Assessment Review Board
Commission de révision de l’évaluation foncière
Region Number: 19
Municipality: City of Hamilton
Roll Number: 2518-303-390-60488-0000
Hearing Number: 422062
Application Number: 2633060
In the matter of Subsection 357.(1)(d.1) of the Municipal Act, S.O. 2001, c. 25, as amended, and in the matter of an application with respect to taxation year 2010 on premises known municipally as 89 Ryans Way.
BETWEEN: I. M.
Assessed Person/
Applicant
- and -
The City of Hamilton
Respondent
APPEARING: I. M. - for the Assessed Person/Applicant
V. Mitchell - for the Municipality
DECISION OF THE ASSESSMENT REVIEW BOARD delivered by:
I. Oliveira and A. LaRegina
This application came before the Assessment Review Board on July 4, 2011 in the City of Hamilton. Following the hearing the Board dismissed the application not being satisfied that the applicant was unable to pay taxes due to sickness or extreme poverty.
ISSUE
The issue before the Board for consideration was whether the applicant, pursuant to subsection 357.(1)(d.1) of the Municipal Act (Act), 2001, c. 25, as amended, should be granted a cancellation, reduction or refund of all or part of the taxes levied for the taxation year 2010 because the applicant was unable to pay taxes for 2010 due to sickness or extreme poverty.
DECISION
The application is dismissed. While the Board is satisfied that the applicant had sickness during 2010, the Board is not satisfied that the applicant was unable to pay 2010 taxes due to the sickness or extreme poverty.
REASONS FOR DECISION
Legislation
In making a decision in this matter, the Board is governed by subsections 357.(1)(d.1), 357.(2) and 357.(11) of the Act.
Subsection 357.(1)(d.1) of the Act states:
357.(1) Cancellation, reduction, refund of taxes. - Upon application to the treasurer of a local municipality made in accordance with this section, the local municipality may cancel, reduce or refund all or part of taxes levied on land in the year in respect of which the application is made if,
(d.1) the applicant is unable to pay taxes because of sickness or extreme poverty;
Subsection 357.(2) states:
357.(2) Application - An application may only be made by the owner of the land or by another person who,
(a) has an interest in the land as shown on the records of the appropriate land registry office and the sheriff’s office;
(b) is a tenant, occupant or other person in possession of the land; or
(c) is the spouse or same-sex partner of the owner or other person described in clause (a) or (b)
Subsection 357.(11) states:
357.(11) Delegation of power - The council may pass a by-law authorizing the Assessment Review Board to exercise the powers and functions of the council under subsections (1) and (5) with respect to applications made under subsection (1) and subsections (6), (7), (8), (9) and (10) do not apply to these applications.
The applicant applied to the City of Hamilton for a reduction, refund or cancellation of the 2010 property taxes under subsection 357.(1)(d.1) of Municipal Act. The City of Hamilton has delegated its authority to hear applications under subsection 357.(1)(d.1) of the Act to the Board.
All testimony was given under oath.
Applicant’s Submissions
The applicant is 51 years old and states that she suffers from Graves disease and radiation poisoning. She is unemployed and her income comes from spousal support and child tax credit benefits. She testified that because of her illness she is unable to work and has no other means of earning income.
Ms. M. presented into evidence a letter which is a consultation report from Dr. Z. P. dated November 25, 2008, the date of the consultation. This letter, in part, states:
…She has been suffering insomnia, weight loss of 30 pounds, diarrhea, palpitations, dizziness and amenorrhea…
Ms. M. is otherwise healthy. She takes no medication. She is using a herbal formula given to her by a kinesiologist which is meant to clean her of radiation poisoning although she gives no history of radiation poisoning…she pays for medications out of her pocket and was reluctant to pay for any new medications. She smokes 15 cigarettes per day…
…She appears somewhat dishevelled and appears suspicious. Her thyroid is one and a half times normal size. She has fine tremor, lid lag and wrist reflexes.
…she was very suspicious of the treatment I was offering including radioactive iodine because she believes she already has radiation poisoning…
Dr. A.K. L. an internist with a special interest in cardiology and endocrinology in a reporting letter following the applicants appointment in his clinic on February 15, 2011 states:
The patient was referred for an enlargement left mandibular lymph node. Past medical history for this patient is significant for hyperthyroidism. The patient was seen by me in July of 2010 with regard to thyrotoxicosis. The patient did not want to be treated. She is a smoker. There is no history of hypertension, diabetes…
The patient has had enlarged lymph node for the last two years…there is no history of fever, chills, or rigors. There is no history of night sweats, fatigue, or weight loss. The patient has had issues with dental caries and infection on the left side…
There is no history of chest pain or shortness of breath…review of systems was unremarkable.
Household Income and Expenses
The applicant receives income in the form of spousal and child support payments and monthly benefits from the child tax credit program.
The applicant gave evidence that the household income and expenses are as follows:
2010 applicant’s monthly income:
Spousal support
$2,000
Child tax credit
377
Monthly Income
$2,377
Monthly Expenses:
Mortgage payment
$374
Property taxes
289.42
Utilities (hydro)
125
(furnace fuel)
90
Telephone
80
House insurance
60
Car insurance
120
Gasoline
200
Medication
25
Food
600
Cable/Internet
100
Other (cigarettes)
180
Total monthly expenses
$2,243.42
$2,243.42
Net monthly income after expenses
$133.58
Ms. M. further stated that she has a credit card debt of approximately $23,000 for which she was paying $500 per month. However, she hasn’t made any payments since August of 2010.
The property is not solely owned by the applicant. The assessment records show that the property is owned by the applicant and L.R.B. With respect to the ownership of the subject property and in reply to the municipality’s questions, Ms. M. submitted a copy of an Order from the Superior Court of Justice (Family Court), which was she had previously provided to the City of Hamilton. The Order makes reference to the monthly support payments as well as the ownership interests in the subject property. The Order indicates that the applicant’s children have a 33.6% interest in the property and the applicant a 66.4% undivided interest.
Outstanding Taxes
The outstanding taxes for the 2010 tax year are in the arrears of $3,919.55, inclusive of interest and penalties. There are tax arrears for 2009 in the amount of $4,025.06 and together with the 2011 taxes assessed against the property in the amount of $3,612.19 the grand total of taxes owing to the City is $11,556.80.
The City’s Submissions
The City takes no position in this matter, although it is clear that from questions posed in cross-examination and the submissions of the City that the City does not support the application for a reduction, refund or cancellation of the taxes.
The City’s submissions are that the applicant purchased the subject property in 2004 for $233,000 and the principal amount outstanding on the registered charge (mortgage) is only $50,895.23.
Ms. Mitchell further submitted that the applicant has made no payment towards the outstanding taxes since February of 2009 and has made no effort to initiate a monthly payment plan or any other acceptable alternative to pay the outstanding taxes.
Board’s Analysis and Deliberations
In making a decision in this matter the Board must consider the legislature’s intent when subsection 357.(1)(d.1) was enacted. The Board’s view is that the intent of the legislature is to provide relief to taxpayers in a taxation year where either sickness or extreme poverty has prevented them from being able to pay their property taxes in part or in full. The Board does not think that the Legislature intended any property owner who is sick in a taxation year to be eligible for property tax relief. In the Board’s view, the sickness in a year must be such that the applicant’s income is interrupted by the sickness leading to an inability to pay taxes. The Act requires an application to be made for each year and the Board must consider the circumstances of the applicant for the year in which the tax relief is being sought.
There is no evidence before the Board that the applicant suffers from extreme poverty. She receives monthly support payments and for the year of 2010 she received the child tax credit benefit. The equity in the property is over $200,000. For the 2010 taxation year taxes are payable based on an assessment of $260,000. The January 1, 2008 assessed value of the property is $288,000.
The applicant’s financial information is sketchy. The Board has averaged out some of the monthly expenses and there was no breakdown provided of the principal and interest included in the monthly mortgage payment.
The Board is somewhat concerned that any person experiencing financial difficulties to the degree that they are seeking relief from taxes spends $200 per month for automobile fuel and $180 per month in cigarettes. The applicant’s demeanor leaves the Board with the impression that she is quite content to exist on her monthly spousal support payments and sees no need to actively look for employment. The medical evidence provide to the Board did not indicate that the applicant’s sickness makes it impossible for her to work.
The evidence is clear that the applicant is not the sole owner of the property for which she is seeking tax relief. No evidence was submitted to the Board as to the ability of the other owner(s) to contribute to the taxes for the property.
While the Board is satisfied that the applicant suffers from Graves disease the Board is not satisfied that this sickness prevented her from paying all or any of her taxes for 2010.
For the reasons provided above the application is denied.
“I. Oliveira”
I. Oliveira
Member
“A. LaRegina”
A. LaRegina
Member
/lp
DECISION RELEASED ON: November 7, 2011