The FNTC has worked with First Nation taxation under the FMA for over 10 years. In 2016, the FNTC advanced a number of amendments to the First Nations Assessment Appeal Regulations (the Regulations) which were implemented. These amendments were aimed at creating efficiencies, adjusting timelines and adding clarity to the assessment appeal process. Through its on-going work with First Nations and assessment service providers, the FNTC is advancing two further amendments to the Regulations.
Amendment to Request for Reconsideration provisions
Section 3 of the Regulations creates a requirement that a reconsideration procedure be included in a property assessment law, and that a period of at least 21 days be provided for that procedure. The concept of a reconsideration procedure originated from Ontario, which is the only provincial jurisdiction with a legislated reconsideration process.
Under the FMA regime, all First Nations must provide a reconsideration process because of section 3 of the Regulations. Using the reconsideration process may reduce the number of appeals by providing an efficient resolution with no cost to the complainant. However, while all First Nations must offer a right to reconsideration process, there is currently no requirement for a taxpayer to use the reconsideration process. Taxpayers may skip the reconsideration process and proceed directly to an appeal.
In Ontario, the reconsideration process is a precondition to bringing an appeal for properties within the residential, farm or managed forests property classes. In other words, if a person does not request a reconsideration, that person cannot bring an appeal.
The FNTC proposes adding a new section to the Regulations that would enable all First Nations to require the reconsideration process as a precondition to bringing an assessment appeal. First Nations would, in their own assessment laws, decide whether to require reconsideration as a precondition to appeal, and whether to apply the precondition to all property classes or only select property classes. This would give First Nations the most flexibility in their taxation regimes.
Amendments to section 8
The FNTC proposes amendments to section 8 of the Regulations to address two timing issues.
First, the time line of 45 days for the Assessment Review Board to commence an appeal hearing is too short for some jurisdictions. Although the timeline generally works in British Columbia, it is proving to be too short of a timeline in other provinces, such as Ontario. Because of the variability of First Nation assessment systems, the FNTC proposes providing First Nations with the ability to set a timeline in their own laws, subject to a maximum of 90 days.
Second, the time line for the hearing starts to run from the delivery of each notice of appeal to the assessor, rather than from the end of the appeal period. This creates a timing problem, as it can prevent an Assessment Review Board from aggregating the hearing of appeals over successive days. For example, if a taxpayer delivers a notice of appeal at the beginning of the appeal period, while another taxpayer delivers a notice of appeal at the end of the appeal period, the Board would need to start the hearing for the first appeal much sooner than for the second appeal, and possibly while the appeal period is still on-going and before the Board has received all appeals for that year.
The FNTC proposed an amendment to provide that the time line for Board hearings start from the end of the appeal period, regardless of when each notice of appeal is received.