The Ontario Assessment Act provides a chance to have the assessing authority reconsider the value it has assigned to your land before commencing an appeal with the Assessment Review Board. Section 39.1 of the Act sets out the request for reconsideration process. This is a process that any taxpayer can take advantage of, but subsection 40(3) makes the process a prerequisite for an appeal of properties in the residential, farm, or managed forest property classes.
A request for reconsideration must generally be made before March 31 of the tax year. So a 2020 request for reconsideration must be submitted before March 31, 2020. There are exceptions for reassessment years and omitted and supplementary assessments. The “request must set out the basis for the person’s request and all relevant facts.” MPAC must “consider the request and, for this purpose, may request further information from the person.” These provisions were recently considered by the Board in Nicoletti v Toronto (City).
In that case the representative of a taxpayer had filed a fairly generic request for reconsideration with MPAC before the filling deadline for the 2017 tax year. MPAC sent a letter back saying that it did not have enough information to reconsider the assessment and gave the taxpayer 30 days to provide better information. The taxpayer did not provide that information and MPAC proceeded to “close the file.” MPAC did not provide the results of its reconsideration as required by the Act.
The taxpayer did not appeal the 2017 assessment, nor did it appeal the 2018 tax year. It did appeal the assessment for the 2019 tax year and brought a motion at the hearing of that appeal arguing, among other things, that MPAC did not have the ability to limit its request for reconsideration and that the result of the 2019 appeal should apply to the 2017 and 2018 tax years as well.
The Board did not grant the motion. The problem for the taxpayer in Nicoletti is that it did not appeal the 2017 or 2018 tax years on time and the Board found that there was no authority to create those appeals based on the various arguments presented.
On the request for reconsideration issue, the Board found that MPAC’s statement that it could not consider the request, and the arbitrary 30 day period it set out, was a “reasonable position for MPAC to have taken as the Appellants’ 2017 RfR did not meet the statutory requirements for the RfR to be considered.” It may be reasonable for MPAC to request information and set a time for a response, but is it open to MPAC to refuse to reconsider the assessment when a request for reconsideration has been made?
It is our opinion that MPAC must still consider the assessment when a request for reconsideration has been made. The Act gives MPAC the ability to ask for more information, but the mandatory requirement that MPAC provide its response to the reconsideration request within 180 days is not removed when MPAC makes such a request. MPAC must still complete the request, even if it is of the opinion that it doesn’t have the information it needs. After all, the request is to reconsider the assessment that MPAC has attributed to a property. MPAC should be in a position to at a minimum explain its assessment.
But what is a taxpayer to do if MPAC doesn’t respond? There is no mechanism in the Act to review MPAC’s conduct of the request for reconsideration process. The oversight is provided in the appeal to the Board that comes out of that process, but the Board noted in 1763931 Ontario Limited v Municipal Property Assessment Corporation, Region 30 that the “request for reconsideration process explicitly excludes the Board.”
The Act is clear that if MPAC doesn’t respond to a taxpayer’s request in the required time, they can appeal to the Board. That is what should happen if MPAC deems a request for reconsideration to be inadequate.
The Act does require taxpayers to set out the basis of the reconsideration request and the relevant facts but is silent on what happens if that standard is not met. The Act also says that MPAC can ask for more information but is silent on what happens when that information is not provided.
The Act requires MPAC to mail the results of its reconsideration “180 days after the request is made.” While MPAC took the position that it would be unable to consider the request if further information was not provided by the Appellant, that does not mean that a request was not made. The request was made, even if it was deemed insufficient by MPAC. MPAC had 180 days to respond to that request and the Act is clear what happens if that response is not sent.
The Act sets out the window for appealing to the Board when a request for reconsideration has been made. Subsection 40(3.1) states that time starts to count either when you have “received a notice of reconsideration” or, if you have “not received a notice of reconsideration,” time starts when the “deadline by which it should have been mailed under the applicable subsection has passed.” So, if MPAC does not provide a response, an appeal can be filed with the Board 180 days after a request is made. That does not turn on whether MPAC considers the request to be sufficient.
The difficulty for the taxpayer in Nicoletti is that the Act also sets the last day to appeal if a request for reconsideration has been filed. Subsection 40(5) states that the last day to appeal is “90 days after the notice should have been mailed by” MPAC. Taxpayers must ensure that there is oversight of the process by marking their calendars for 180 days after they file a request for reconsideration and filing an appeal to the Board within 90 days of that time.
March 31 is quickly approaching. The Board has stated that appeals should be filed by the deadline, but that there may be some ability to file within 15 days of the Ontario Emergency Order being lifted.
Contact NextGenLaw LLP today if you want to challenge the assessed value of your property for the 2020 tax year.