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Reference: 2004TCC466
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Date: 20040706
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File: 2003-4112(GST)I
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BETWEEN:
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9103‑9438 QUÉBEC INC.,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
Angers J.
[1] This
is an appeal concerning an assessment issued on January 31, 2003, and made
under subsection 191(3) of the Excise Tax Act (the “Act”). The
assessment, which bears number 144251659RT, is for the period from May 1 to
July 31, 2002.
[2] The
appellant, 9103‑9438 Québec Inc. (“9103”), purchased a building
located at 272, rue du Séminaire in the City of Saguenay on December 4,
2001, for $125,000. The building, which was formerly a school, has three floors
and a basement. Two of the floors were substantially renovated to create
accommodations. The renovated part includes six units of four and a half rooms
and two units of two and a half rooms.
[3] The
work was done by Construction Richard et Fils Inc., a corporation related to
9013. It was substantially completed at the beginning of the summer of 2002,
and the first lease took place on July 1, 2002.
[4] As
this was an old building, 9103 received a grant of $100,000 to cover part
of the cost of renovating the building as part of the Programme de
revitalisation des vieux quartiers funded by the City of Saguenay and the Société
d'habitation du Québec. The grant was used for what the experts described
as standardization, which means bringing the building up to current
construction standards, owing to the building’s age.
[5] The
parties did not dispute that 9103’s activities ensure that, pursuant to
subsection 191(3), it supplied itself with a multiple unit residential complex and at this time, July 1, 2002, would therefore
have to self-assess based on the fair market value of the complex. For these
reasons, hereinafter I am setting out subsection 191(3) of the Act:
191(3) For the purposes of this Part,
where:
a) the construction or substantial
renovation of a multiple unit residential complex is substantially completed,
b)
the
builder of the complex
(i)
gives, to a
particular person who is not a purchaser under an agreement of purchase and
sale of the complex, possession of any residential unit in the complex under a
lease, licence or similar arrangement entered into for the purpose of the
occupancy of the unit by an individual as a place of residence,
(i.1) gives possession of any
residential unit in the complex to a particular person under an agreement for
(A)
building or
part thereof forming part of the complex, and,
(B)
the supply
by way of lease of the land forming part of the complex or the supply of such a
lease by way of assignment, or
(ii) where the builder is an
individual, occupies any residential unit in the complex as a place of
residence, and,
c) the builder, the particular
person or an individual who is a tenant or licensee of the particular person is
the first individual to occupy a residential unit in the complex as a place of
residence after substantial completion of the construction or renovation,
the builder shall be deemed
d) to have made and received, at
the later of the time the construction or substantial renovation is
substantially completed and the time possession of the unit is so given to the
particular person or the unit is so occupied by the builder, a taxable supply
by way of sale of the complex, and
e) to have paid as a recipient and
to have collected as a supplier, at the later of those times, tax in respect of
the supply calculated on the fair market value of the complex at the later of
those times.
[6] Therefore,
the issue is to determine the fair market value of the building on July 1,
2002. The complex was built in 1912 and was used as a school until it was
purchased by 9103. It has an area of 3,444 sq. ft. per floor and is built
on 16,925 sq. ft. of land. The building is located in an old sector of the
city of Chicoutimi and receives all of the services and benefits of a neighbourhood
with good services.
[7] Each
party had a chartered appraiser testify. The appellant’s appraiser,
Mr. Pierre Doré, prepared two valuations. The first had been
completed before the renovation work was carried out. For that purpose, he had
used the estimates of the expected renovation costs. The valuation had been
done to allow 9103 to apply for financing to financial institutions. The second
valuation had been done to respond to the instant case, and since the valuation
had been done after the renovations, it had been possible to use more concrete
figures.
[8] Mr. Doré
has been a chartered appraiser since 1987. He was a partner in a consulting
appraisal firm in the Saguenay region until 2004. He is now a municipal
appraiser for the City of Saguenay. 9103 engaged his services to generate the
first report to support the financing application made to renovate two floors
and convert them into housing units, as described above. To do this, Mr. Doré
used the construction plan and the expected cost of the construction. He
decided on a fair market value of $465,000 for the building using three
recognized property valuation approaches, namely the cost, direct comparison,
and income approaches. These approaches produced valuations of $489,000,
$466,900, and $462,000 respectively.
[9] His
second report (Exhibit A‑1) had been prepared for the purposes of
this case and the issue to be decided. Therefore, the fair market value had
been established on July 1, 2002, using data that was much more concrete owing
to the fact that the renovations had been completed and their cost had been
determined. The fair market value of the building had been valuated at that
time at $425,000; the author of the valuation had used the same three
recognized approaches to obtain this amount. The approaches had produced the
following results: a fair market value of $429,000 based on the cost
approach, $425,500 based on the direct comparison approach, and
$410,000 based on the income approach. According to Mr. Doré, it is his
duty to take these three recognized valuation approaches into consideration so
that he can issue an opinion on a building’s fair market value. His report was
well documented and included all of the relevant points. Some of the relevant
factors it contained included the fact that the municipal valuation at the time
of the purchase was $246,500, whereas the purchase price was only $125,000.
[10] In his testimony, Mr. Doré pointed out some specific details
about each of the approaches he used. It is worthwhile repeating the conclusion
of his report, which is found on pages 54, 55, and 56:
[TRANSLATION]
CORRELATION AND FINAL
SALE
Correlation is the final stage in
the valuation process, and it consists of checking the indications provided by
each of the valuation approaches in order to minimize any gaps, where
applicable.
Summary of the results according to
the various valuation approaches:
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COST
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$429,000
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DIRECT COMPARISON
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$425,500
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INCOME
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$410,000
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The depreciated replacement
cost approach, which is a means of indirect proof, is used when it
is impossible to use the direct comparison or income approaches to measure the
value of a building.
The use of this approach is based
on some subjective information, such as depreciation, that increases the risk
of error as well as on a complexity of adjustments that affect the final answer
of this approach.
For these reasons, we are of the
opinion that the market value obtained by this approach will need to
corroborate with the other two valuation approaches.
The direct comparison
approach is an approach that essentially seeks to predict a property’s most likely
sales price by comparing it with another property of the same type.
In addition to being a means of
direct proof, this approach remains a tool that is used a great deal by buyers
and sellers since it reflects their own conduct in the market.
In this case, it allowed us to
analyze some indications of the activity considering the type of property to be
valuated and the use of the transactions analyzed. In the analysis table, we
note that there is a deficiency in the representative market for a property
like the property to be valuated; however, the comparables selected make these
conclusions reliable.
The results obtained are
representative of the market value of the subject and they corroborate with the
other valuation approaches.
The income approach consists of
capitalizing the standardized annual net income of a building at the
capitalization rate from the market to indicate the building’s market value.
It stands to reason that a building
that generates income must be analyzed based on its income. This approach will
take into account the building’s profitability and will capitalize the net
income using a rate from the market.
We also analyzed the building in
this manner, choosing the income capitalization approach, that is, the monetary
flow approach (Elwood).
Owing to the type of property, we
believe the value obtained using the income approach is the best indicator of
its market value. However, the value obtained using the direct comparison
approach is also a good indicator of the market value considering that this
approach is a means of direct proof.
CERTIFICATION
We hereby certify that
we have visited and
inspected the property under review and considered all of the relevant factors
that may affect the value of this property;
we have no current or
future interest in the property under review and declare that the amount of our
fees is in no way connected to the estimated values;
the data gathered
during the investigation remains subject to the restrictive conditions
contained in this report;
we have acted to the
best of our knowledge and beliefs; and
we hereby conclude a
definitive market value as of July 2002 of
$425,000
The proportion of
the market value attributable to the commercial part is estimated at 35%,
namely the central tendency obtained from the area used (37.5%), the commercial
part vs. the total area, and the source of rental income (32.3%) from the
commercial part vs. the total income.
[11] The information provided by Mr. Doré included comments that I
find relevant to this case, such as the fact that, contrary to construction,
when renovating, there are often unexpected situations, and the cost of
demolition must be considered before the cost of reconstruction. With the
income approach, some expenses that must be incurred when renovating will not
result in increasing the income. In this case, the standardization of the
building, which the grant was used to pay for, will have no impact on the income.
Mr. Doré emphasized that the fair market value is a broader concept than
the simple concept of cost in terms of renovating an old building. In this
case, he also referred to the large common areas and the two staircases at both
ends of the building to partially justify some functional obsolescence in his
cost approach.
[12] According to Mr. Doré, the income approach is the most important
approach for the building in question. It is an old building, and it should be
taken into consideration that some repairs will need to be done without however
increasing the income. The commercial and residential nature of the building
must also be taken into account when using the direct comparison and income
approaches.
[13] The actual renovation costs are approximately $366,000.
Ms. Nadia Potvin testified that this entire amount had not been used
just to redo the two floors in question; part of the money had been used for
the commercial part of the building for work related to the electricity,
plumbing, staircase, ventilation system (which, according to her, had alone
cost $50,000), mechanics, and demolition costs.
[14] The respondent had Mr. Gilles Vézina testify as an expert in
property valuation; he has 23 years of experience in this area. He is employed
by the Minister of Revenue of the Government of Quebec, and he prepares these
types of valuations. He maintained that, when determining the fair market value
of real property, the purpose and the goal are extremely important. According
to Mr. Vézina, the best value must be sought within the context of a given
act. Therefore, his valuation in this case was carried out with an aim to
determine the fair market value for purposes of the goods and services tax. The
Act deems that the builder sold and repurchased the building at its fair market
value. Since it is a multi-occupancy building, he prepared his valuation so
that the supply to be taxed would be separate and not incidental in any way to
the other use.
[15] Therefore, he did his calculation of the fair market value using the
actual renovation cost for all eight housing units without the contributory
value of the land and the existing parts of the old building such as the
foundations, the outside walls, the structure, and the roof. He then considered
the contributory value of the land and the existing building to be 20% of the
total cost of the housing unit renovations. I will repeat his calculations and
his conclusion here.
[TRANSLATION]
Calculation
of the fair market value
The actual renovation cost for all
eight (8) housing units is $366,039.25 without the contributory value of the
land and the existing parts of the old building such as the foundations, the
outside walls, the structure, and the roof.
In calculating the FMV, the
contributory value of both parts, the land and the existing building, must be
considered. We estimate this contributory value to be at 20% of the total cost
of renovating the housing units.
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– Actual construction costs for
the housing units
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$366,039.25
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– Contributory value for the
housing part, the land, and the existing construction ($366,039.25 x 20%)
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$73,207.85
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$439,247.10
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– Developer’s profits: 4%
($439,247.10 x .04)
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$17,569.88
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$456,816.98
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Value rounded off at
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$456,800
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Economic or income approach
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Potential gross income
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6 units at $690/month =
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$4,140
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2 units at $300/month =
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$600
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$4,740 x 12 = $56,880
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The potential gross income
multiplier is estimated at 8.0 since the units are leased by a public body.
The lease is long term for all of the units, and the losses for non-lease and
bad debts are virtually nil.
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Indicator of value:
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$56,880 x 8.0 = $455,040
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Value rounded off at $455,000
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Conclusion
In light of these results, I am of
the opinion that the fair market value of the part converted into rental
housing units is $456,800. This amount corresponds to the amount that would
have been paid by a person who had engaged the services of an arm’s length
builder to purchase this residential building once completed.
[16] He used the actual construction cost of the units based on the
information obtained from the appellant’s representative. The established fair
market value includes the goods and services tax (GST) and the Quebec sales
tax.
[17] In his second report, he made some adjustments to some of the fees
associated with the part considered to be unrenovated and adjusted the value to
$460,200 without changing his previous conclusion regarding the fair market
value.
[18] He also established the reproduction cost at $467,800 by adding half
of the $100,000 grant as a surplus cost owing to the preservation of the
external architecture and the requirements of construction standards.
[19] Mr. Vézina also established a fair market value based on the
income approach. He obtained values of $446,698 or $454,576, depending on
whether he used the actual rent for the building or the economic rent. In the
calculation based on the actual income, Mr. Vézina added half of the
$100,000 grant and used a 7.25% mortgage rate and a 7.5% rate of return on
the funds. The second amount was obtained using economic rent based on APCHQ
data published in the Québec Habitation journal in November and December 2001.
This economic rent was higher than the building’s actual rent. The $100,000
grant did not seem to have been taken into consideration when determining the
building’s fair market value using the economic rent approach. Lastly,
Mr. Vézina deemed that the direct comparison approach was not appropriate
for determining the building’s fair market value.
[20] Therefore, the two experts used different approaches in the sense that
the appellant’s expert took into account the three recognized approaches by
giving each of them respectively the weight they deserved to obtain the fair
market value of $425,000, including taxes. From that amount he deducted 35%,
the proportion attributable to the commercial part of the building, in order to
establish the value of the supply for the purposes of calculating the GST. The
respondent’s expert used only the cost approach based on the actual cost of the
renovations plus a percentage of the contributory value of the building and a
4% profit for the entrepreneur in order to establish a fair market value of
$456,800, including taxes. Based on his conclusion, this fair market value is the
value of the part converted into rental housing units and it establishes the
value of the supply for the purposes of calculating the GST. The difficulty
with these two approaches is that the value determined by the respondent’s
expert for the conversion of the two floors into housing units is $31,800
higher in relation to the fair market value of the entire building according to
the appellant’s expert.
[21] Now if I compare the valuations of the two experts using only the cost
approach alone, the appellant and the respondent have suggested a fair market
value of $429,000 and $467,800 respectively. Essentially, the
difference between the two valuations is that the respondent’s expert included
half of the grant in his calculations. In my opinion, although the grant
allowed the appellant to make renovations at a lower price, its influence on
the market value of buildings like this is minimal based on the fact that,
without these types of grants, it would be impossible to make such projects
profitable and enable these housing units to be leased at a competitive rate.
In fact, it would be nearly impossible to consider renovating these old
buildings without the possibility of receiving these types of grants.
[22] The explanatory notes concerning Bill C‑25 published by
Canada’s Minister of Finance regarding subsection 191(3) read as follows:
Subsections
191(3) and (4) provide the applicable self-supply rules in the case of a
multiple unit residential complex such as an apartment building and an addition
to such a complex, respectively [...] The builder is required to
remit GST/HST on the fair market value of the complex or addition.
[23] The definitions of the terms “fair market value” and “substantial
renovation” in subsection 123(1) of the Act are as follows:
“fair market value” of property or a service
supplied to a person means the fair market value of the property or service
without reference to any tax excluded by section 154 from the consideration for
the supply.
“substantial renovation” of a
residential complex means the renovation or alteration of a building to such an
extent that all or substantially all of the building that existed immediately
before the renovation or alteration was begun, other than the foundation,
external walls, interior supporting walls, floors, roof and staircases, has
been removed or replaced where, after completion of the renovation or
alteration, the building is, or forms part of, a residential complex.
[24] Our court examined various decisions with regard to the meaning of the
term “fair market value” and the use of the cost approach when applying
subsection 191(3) of the Act. These decisions do not dismiss the use of
the two other approaches when the circumstances are appropriate. I am setting
out some passages here that are relevant to some of these decisions.
[25] In Charleswood Legion Non‑Profit Housing Inc. v. Canada,
[1998] T.C.J. No. 503 (Q.L.), Archambault J. of this court summarized the
meaning of the term “fair market value.”
[40] It would be useful to set out the meaning of
“fair market value” that has been adopted by the courts. In Re Mann Estate,
[1972] 5 W.W.R. 23, at p. 27, aff’d [1973] CTC 561 (B.C.C.A.), aff’d [1974] CTC
222 (S.C.C.), we find this definition :“ ‘fair market value’ is the highest
price available estimated in terms of money which a willing seller may obtain
for the property in an open and unrestricted market from a willing,
knowledgeable purchaser acting at arm’s length”.
[26] In Timber Lodge Ltd. v. Canada, [1994] T.C.J. No. 934
(Q.L.), Taylor J. of this court believed that the cost approach should not be
eliminated. Taylor J. had difficulty seeing how it was possible for the fair
market value of a nearly new building to be less than the actual cost of the
building (e.g., the renovation costs) when the building’s depreciation is not a
factor that needs to be taken into consideration. Therefore, the subsequent
losses cannot be taken into consideration immediately when valuating the fair
market value of the building at issue. The Court wrote the following:
[...] The quarrel I do have is in eliminating in both reports,
the Cost Approach, although I do understand the reasons they put forward
for doing so. The fact is that on both of these buildings, construction
was completed on the very date on which appraisal is required. Of course there
would be little if any value to a restructuring of an amount to
accomplish "replacement or reproduction costs," and no purpose would
be served in going through that exercise. But to eliminate, ignore, or denigrate
the usefulness for appraisal purposes of that very total actual cost
which had been accumulated during construction and culminated on that very day
(144 Maypoint, March 31, 1991, and 148 Maypoint, July 31, 1991) leaves me in
serious disagreement. In all the hundreds of appraisal reports and opinions to
which I have been exposed over the years, I can not recall one upon which the
relevant date coincided exactly with the end of construction, and the resultant
calculations of total costs. For me, barring any direct and incontestable
variation in that amount of cost, it should also serve as value,
and indeed as fair market value.
[...]
[...] Fair market value, must first of all be fair, and amounts
of $490,000.00 each for the buildings' stretches credibility when the actual
cost is the starting point, and there is no requirement for depreciation, etc.
Perhaps one other way of clearly demonstrating such an alleged dramatic
decrease in value would be the filing of accredited financial statements
showing continuing losses over a period of time from maximum rentals
obtainable, but even that would be subject to serious question. That of course
could only happen at some future date, not on the date of completion of
construction. None of this, or anything even closely resembling it was
presented at the trial. The Respondent's appraisal amounts, while in themselves
subject to question, have not been seriously challenged by the Appellant's
reports.
[27] In the above-mentioned Charleswood Legion Non‑Profit Housing
Inc., Archambault J. of this court concurred with the conclusions
of Taylor J. in Timber Lodge Ltd. by stating that a building’s fair
market value equals its cost less inefficiencies such as cost overruns. The
Court wrote the following:
[46] I believe that the Cost Approach should not have
been ignored by the two experts. In circumstances such as those in this case,
the fair market value should be very close to the cost paid by the Appellants
because the two buildings were brand new at the relevant valuation date. This
is the approach followed by my colleague judge Taylor in Timber Lodge
Limited v. The Queen, [1994] G.S.T.C. 73. Here we do not have to apply any
adjustments for economic depreciation, which would have been the case had the
valuations taken place several years after the construction of the buildings.
[...]
[47] There may be special circumstances in which some
of the costs incurred for the construction of a building may not be reflected
in its fair market value. For example, if there were cost overruns and other
inefficiencies during construction, the cost of such property may be above its
fair market value. [...]
[28] Again in Charleswood Legion Non‑Profit Housing Inc.,
Archambault J. stated that selecting the approach to determining the fair market
value varies according to the type of property to be valuated. For example, the
income approach is appropriate for for-profit rental properties. The Court
wrote the following:
[44] To select the appropriate approach to determining
the fair market value of real estate, we have to take into account the nature
of the property and each case must be assessed on its specific facts. Here we
are called upon to valuate non-profit rental properties and not a for-profit
rental project. In my view, the Income Approach is a flawed method in the case
of non-profit rental properties because no income could be generated from such
properties. The same logic applies with respect to the Direct Comparison
Approach. The properties that were used as comparables in this particular case
were properties rented for profit. I think it is fair to assume that purchasers
of those rental properties would have taken into account their return on
investment when agreeing to the prices they paid for them. Therefore, in my
view, the comparables used were inappropriate. We cannot compare for-profit
rental properties with non-profit rental properties. This method could only be
useful if sales of other non-profit rental properties could have been
identified. However, there was no such evidence here.
[29] Archambault J. concluded in paragraph 49 that “the fair market value of the two subject properties should not
exceed their cost and should not be lower than the amount of the mortgage loans
used to finance their acquisition.”
[30] In Sira Enterprises Ltd. v. Canada, [2000] T.C.J.
No. 804 (Q.L.), Margeson J. of this court confirmed that the
appraiser cannot disregard the cost approach in determining the fair market
value of a property:
[76] In the case at bar the appraiser presented by the
Respondent was asked the very question as to why he failed to take into account
the cost approach in determining fair market value at the time the properties
were ready for occupancy. The only attempted explanation was that he had
already made up his mind that the income approach and the comparable sales
approach were the best and he did not consider the cost approach. He did say
that the comparables used were truly comparable but the evidence did show that
there were some different factors when one compared the properties in question
and the comparables that were used. To the Court’s mind, this was not a
satisfactory reason for disregarding the cost approach altogether.
[31] Margeson J. also pointed out the weaknesses of the direct comparison
approach (comparable sales approach method):
[82] This of course is one weakness in the comparable
sales approach method because it is obviously not possible to find sales which
are truly comparable and in the case at bar the appraiser for the Respondent
did admit that he had to go some distance away from the site of the properties
in question to locate other properties which he considered to be comparable.
[32] In Pinelli v. Canada, [1998] T.C.J. No. 583 (Q.L.), McArthur J. of this court expressed the belief that
a judge could determine a building’s fair market value, although the judge must
not merely adopt a figure that is somewhere between the fair market value
suggested by the appellant and the value suggested by the respondent:
[TRANSLATION]
[19] To obtain a value, I am adopting the
oft-cited statement made by Walsh J. in Bibby v. The Queen, T.C.,
trial division, No. T‑3587‑82, March 17, 1983, page 19
(83 DTC 5148, page 5157), where the following may be read:
While it has frequently been held that a
Court should not, after considering all the expert and other evidence merely
adopt a figure somewhere between the figure sought by the contending parties,
it has also been held that the Court may, when it does not find the evidence of
any expert completely satisfying or conclusive, nor any comparable especially
apt, form its own opinion of valuation, provided this is always based on the
careful consideration of all the conflicting evidence. The figure so arrived at
need not be that suggested by any expert or contended for by the parties.
[33] When determining a building’s market value, the value must correspond
to the definition of the fair market value. Also, the approach used to
determine the fair market value must take into consideration the nature of the
building. The decisions referred to above clearly establish that, when
constructing a new building, the cost approach seems to be the most appropriate
approach since a building’s fair market value does not normally exceed its
cost. However, when two floors are renovated to convert them into housing units
and when the building is a historic old building that does not meet today’s
requirements, it is more than likely, as is the case here, that the cost of
these renovations far exceeds the building’s fair market value. In these
circumstances, I believe that using the cost approach is not appropriate
because, according to subsection 191(3), it involves establishing the fair
market value of the building, not the renovations of the two floors.
[34] The explanatory notes of Canada’s Minister of Finance clearly state
that subsection 191(3) of the Act requires the valuation of the fair market
value of the entire complex. In my opinion, the approach used by the
respondent’s expert does not reflect the fair market value of the entire
complex. His valuation focuses on the cost of the renovations to the two floors
for the purposes of calculating the GST, whereas the calculation should be done
based on the fair market value of the entire complex.
[35] In this type of case, where only two floors are converted into housing
units and the complex is an old building where the valuation of renovation
costs is risky, I think it is appropriate to use the average of the three
valuation approaches used by the appellant’s expert. Therefore, I am going to
concur with the fair market value established by the appellant’s expert and
conclude that the fair market value of the building as of July 1, 2002, was
$425,000, including taxes.
[36] Now, for the purposes of determining the value of the taxable supply
of the part of the building used as a residential complex, the following
guidelines set out in subsection 136(2) of the Act must be consulted:
136(2) Combined supply of real property — For the purposes of this Part, where a supply of real property
includes the provision of
(a) real property that is
(i) a residential complex,
(ii) land, a building or part of a building that forms or is
reasonably expected to form part of a residential complex, or
(iii) a residential trailer park, and
(b) other real property that is not part of the property
referred to in paragraph (a),
the
property referred to in paragraph (a) and the property referred to in
paragraph (b) shall each be deemed to be a separate property and the
provision of the property referred to in paragraph (a) shall be deemed
to be a separate supply from the provision of the property referred to in
paragraph (b), and neither supply is incidental to the other.
[37] In the subject building there is property that does not meet the
definition of a residential complex. Therefore, for the purposes of determining
the taxable supply, a proportion must be established that allows this
distinction to be made. The appellant’s expert estimated the proportion
attributable to the commercial part to be 35% according to the proportion of
the area of the commercial part in relation to the total area and according to
the proportion of the rental income from that part in relation to the total
income. I agree that this proportion of the building in question is 65% of the
fair market value of the building for the purposes of the taxable property
category.
[38] The appeal is allowed and referred back to the
Minister of National Revenue for reconsideration and reassessment, based on the above-mentioned Reasons.
Signed at Edmundston, New Brunswick, this 6th
day of July 2004.
Angers
J.
Certified
true translation
Colette Beaulne
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