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T-1206-74
Crown Trust Company as Trustee of Suburban Realty Trust (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Addy J.—Montreal, April 26; Ottawa, May 2, 1977.
Income tax — Allocation of purchase price between depre- ciable and non-depreciable portions of real estate — Munic ipal valuation key factor — Contradictory assessments — Income Tax Act, R.S.C. 1952, c. 148, s. 20(6)(g) — Charter of the City of Montreal, 1960, S.Q. 1959-60, c. 102.
In December 1969, the plaintiff sold revenue-producing apartment buildings to a third party. For that taxation year, the Minister assessed the same asset, the lands or undepreciable portion of the real estate, at a much lower value for the plaintiff than for the purchaser. The plaintiff appealed the assessment. A special order made under section 174(3)(b) of the Income Tax Act ordered that the purchasers be added as a party, and that the trial determine the portion of the aggregate purchase price to be allocated to the buildings and the land.
Held, the appeal is allowed. Pursuant to section 20(6)(g), in order to determine what part of the total amount can be "reasonably regarded" as being consideration for the disposi tion of the lands as opposed to the buildings, the court must consider the whole; each of the two elements constituting the whole must necessarily be subject to whatever advantages or disadvantages actually flow from the existence, nature, site, use and condition of the other as well as whatever other factors might affect the desirability, marketability and investment value of the other. Whether the Minister has made, for the same taxation year regarding the same asset, two absolutely contradictory and mutually exclusive assessments arising out of the same transaction, it would be ludicrous for the Court to allow the Minister, in such a case, to enjoy the benefit of the burden of proof which he normally enjoys in assessment appeal cases, since the Minister is, in the same action, seeking to have the Court confirm two contradictory statements.
The Turnbull Real Estate Company v. The King, Corkery v. The King, DeBury v. The King (1903) 33 S.C.R. 677, followed.
INCOME tax appeal. COUNSEL:
Richard W. Pound for plaintiff.
Roger Roy and Marc Boivin for defendant.
Louis Bass (himself) for joined parties.
SOLICITORS:
Stikeman, Elliott, Tamaki, Mercier & Robb, Montreal, for plaintiff.
Deputy Attorney General of Canada for defendant.
Schlesinger & Schlesinger, Montreal, for joined parties.
The following are the reasons for judgment rendered in English by
ADDY J.: This action, as originally constituted, consisted of an appeal by the plaintiff of an assess ment for income tax purposes for the taxation year 1969, of revenue-producing apartment buildings in Montreal sold by the plaintiff on the 30th of December 1969 to Louis Bass, Bennie Bass and Moe Bass (hereinafter referred to as "the Bass brothers").
By re-assessment notices, issued at various inter vals, the Minister assessed the non-depreciable portions of the real estate, that is the lands, in so far as the plaintiff was concerned at an amount of $169,000 and for the same year in so far as the Bass brothers are concerned, at an amount of $350,089.
Before trial, by special order pursuant to section 174(3)(b) of the Income Tax Act, the Bass broth ers were joined in the action as parties and it was further ordered that the question to be determined at trial would be the following:
For the purpose of paragraph 20(6)(g) of the Act, what portion of the aggregate price of certain land, buildings and equipment located on Grenet Street in the City of St. Laurent in the amount of $1,335,000, sold on December 30, 1969, by the Plaintiff to the Joined Parties can reasonably be regarded as attributable to the land and buildings respectively?
The price paid on the 30th of December 1969 for the lands, buildings and equipment was $1,335,000. It is not disputed that the value of the equipment was $18,000. The consideration for the lands and buildings was therefore $1,317,000.
Since no one has attempted to establish that the purchase price of $1,317,000 paid on the 30th of December 1969, as aforesaid, did not represent the fair market price at that time of both lands and buildings as a whole, and since the transaction was an arm's length one, and both the vendor and the
purchasers were obviously astute and well- informed parties and, finally, since the vendor was under no particular pressure to sell and the pur chasers had no particular need for that specific property, I find no difficulty in coming to the conclusion that the price paid represented the actual or real value of both the lands and build ings. In other words, the purchasers paid neither too much nor too little for either the lands or the buildings when they purchased the whole.
The expert called by the plaintiff gave no con sideration whatsoever to the value of the lands as they existed in 1969, that is, with the apartment buildings actually erected on them; on the con trary, in accordance with his instructions, he valued the lands as if they were completely vacant and made no inspection or valuation of the build ings. This was a completely improper approach and is of little assistance to the Court; pursuant to section 20(6)(g), in order to determine what part of the total amount can be "reasonably regarded" as being consideration for the disposition of the lands as opposed to the buildings, the Court must consider the whole; each of the two elements con stituting the whole must necessarily be subject to whatever advantages or disadvantages actually flow from the existence, nature, site, use and con dition of the other as well as whatever other factors might affect the desirability, marketability and investment value of the other.
No other expert real estate valuation evidence whatsoever was offered and the Court is left only with the valuations for municipal assessment pur poses. The Court is permitted to use municipal assessments in arriving at a valuation of property. (See The Turnbull Real Estate Company v. The King; Corkery v. The King; DeBury v. The King'.)
Section 818(c) of the Charter of the City of Montreal, 1960 2 , which governs assessments within the City of Montreal, requires that the assessment rolls reflect the "actual value of the immovables and, separately, that of the lots and that of the buildings thereon erected". It appears therefore that assessors in Montreal are obliged by law to assess both lands and buildings in accord
' (1903) 33 S.C.R. 677. 2 S.Q. 1959-60, c. 102.
ance with their actual value. A similar provision exists in the Cities and Towns Act 3 which governs the remainder of the Province Of Quebec. There was some evidence that, as a result of a study made of some areas in Montreal, it was found that in 1976, realty there had been assessed at that time at about 90% of actual value. There is no evidence as to what the situation was in 1969. In any event, if the assessors were not in 1969 assess ing strictly in accordance with actual value, there is still no reason to conclude or even suspect that they were not applying the same variation from either current market price or actual value to both lands and buildings, whatever that variation might be.
In view of there being no evidence to the con trary, I find that, on the balance of probabilities, the proportion which the municipal valuation of the land for the year 1969-70 bears to that of the whole is the correct one. The municipal valuation or assessment for taxation year 1969-70 of $217,- 050 for the lands and $1,313,500 for the buildings, establishes a proportion of 14.18% of the value as being attributable to the lands.
On applying that proportion to the value of the whole, as determined by the above-mentioned sale price of $1,317,000 paid for the lands and build ings, one arrives at the amount of $186,750. I find that amount to be the portion of the aggregate price of the lands, buildings and equipment con cerned in this action which can reasonably be regarded as attributable to the lands and the bal ance, namely $1,130,250, as attributable to the buildings.
The assessments of the plaintiff and of the Bass brothers for the taxation year 1969 will therefore be referred back to the Minister for re-assessment in accordance with these figures.
Before dealing with the question of costs, I would like to add that where, as in the present case, the Minister has made for the same taxation year regarding the same asset, two absolutely con tradictory and mutually exclusive assessments aris ing out of the same transaction, it would be ludi crous for the Court to allow the Minister, in such a case, to enjoy the benefit of the burden of proof which he normally enjoys in assessment appeal
3 R.S.Q. 1964, c. 193, s. 485(1).
cases, since the Minister is, in the same action, seeking to have the Court confirm two contradicto ry statements.
Counsel for the plaintiff, at trial, requested costs on the solicitor-and-client basis in any event of the cause and the question of costs was argued before me.
Although there appears to be no legal bar to the Minister assessing two different amounts for the same asset in the same taxation year when the value to be determined arises out of the same transaction, I feel that this custom is highly improper and fundamentally unfair and constitutes the kind of conduct which is most likely to bring the taxing authority into disrepute.
As previously stated, the servants of the defend ant, in the case at bar, valued the lands at the time of sale at $169,000 in so far as the plaintiff was concerned. The plaintiff contested that assessment, claiming in its statement of claim that the lands were worth $350,089. The defendant's assessors, while still maintaining the valuation of $169,000 against the plaintiff who was the vendor, then deliberately used the very figure alleged by the plaintiff of $350,089 and issued a supplementary assessment in that amount against the purchasers, the Bass brothers. The Minister confirmed this last-mentioned assessment.
The defendant then made a motion to have the Bass brothers joined and subsequently sat back quite confidently allowing the two sets of taxpay ers to fight it out among themselves and have the Court decide who should pay the piper.
Assessors of the Department of National Reve nue in issuing assessments owe a duty to the public in general and to the taxpayers concerned by the assessment in particular, to do so in a bona fide and conscientious manner. The provisions of the Income Tax Aci are not intended to allow them to merely issue figures indiscriminately nor the Min ister to subsequently confirm those figures with obvious disregard to the value of the asset and then oblige taxpayers to resort to the courts to do what they should have done in the first place in accord ance with their statutory duty, namely, to make an honest attempt to determine what a reasonable value really is.
For the above reasons, I am allowing both the plaintiff and the Bass brothers their costs through out on a solicitor-and-client basis, except that the fees of the witnesses Mr. Bigras and Mr. Attes shall be taxed on a party-and-party basis and that of the aforesaid witness Mr. Attes, shall be taxed as an ordinary witness and not as an expert since he was not allowed to testify as such at the trial.
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