Premier Operating Corporation v. Municipal Property Assessment Corporation, 2018 CanLII 89429

Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: September 18, 2018

FILE NO.: WR 154844

Assessed Person(s): Premier Operating Corporation

Appellant(s): Premier Operating Corporation

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 23

Respondent(s): Township of Thames Centre

Property Location(s): 2551 Wilton Grove Road

Municipality(ies): Township of Thames Centre

Roll Number(s): 3926-000-055-16400-0000

Appeal Number(s): 3274303

Taxation Year(s): 2016

Hearing Event No.: 702077

Legislative Authority: Section 357.(8) of the Municipal Act, 2001, S.O. 2001, c. 25, as amended

Heard: August 15, 2018 by telephone conference call

APPEARANCES:

Parties

Counsel⁺/Representative

Premier Operating Corporation

Chaney Morkill

MPAC

No one appeared

Township of Thames Centre

Diane Gallinger

DECISION OF THE BOARD DELIVERED BY MARCELLE BOURASSA

INTRODUCTION

1The Owner operates as a drive-in movie theatre at 2551 Wilton Grove Road (the “Subject Property’) for approximately 8 months of the year. The drive-in is closed down each year from December to April.

2Chaney Morkill, the Owner’s representative, filed an application with the Township of Thames Centre (the “Township”) on February 27, 2017 for the cancellation, reduction or refund of taxes levied on the Subject Property in the 2016 taxation year under s. 357(1)(b) of the Municipal Act, 2001 S.O. 2001, Chapter 25 (the “Municipal Act”) for the period of January 1 to March 25, 2016, when the drive-in was closed. The Township did not make a decision on the application and the Owner filed an appeal with the Assessment Review Board (“Board”) on October 20, 2017, pursuant to s. 357.(8) of the Municipal Act.

3Mr. Morkill takes the position that the Owner is entitled to receive a tax refund for the period of January 1 to March 25, 2016, as the Subject Property, as unimproved land, reverted to vacant land. The amount of the refund together with details of the calculation of the refund was provided. The amount of the refund being requested is $803.30.

4Diane Gallinger represented the Township. She is satisfied that no commercial use was carried on at the Subject Property during the period of January 1 to March 25, 2016. She has no issues with respect to the amount of the refund or the details of the calculation.

ISSUE

5The Board has to determine whether the Owner is entitled to a refund of taxes under s. 357(1)(b) of the Municipal Act.

DECISION

6The Board finds that the Owner is entitled to receive a tax refund in the amount of $803.30 for the period of January 1 to March 25, 2016.

REASONS FOR DECISION

The Legislation

7Section 357(1)(b) of the Municipal Act provides:

Cancellation, reduction, refund of taxes

357 (1) 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,

(b) the land has become vacant land or excess land during the year or during the preceding year after the return of the assessment roll for the preceding year;

8Section 357.(8) of the Municipal Act provides:

Where no decision

(8) If council fails to make its decision by September 30 of the year following the year in respect of which the application is made, an applicant may appeal to the Assessment Review Board by October 21 of the year by filing a notice of appeal with the registrar of the board and the appeal shall be a new hearing.

9Section 357.(10) of the Municipal Act provides:

Decision

(10) The Assessment Review Board shall hear the appeal and may make any decision that council could have made.

Analysis and Findings

Owner’s Evidence and Submissions

10Mr. Morkill states that the Subject Property operates as a drive-in movie theatre for approximately 8 months of the year. The drive-in is closed down each year from December to April.

11Mr. Morkill states that in this instance, the drive-in closed down in December 2015 and re-opened on March 26, 2016. He added that no commercial use whatsoever was carried out on the Subject Property during this “off-season.” He confirmed that it was not being used as lot to park vehicles for car dealers.

12Given its seasonal use as a drive-in, it his position that the Subject Property reverted to vacant land in the off-season and that the Owner is entitled to receive a refund of $803.30 for the period of January 1 to March 25, 2016 or a period of 85 days.

13Mr. Morkill provided the following calculation of the refund. He noted that 2016 was a leap year:

Reversion to vacant land for the period of January 1 to March 25, 2016 (85 days)

Current Value Assessment for the 2016 taxation year (2012 CVA): $490,000

2016 CT Rate = 0.023529

2016 CX Rate = 0.01647

Difference = 0.007059

Refund: 0.007059 % X $490,000 X 85/366 - $803.30

Township’s Evidence and Submissions

14Ms. Gallinger was satisfied that no commercial use was carried on at the Subject Property during the period of January 1 to March 25, 2016. She has no issues with respect to the amount of the refund or the details of the calculation.

Analysis

15Sections 357.(8) and (10) of the Municipal Act provide authority for the Board on appeal to cancel, reduce or refund all or part of taxes levied on land in the year in respect of which the application is made if the land “has become vacant land … during the year or during the preceding year after the return of the assessment roll for the preceding year,” provided an appeal is made by the taxpayer within the prescribed time period.

16There was no issue with respect to the timing of the filing of an appeal with the Board.

17In order to cancel, reduce or refund all or part of the taxes levied on the land, the land must have become vacant land during the year or during the preceding year after the return of the assessment roll for the preceding year.

18Mr. Morkill states that the drive-in closed down in December 2015 and re-opened on March 26, 2016. He added that no commercial use whatsoever was carried out on the Subject Property during the “off-season” during the period of January 1 to March 25, 2016. In response to Ms. Gaillinger’s question, he confirmed that it was not being used as lot to park vehicles for car dealers.

19Mr. Morkill asserts that the Subject Property reverted to vacant land in the off-season.

20There was consensus between the parties that the Subject Property was not being used. Therefore, the Board finds that it became vacant land during the period being claimed of January 1 to March 25, 2016, a period of 85 days.

21The Board finds that there is consensus between the parties as to the calculation and the amount of the refund.

22Therefore, the Board allows the appeal and finds that the Owner is entitled to receive a tax refund in the amount of $803.30 for the period of January 1 to March 25, 2016.