Vacancy Rebate Verification Program

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1 DATE: April 26,2004 REPORT: Corp/Fin TITLE: Vacancy Rebate Verification Program C.A.O. WARD: All Wards FILE: ATTACHMENTS: PREPARED BY: John Morrison DEPARTMENT: Financial Services - Revenue CLEARANCE: Review Team: SMT: FSP: April 26, 2004 Council: RECOMMENDATIONS: That Council approve the use of a vacancy rebate verification service and authorize staff to proceed accordingly. EXECUTIVE SUMMARY: This report outlines the verification program for property tax rebates for vacant space in commercial and industrial properties. FINANCIAL IMPLICATIONS: The annual cost of contracting a vacancy rebate verification service has been approximately $3,900. There are no other budget implications associated with the recommendations contained herein. BACKGROUND: Starting with the 2001 taxation year, commercial and industrial properties are returned on the assessment roll and taxed each year as fully occupied regardless of whether there are vacant units in the building. Property tax relief for vacant commercial and industrial units is provided through rebates that are issued by the municipalities. Prior to 2001, vacant units were recognized as adjustments to assessed value. This rebate program is mandatory and governed by section 364 of the Municipal Act and Ontario Regulation 325/01. APPROVALS Director Date Other Date Legal Date Team Leader Date

2 Corp/Fin Vacancy Rebate Verification Program Page 2 Section 364 of the Municipal Act stipulates that a rebate program must provide tax rebates for the actual period of vacancy experienced over the course of a year. Ontario Regulation 325/01 establishes the program's parameters, defines the rebate formula, and sets out certain conditions for eligibility that must be met in order to qualify for the rebate. Highlights of the eligibility requirements, legislation related to the vacancy rebate program and the minimum information needs of the application process is found in Appendix A. IMPLEMENTATION SINCE 2001: The verification and eligibility process used by the City of Waterloo is detailed in Appendix B. In 2001 the Cities of Cambridge, Kitchener and Waterloo developed common application forms, communication packages and entered into discussions around appropriate protocols for reliable documentation. With regards to site inspections prior to 2001, MPAC conducted on regular basis property inspections. MPAC collected property information, rent rolls and income information and made the vacancy determination. The cost of this service was then included in the annual financial support paid by the Region of Waterloo. With the new rebate program it became apparent that the skills needed to conduct a site inspection and make an informed decision required expertise beyond the current Revenue Services staff complement. In order to achieve a high level of competence it was critical to engage, on a contract basis, the vacancy verification service of a qualified professional assessor. MPAC does continue to provide a vacancy verification service. However, the fee structure is based on the type of property and service agreed upon. For the verification of applications pertaining to "simple" commercial or industrial properties (ie: a neighbourhood plaza) a flat rate of $84.00 per application applies for up to three units and a flat rate of $21.00 for each additional vacant unit. For more complex applications an hourly rate of $84.00 would apply. Given MPAC`s fee structure and based on the volume and complexity of the applications, staff contracted the services of a former assessor for a flat fee of $50 per hour. The verification service includes a review of the data on the application, and/or supporting documentation; phone contact with the owner, tenant or adjoining tenant(s); inspection and measurement of the vacant area. Given the need for stringent verification protocols, staff recommends using a vacancy rebate verification service.

3 Corp/Fin Vacancy Rebate Verification Program Page 3 CONCLUSION: In order to confirm vacancy rebate entitlement, a stringent verification protocol must operate with a high level of competence and confidence. This report details the proposed verification mechanisms and processes that are used to ensure that applications for vacancy rebates meet the eligibility criteria set out under the Municipal Act, related regulations, and the City's rebate program. The report also acknowledges that the current staff complement does not have the expertise necessary to conduct site inspections. The recommendation is to contract for vacancy rebate verification services. APPENDIX A: ELIGIBLE PROPERTY UNDER SECTION 364 OF THE ACT a) (1) A building or structure on property that is classified in one of the commercial classes or industrial classes is prescribed to be an eligible property for the purposes of section 364 of the Act for a period of time if, (a) the period of time is at least 90 consecutive days; and (b) no portion of the building or structure was used at any time in the period of time. O. Reg. 325/01, s. 1 (1); O. Reg. 300/03, s. 2 (1). b) (2) A portion of a building on property that is classified in one of the commercial classes is prescribed to be an eligible property under section 364 of the Act for a period of time if the period of time is at least 90 consecutive days and throughout the period of time, (a) the portion of the building was not used and was clearly delineated or separated by physical barriers from the portion of the building that was used; and (b) the portion of the building, (i) was capable of being leased for immediate occupation, (ii) was capable of being leased but not for immediate occupation because it was in need of or undergoing repairs or renovations or was under construction, or (iii) was unfit for occupation. O. Reg. 325/01, s. 1 (2); O. Reg. 300/03, s. 2 (2). c) (3) A portion of a building on property that is classified in one of the industrial classes is prescribed to be an eligible property under section 364 of the Act for a period of time if, (a) the period of time is at least 90 consecutive days; and (b) throughout the period of time, the portion of the building was not used and was clearly delineated or separated by physical barriers from the portion of the building that was used. O. Reg. 325/01, s. 1 (3); O. Reg. 300/03, s. 2 (3) A building or a portion of a building will not be eligible for a rebate if it is used for commercial or industrial activity on a seasonal basis; or during the period of vacancy it was subject to a lease or sub-lease, the term of which had commenced; or during the vacancy it was included in a sub-class for vacant land.

4 Corp/Fin Vacancy Rebate Verification Program Page 4 THE AMOUNT OF THE REBATE: The Act provides for a rebate equal to 30% of the taxes applicable to the eligible vacant portions for a commercial property, and 35% for an industrial property. A municipality, other than a lower-tier municipality, may establish a single rebate percentage. The Region of Waterloo established that the rebate for a commercial and an industrial property is 35%. The Region of Waterloo and the School Boards share the cost of providing the vacancy rebate. The City of Waterloo is responsible for the entire cost of administering the program. THE APPLICATION PROCESS: To qualify for a rebate, property owners (or their authorized representatives) must submit an application to the municipality in which the property is located. Authorized representatives must have written authorization dated within the last year. Applications must include the following minimum information: - name of property owner (and name of owner's representative if the application is made by an authorized agent on behalf of the owner); - municipal address of the property, including number, street and municipality; - assessment roll number of the property; - dates of vacancy; - description of vacant portion (suite or unit number and floor number or location within the building) and; - size of vacant area in square feet. A municipality may also request further information and/or documentation as deemed necessary to substantiate an application for a rebate. A person who knowingly makes a false or deceptive statement in an application for a rebate is liable, upon conviction, to a fine of double the amount of the rebate that the person sought to obtain through their false or deceptive statement, but not less than $500. In addition, section 364 (22) allows that if, after issuing a vacancy rebate, a municipality determines that the rebate or a portion of the rebate has been in error, the municipality may notify the property owner of the overpayment and upon doing so the amount shall be deemed to be taxes for municipal and school purposes, and as such gets added to the taxpayer's tax account.

5 Corp/Fin Vacancy Rebate Verification Program Page 5 APPENDIX B: VERIFICATION PROCESS: Revenue Services staff established a verification process for vacancy rebate applications, in order to ensure due diligence is performed in confirming that documentation supplied by the applicants substantiates their entitlement to a rebate. The verification process consists of two stages: i) preliminary eligibility review ii) secondary verification/site inspections i) Preliminary Eligibility Review: It is both prudent and necessary to ensure that all applications for vacancy rebates are closely examined to confirm entitlement. To substantiate a claim for a rebate of property taxes, the following conditions must be met: 1. A complete and signed application form (provided by the City) must be filed with the City. 2. The application must be supported by the following documents as proof: a) a copy of an expired lease and a current lease, establishing by default, the vacant period, provided that it discloses the square footage of the subject property; and, b) a sketch/floor plan of the building and the square footage of the area(s), and, c) documentation showing the last day the tenant occupied the space such as a letter of intent to vacate, a notice of eviction, a court order, and, d) evidence that the property was advertised for rent/lease such as a copy of a real estate agent's listing agreement showing when the unit was available for rent and a copy of the subsequent lease provided that it discloses the square footage of the subject property; or, a copy of newspaper/internet advertisements corresponding to the period that a vacant unit was available for lease, provided that it discloses the square footage of the subject property. If the above documentation is not available, the owner may be required to submit a notarized statement or affidavit. Once in receipt of a rebate application, Revenue Services staff will: a) Confirm that all sections of the application are completed with accurate information. (e.g. assessment roll number, property address, etc) b) Confirm that qualifying criteria are met.

6 Corp/Fin Vacancy Rebate Verification Program Page 6 c) Review the documentation submitted as proof of vacancy (including a notarized statement, as may be necessary) to ensure that the documentation supplied supports the vacancy rebate application. Provided that all of these conditions are successfully met, an application will be conditionally accepted. An application should not pre-date the period of vacancy claimed. Applications will then be forwarded to the Municipal Property Assessment Corporation (MPAC) to determine the portion of the property's Current Value Assessment (CVA) attributable to the vacant space. Once this information is returned to the City by MPAC, Revenue Services staff calculates the rebate amount. Notwithstanding the preliminary eligibility review process set out above, provisions are made to allow for an alternative method of substantiating a claim when, because of unique circumstances, the verification protocol is impracticable (e.g. an applicant owns a vacant corner variety store and does not keep records in the same manner that a large scale property owner would). A notarized statement or affidavit declaring the exact period of the vacancy, and explaining why the usual and customary proofs of vacancy are unavailable may support an application. The notarized statement must contain the name, address, and telephone number of the individual notarizing the document. ii) Secondary Verification/Site Inspections: Once the amount of the rebate has been determined, and prior to the issuance of the rebate, all applications, regardless of the amount of the possible rebate, may be subject to audit in the secondary verification process. Audits may involve a request to provide further supporting documentation or site inspections to confirm details of the application. Site inspections will be conducted on a random basis. Properties with rebate amounts greater than $500 will be targeted for site inspection/verification. In addition, applications that state that vacant units are unfit for occupation, or are in need of significant renovations such that the space is not immediately available for lease, or are permanently vacant, or have not provided all the required documentation will be closely reviewed and may require a site visit. Our rationale is that is incumbent upon the taxpayer/landlord to be active and intentional in making their property available for market, and that a potential rebate ought not to be a disincentive to doing so. Audits will be designed to establish that vacant units are actually eligible to receive the rebate, and/or that the vacancy periods and square footage reported on the application form are substantiated. It is anticipated that the overall cost of the verification program will be such that each individual application cannot be audited or reviewed in the same level of detail. NOTIFICATION: Having determined that an application for a vacancy rebate is valid and substantiated by appropriate documentation and/or secondary verification, the necessary paperwork to issue a

7 Corp/Fin Vacancy Rebate Verification Program Page 7 rebate will be prepared immediately. This commitment is intended both as a customer service initiative and in accordance with legislation. Upon its determination of the amount of the rebate, the municipality will advise the applicant of the amount of the rebate. The applicant has 120 days in which to appeal the amount of the rebate to the Assessment Review Board (ARB) if they are not in agreement. If ownership has changed or will change on the property prior to the rebate being processed, the City will require a letter from the current property owner stating that they are aware of the pending rebate and will make arrangements with the prior owner in regards to the rebate. Vacancy rebates are credited to the property that is entitled to the rebate. It is up to the parties involved to make arrangements for the refund of the rebate. With respect to the payment of interest on a final application, if an application is received by the last day of February of the year immediately following the taxation year and the municipality fails to pay or credit the amount of rebate to which the property is entitled by June 30 th of that following year or 120 days after the day the owner provides the municipality with additional information, interest shall be paid. Interest is payable under an interim application if the application is received by July 31 st of the taxation year to which the rebate relates and the municipality fails to pay or credit the amount of the entitled rebate by November 30 th or 120 days after the day the owner provides the municipality with additional information. The municipality shall pay interest at the same rate of interest that applies under subsection (4) of the Education Act.

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