceptable identification at the checkout to compare with the customer’s identification..
• Review the information regarding proper signage, develop a store policy and ensure that  all staff has been properly trained in accordance with the recommendations contained in the Tobacco Retailer Toolkit, available through the Department of Public Safety at 1-506-453-7472 or on the internet at: http://www.hc-sc.gc.ca
  

All packages, cartons and cases of cigarettes and tobacco sticks and all packages and cases of loose tobacco purchased for sale in New Brunswick are required to have NB specific markings (indicia). Therefore, it is a violation of the Act for any retailer to possess unmarked cigarettes, tobacco sticks or loose tobacco.

Cigarettes, tobacco sticks and loose tobacco  marked with only the federal marking of “Canada Duty Paid” on peach colored stamps or tobacco marked for other jurisdictions cannot be sold in the Province of New Brunswick

Cigarettes, tobacco sticks and loose tobacco  marked with only the federal marking of “Canada Duty Paid” on peach colored stamps or tobacco marked for other jurisdictions cannot be sold in the Province of New Brunswick Tobacco Tax Act and Regulations or any provision relating to tobacco in any other Act.

Cigarettes, Tobacco Sticks and Loose Tobacco

All packages of cigarettes, tobacco sticks and loose tobacco sold in New Brunswick to a consumer must bear the excise stamp issued by the Minister of National Revenue under the Excise Act, 2001 (Canada), with New Brunswick specific markings. The stamp must be affixed to the packages in accordance with the Excise Act, 2001 (Canada).

An illustration of the federal excise stamp bearing New Brunswick’s marking requirements appears below:

A carton of cigarettes or tobacco sticks sold in New Brunswick to a consumer shall be marked with a sticker that is burgundy (Pantone 207) in color and have “NB – N-B” printed in black that seals the end flaps on the wrapper, or if the carton is a paperboard box, located at each end of the box.

A case of cigarettes, tobacco sticks or loose tobacco sold in New Brunswick to a consumer shall be marked in black with the initials “NB” on one side of the case and the initials “N-B” on the opposite side.

Imported Tobacco

All packages of imported tobacco sold in New Brunswick to consumers shall be marked with a sticker that is burgundy in color and shows the Province of New Brunswick galley logo and a six digit serial number.

Tobacco Products not Required to be Marked

The following tobacco products are not required to be marked:

1. Cigars;
2. Pipe tobacco;
3. Smokeless tobacco (snuff and chewing tobacco); and
4. Blunts, blunt wraps, shisha and other low volume specialty products.products.

Every retailer who sells tobacco shall keep and maintain the following:

1. records showing the retailer’s inventories of tobacco products;
2. inventory records supporting all tax remittance or refund claims resulting from changes in the tobacco tax rate;
3. name and address of the tobacco wholesaler from whom the products are purchased and dates of the purchases;
4. copies of the wholesaler purchase invoices for every tobacco product purchase, detailing the number of grams or units and type, package size and  brand name of each type of tobacco product purchased;
5. records verifying the amounts of all tobacco imported by the retailer, including the names and addresses of all persons from whom the tobacco was imported and the dates of the transactions; and
6. a record of all imported tobacco purchased by the retailer, including the number of cigarettes recorded by brand and product name.

In addition, retailers must keep sales invoices or cash register tapes showing date and amount of tobacco sold.

(Note: Invoices or cash register tapes must clearly identify sales of tobacco products from other goods sold.)

Maintenance of Records

Records must be maintained in easily readable paper or electronic format for six years or until such time that authorization is received in writing from the Provincial Tax Commissioner.

Availability of Records

Records shall be made available for inspection and audit by an inspector or an auditor or any person designated by the Commissioner upon request at any reasonable time.

Theft / Fire / Damage

Tobacco tax is collected at the wholesale level to simplify the tax collection system.  However, the Act clearly applies the tax to the consumer at time of purchase.  Therefore, any retailer who incurs a loss of the tobacco prior to sale to a consumer cannot be held responsible for the tax.

To obtain a refund of tobacco tax in these situations, an Application for Refund of Tobacco Tax  (TTA_06B) must be completed and the following must be included with your claim:

1. Copies of invoices pertaining to the purchase of tobacco products prior to the theft or destruction;
2. Documentary evidence in the form of a "proof of loss" form from your Insurance Company stating the date of the theft or loss, the amount of tobacco stolen or destroyed, etc.;
3. A copy of the police report or file number (with a contact name and number) from the Investigating Police Department; and
4. An itemized list of tobacco products stolen, damaged or destroyed.
   

Refund claims shall be made within six (6) months after the day on which the substantiated loss occurred.

Under sections 28 and 29 of the  Revenue Administration Act, any appointed officer, auditor, inspector or any other person with the written authority of the Commissioner may enter  upon the premises of any person in which any business involving the sale of tobacco is carried on in order to:

1. Ascertain the amount of tax payable, or the money remissible by any person;
2. Audit or examine any books of account, records, documents, recordkeeping devices or papers and any account, invoice, voucher, letter, telegram or other document that is related or may relate to the amount of tax that may be payable or is to be collected under the Tobacco Tax Act;
3. Examine any goods or property that may assist him/her in determining the accuracy of any information that is or should be in such books and records;
4. Require the owner or manager of the property or business and any other person on the premises or place to give him/her all reasonable assistance with the audit, inspection or examination and to answer all proper questions relating to such audit, inspection or examination; and
5. Seize any books of account, records, documents or other papers which he/she discovers during an audit, inspection or examination which he/she believes on reasonable ground may provide evidence of an offence under a revenue Act.

The owner, occupier or person in possession or in charge of the premises so entered shall answer all questions relating to any of the matters stated above, and shall produce for inspection or audit such books, records, documents and tobacco products as required. 

Any retailer found in violation of the Act may be subject to:

1. An official warning
2. Tax assessment
3. Fines
4. Penalties
5. Seizure of tobacco
6. Suspension of licence
7. Revocation of licence

Administrative Penalties

The following schedule provides information on the administrative penalties that are applicable to retailers for violations under the Tobacco Tax Act:

Notice of Objection

A retailer that wishes to dispute the liability for the amount assessed against him/her, may file a Notice of Objection with the Commissioner setting out the reasons for the objection and all relevant facts.  The notice must be filed within 30 days after paying the tax or the date of the service or mailing of a notice of assessment, whichever is sooner.

Upon receipt of a Notice of Objection, the Commissioner shall within 60 days reconsider the assessment and vacate, confirm or vary the assessment or reassess, and he/she shall thereupon notify the retailer of his/her action by personal service or by ordinary or registered mail.

Notice of Appeal

If the retailer is dissatisfied with the decision of the Commissioner, they may, within 30 days after being notified of such decision, file a Notice of Appeal with the Minister of Finance and Treasury Board.  The Minister shall within 30 days after the receipt of a Notice of Appeal, fix a date to consider the appeal and shall give a notice of such hearing to the appellant and the Commissioner. Upon any such appeal, the Minister may affirm, vary or reverse the decision of the Commissioner and shall give a written notice of his/her decision to the appellant by personal service or by ordinary or registered mail.

Appeal to The Court of Queen’s Bench

If the appellant is dissatisfied with the decision of the Minister, they may, within 30 days after the date of service or mailing of the notice explaining the Minister’s decision, appeal from such decision to a judge of The Court of Queen’s Bench of New Brunswick.

All inquiries should be directed to:

Finance and Treasury Board
Revenue Administration Division
P.O. Box 3000
Fredericton, New Brunswick
E3B 5G5

Telephone: (800) 669-7070
Fax: (506) 457-7335
E-mail: [email protected]
Website: www.gnb.ca/finance

Legislation:

New Brunswick Acts and Regulations may be accessed on the Department of Justice and Consumer Affairs website (www.gnb.ca/justice) or copies can be purchased from the Queen’s Printer.