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LEGAL REPORT/TAX LAW No such thing as free parking Employees at prestigious girls' school challenge decision on parking as a taxable benefit. BY JENNIFER BROWN I s there really such a thing as free parking these days? If you work in any major centre in Canada, access to parking and whether you have to pay for it is a signifi- cant factor for most people. The Federal Court of Appeal is about to consider that question and take another look at whether free parking at work should be considered a taxable benefit. In what has become known as the Branksome Hall parking cases, Antho- ny v. The Queen is challenging whether parking provided to employees of a not- for-profit independent girls' school locat- ed in on a 13-acre campus in a residential area of Toronto should be considered a taxable benefit under the Income Tax Act, and if so, how the value of the benefit should be assessed. Geraldine Anthony, Heather Friesen, Leslie Morgan, and Jarrod Baker, along with 100 other employees at Branksome Hall, were reassessed for their 2003 and 2004 taxation years to include $92 per month (including tax) in their income representing the value of free parking provided by their employer. The amount was based on what commercial parking lots were charging in commercial areas at the time. These four appeals were chosen as test cases and heard on common evi- dence. Relying on Schroter v. The Queen, the value of the taxable benefit was its fair market value and the value of the taxable benefit was assessed by the court 44 JAN UARY 2012 www. CANADIAN Lawyermag.com and reduced to $75 per month in 2003 and $77 per month in 2004. It was also assessed only for the months the employ- ees were at the school using the parking spots — generally nine months. There are six outdoor parking lots of various sizes at Branksome Hall, some for visitors while others are for staff and faculty. Before 2003, the school provided free parking to all faculty and staff on a first-come, first-served basis. But in 2003, the school implemented an assigned parking system when some parking spots were redeveloped for other use and the total number of spots was reduced to 105. The employment agreements did not ref- erence parking in any way. In the decision, Tax Court Justice peter Mitchell