State Tax Commission of Missouri
| ALICE D. POLLOCK | ) | Appeal No. | Appeal No. 13-33001 |
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| Complainant | ) | ||
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| RICK KESSINGER, ASSESSOR | ) | ||
| GREENE COUNTY, MISSOURI,Respondent | ) |
DECISION AND ORDER
HOLDING
Decision of the Greene County Board of Equalization is AFFIRMED. True value in money for the subject property for tax years 2013 and 2014 is $127,800, residential assessed value of $24,280.
Complainant appeared pro se.
Respondent appeared by counsel, Theodore L. Johnson, III and through his appraiser, Michael Crawford.
Case heard and decided by Senior Hearing Officer Luann Johnson.
ISSUE
The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2013 and January 1, 2014.
SUMMARY
Complainant appeals, on the grounds of overvaluation and discrimination, the decision of the Greene County Board of Equalization. At hearing, Assessor’s appraiser proposed an appraised value of $127,800 (assessed value of $24,280, as residential property). Complainant proposed a value of $95,000 (assessed value of $18,050). A hearing was conducted on April 29, 2014, at the Historic Courthouse, 940 Booneville, Greene County, Springfield, Missouri.
Complainant’s claims of discrimination seems to be (1) a complaint concerning a bridge built in the area and including negotiations with the county concerning cutting off Complainant’s access to the subject property and a Complainant buy back; (2) that the County has discriminated against her by maintaining erroneous building permits for her property; and (3) that the County requested to enter her home for the purposes of assessing her property. Complaints (1) and (2) are outside the jurisdiction of the Commission. As to (3), Complainant indicates that she refused entry to the County’s representatives and, therefore, this is a non-issue in this case. However, it is not uncommon for assessors to ask to enter property to ascertain condition and would not form the basis for a discrimination claim even if such entry occurred.
The Hearing Officer, having considered all of the competent evidence upon the whole record, determines that Complainant’s evidence was not substantial and persuasive to overcome the presumption in favor of the Board of Equalization, and enters the following Decision and Order.
Complainant’s Evidence
Complainant presented a seven page statement of facts,[i] a spreadsheet of showing comparative appraised values,[ii] and pictures showing the property including water and electrical connections, leaks in the basement, the unfinished nature of the basement and repairs to the front porch.[iii]
Complainant testified to some shoddy construction that she had to repair and stated that the property lacked marketability because it contained only one bedroom.
Complainant testified that, as close as she can remember, she spent some $88,400 to build the improvements in 2009. That cost did not include the cost of the septic system or the land. She indicated that the septic system, which is shared between two homes she owns, cost $5,350 ($2,680). She estimates the value of the land to be approximately $4,880 per acre ($14,640). The subject property sits on three acres. Additionally, since construction, Complainant has made approximately $20,000 in improvements and repairs to the house prior to the tax day; for an approximate investment of $125,500.[iv] Complainant produced no estimates as to corrections remaining to be made on January 1, 2013, nor did she present any market derived evidence tending to show market reaction to areas of perceived deficiency or depreciation since the home was finished in late 2009.
Respondent’s Evidence
Respondent presented the appraisal report of Michael Crawford, which report was entered into evidence as Respondent’s Exhibit A.
Mr. Crawford testified that he prepared a cost and a sales comparison approach to value. His cost approach indicated a depreciated value of $127,800. It further indicates; “the cost approach is not considered as a reliable estimate of market value due to variables in materials and depreciation”. His sales approach indicated a value of $161,000. The County requested that this Commission affirm the Board of Equalization value of $127,800, indicating that good comparables sales were not present in this location.
FINDINGS OF FACT
- Jurisdiction over this appeal is proper. Complainant timely appealed to the State Tax Commission from the decision of the Greene County Board of Equalization.
- The subject property is located at 4925 West Spinnaker Lane, Willard, Greene County, Missouri. The property is identified by parcel number 88-08-29-100-020. The property consists of a three acre lot improved by a one-story single-family structure of fair to average quality construction and average condition, built in 2009. The residence has 1,288 square feet of living area on the main level. Most notable is that the property, although of a size that would normally indicate two or three bedrooms, has only one bedroom on the main level. The property has a full unfinished walk-out basement which has some stud walls constructed and a built in tornado shelter. Additionally, the home has an attached two-car garage.
- There was no evidence of new construction or property improvement from January 1, 2013, to January 1, 2014.
- Complainant’s opinion of value is not supported by an appraisal or other substantial and persuasive evidence. Respondent’s appraisal is not supported by substantial and persuasive evidence.
CONCLUSIONS OF LAW AND DECISION
Jurisdiction
The Commission has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious. The hearing officer shall issue a decision and order affirming, modifying or reversing the determination of the board of equalization, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious.[v]
Official and Judicial Notice
Agencies shall take official notice of all matters of which the courts take judicial notice.[vi]
Courts will take judicial notice of their own records in the same cases.[vii] In addition, courts may take judicial notice of records in earlier cases when justice requires[viii] or when it is necessary for a full understanding of the instant appeal.[ix] Courts may take judicial notice of their own records in prior proceedings involving the same parties and basically the same facts.[x]
Presumptions In Appeals
There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[xi]
The presumption in favor of the Board is not evidence. A presumption simply accepts something as true without any substantial proof to the contrary. In an evidentiary hearing before the Commission, the valuation determined by the Board, even if simply to sustain the value made by the Assessor, is accepted as true only until and so long as there is no substantial evidence to the contrary.
The presumption of correct assessment is rebutted when the taxpayer, or respondent when advocating a value different than that determined by the Board, presents substantial and persuasive evidence to establish that the Board’s valuation is erroneous and what the fair market value should have been placed on the property.[xii]
Standard for Valuation
Section 137.115, RSMo, requires that property be assessed based upon its true value in money which is defined as the price a property would bring when offered for sale by one willing or desirous to sell and bought by one who is willing or desirous to purchase but who is not compelled to do so.[xiii] It is the fair market value of the subject property on the valuation date.[xiv] Market value is the most probable price in terms of money which a property should bring in competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeable and assuming the price is not affected by undue stimulus.
Implicit in this definition are the consummation of a sale as of a specific date and the passing of title from seller to buyer under conditions whereby:
- Buyer and seller are typically motivated.
- Both parties are well informed and well advised, and both acting in what they consider their own best interests.
- A reasonable time is allowed for exposure in the open market.
- Payment is made in cash or its equivalent.
- Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.
- The price represents a normal consideration for the property sold unaffected by special financing amounts and/or terms, services, fees, costs, or credits incurred in the transaction.[xv]
Duty to Investigate
In order to investigate appeals filed with the Commission, the Hearing Officer has the duty to inquire of the owner of the property or of any other party to the appeal regarding any matter or issue relevant to the valuation, subclassification or assessment of the property. The Hearing Officer’s decision regarding the assessment or valuation of the property may be based solely upon its inquiry and any evidence presented by the parties, or based solely upon evidence presented by the parties.[xvi]
Weight to be Given Evidence
The Hearing Officer is not bound by any single formula, rule or method in determining true value in money, but is free to consider all pertinent facts and estimates and give them such weight as reasonably they may be deemed entitled. The relative weight to be accorded any relevant factor in a particular case is for the Hearing Officer to decide.[xvii]
Trier of Fact
The Hearing Officer as the trier of fact may consider the testimony of an expert witness and give it as much weight and credit as he may deem it entitled to when viewed in connection with all other circumstances. The Hearing Officer is not bound by the opinions of experts who testify on the issue of reasonable value, but may believe all or none of the expert’s testimony and accept it in part or reject it in part.[xviii]
Methods of Valuation
Proper methods of valuation and assessment of property are delegated to the Commission. It is within the purview of the Hearing Officer to determine the method of valuation to be adopted in a given case.[xix]
Missouri courts have approved the comparable sales or market approach, the cost approach and the income approach as recognized methods of arriving at fair market value.[xx]
Opinion Testimony by Experts
An expert’s opinion must be founded upon substantial information, not mere conjecture or speculation, and there must be a rational basis for the opinion.[xxi] The State Tax Commission cannot ignore a lack of support in the evidence for adjustments made by the expert witnesses in the application of a particular valuation approach.[xxii]
The testimony of an expert is to be considered like any other testimony, is to be tried by the same test, and receives just so much weight and credit as the trier of fact may deem it entitled to when viewed in connection with all other circumstances. The hearing officer, as the trier of fact, has the authority to weigh the evidence and is not bound by the opinions of experts who testify on the issue of reasonable value, but may believe all or none of the expert’s testimony and may accept it in part or reject it in part.[xxiii]
If specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert on that subject, by knowledge, skill, experience, training, or education, may testify thereto.
The facts or data upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reliable, the facts or data need not be admissible in evidence.[xxiv]
Complainant’s Burden of Proof
In order to prevail, Complainant must present an opinion of market value and substantial and persuasive evidence that the proposed value is indicative of the market value of the subject property on January 1, 2013.[xxv] There is no presumption that the taxpayer’s opinion is correct. The taxpayer in a Commission appeal still bears the burden of proof. The taxpayer is the moving party seeking affirmative relief. Therefore, the Complainant bears the burden of proving the vital elements of the case, i.e., the assessment was “unlawful, unfair, improper, arbitrary or capricious.”[xxvi]
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[xxvii] Persuasive evidence is that evidence which has sufficient weight and probative value to convince the trier of fact. The persuasiveness of evidence does not depend on the quantity or amount thereof but on its effect in inducing belief.[xxviii]
Owner’s Opinion of Value
The owner of property is generally held competent to testify to its reasonable market value.[xxix] The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[xxx] “Where the basis for a test as to the reliability of the testimony is not supported by a statement of facts on which it is based, or the basis of fact does not appear to be sufficient, the testimony should be rejected.”[xxxi]
A taxpayer does not meet her burden if evidence on any essential element of her case leaves the Commission “in the nebulous twilight of speculation, conjecture and surmise.”[xxxii]
Parties Fail to Present Substantial and Persuasive Evidence
An owner’s opinion of value is not probative if it is not based upon a proper foundation. Although Complainant proposes a value of $95,000, she doesn’t explain how she got to that number. It may have been based upon a prior BOE decision. In order to give Complainant’s opinion some credence, it would have had to have been based upon a recognized cost approach or properly adjusted market sales which is not present in Complainant’s testimony or exhibits. Both appreciation and depreciation may have occurred since Complainant finished the home and neither can be accounted for without market derived data.
Valuing property is not an exact science and the fact that a few properties might have been appraised at less than the subject property, does not establish that the subject property was incorrectly valued or that discrimination was present. The fact that the Board value closely mirrors the admitted investment by Complainant on a home that was barely two years old on the tax day, suggests some accuracy in the Board’s value.
Typically, single family homes would be valued using a sales comparison approach because it tends to reflect market reaction. Respondent’s sales show a range of value between $96 per square foot and $142 per square foot, or $161,000 to $201,900. The failure to find a tight range of comparables makes the sales comparison approach less reliable and Respondent has asked that we affirm the BOE rather than relying on the sales comparison approach. Clearly, this property has given the County some valuation issues; perhaps because most houses of this size would have more than one bedroom or perhaps because of the lack of similar sales in the neighborhood. The sales used all resulted in substantially higher values than the value determined by the Board of Equalization.
Respondent’s cost approach, which results in the same value as the Board of Equalization, values the property at $78.50 per square foot. Although Respondent questions the reliability of the cost approach because of questions of cost to build and depreciation, it does result in the lowest value based upon available market data and a value that is very similar to the total investment by Complainant, as near as we can tell.
Neither party presented substantial and persuasive evidence tending to show that the Board’s value was unlawful, unfair, improper, arbitrary or capricious.
ORDER
The assessed valuation for the subject property as determined by the Board of Equalization for Greene County for the subject tax day is AFFIRMED.
A party may file with the Commission an application for review of this decision within thirty (30) days of the mailing date shown in the Certificate of Service. The application shall contain specific grounds upon which it is claimed the decision is erroneous. Said application must be in writing addressed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, MO 65102-0146, and a copy of said application must be sent to each person at the address listed below in the certificate of service.
Failure to state specific facts or law upon which the appeal is based will result in summary denial.[xxxiii]
The Collector of Greene County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending a filing of an Application for Review, unless said taxes have been disbursed pursuant to a court order under the provisions of 139.031.8 RSMo.
Any Finding of Fact which is a Conclusion of Law or Decision shall be so deemed. Any Decision which is a Finding of Fact or Conclusion of Law shall be so deemed.
SO ORDERED this 3rd day of July, 2014.
STATE TAX COMMISSION OF MISSOURI
Luann Johnson
Senior Hearing Officer
Certificate of Service
I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 3rd day of July, 2014, to: Alice D. Pollock, 4918 West Spinnaker Lane, Willard, MO, Complainant; Theodore Johnson, Greene County Counselor, 901 St. Louis Street, 20th Floor, Springfield, MO 65806, Attorney for Respondent; Rick Kessinger, Assessor; Richard Struckhoff, Clerk; Scott Payne, Collector, Greene County Courthouse, 940 Boonville, Springfield, MO 65806.
Jackie Wood
Legal Coordinator
[i] Ex. 21. [ii] Ex. 20. Pictures were provided for those identified in orange. The pictures were not actually entered into evidence. [iii] Ex. 22 -27. [iv] This number includes about half of the cost of the shared septic system.
[v] Article X, section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo.
[vi] Section 536.070(6), RSMo.
[vii] State ex rel. Horton v. Bourke, 129 S.W.2d 866, 869 (1939); Barth v. Kansas City Elevated Railway Company, 44 S.W. 788, 781 (1898).
[viii] – Burton v. Moulder, 245 S.W.2d 844, 846 (Mo. 1952); Knorp v. Thompson, 175 S.W.2d 889, 894 (1943); Bushman v. Barlow, 15 S.W.2d 329, 332 (Mo. banc 1929)
[ix] State ex rel St. Louis Public Service Company v. Public Service Commission, 291 S.W.2d 95, 97 (Mo. banc 1956).
[x] In re Murphy, 732 S.W.2d 895, 902 (Mo. banc 1987); State v. Gilmore, 681 S.W.2d 934, 940 (Mo. banc 1984); State v. Keeble, 399 S.W.2d 118, 122 (Mo. 1966).
[xi] Hermel, Inc. v. STC, 564 S.W.2d 888, 895 (Mo. banc 1978); Chicago, Burlington & Quincy Railroad Co. v. STC, 436 S.W.2d 650, 656 (Mo. 1968); May Department Stores Co. v. STC, 308 S.W.2d 748, 759 (Mo. 1958).
[xii] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).
[xiii] St. Joe Minerals Corp. v. State Tax Commission, 854 S.W.2d 526, 529 (Mo. App. E.D. 1993); Missouri Baptist Children’s Home v. State Tax Commission, 867 S.W.2d 510, 512 (Mo. banc 1993).
[xiv] Hermel, supra.
[xv] Real Estate Appraisal Terminology, Society of Real Estate Appraisers, Revised Edition, 1984; See also, Real Estate Valuation in Litigation, J. D. Eaton, M.A.I., American Institute of Real Estate Appraisers, 1982, pp. 4-5; Property Appraisal and Assessment Administration, International Association of Assessing Officers, 1990, pp. 79-80; Uniform Standards of Professional Appraisal Practice, Glossary.
[xvi] Section 138.430.2, RSMo.
[xvii] St. Louis County v. Security Bonhomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977); St. Louis County v. STC, 515 S.W.2d 446, 450 (Mo. 1974); Chicago, Burlington & Quincy Railroad Company v. STC, 436 S.W.2d 650 (Mo. 1968).
[xviii] St. Louis County v. Boatmen’s Trust Co., 857 S.W.2d 453, 457 (Mo. App. E.D. 1993); Vincent by Vincent v. Johnson, 833 S.W.2d 859, 865 (Mo. 1992); Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. 1991); Curnow v. Sloan, 625 S.W.2d 605, 607 (Mo. banc 1981).
[xix] See, Nance v. STC, 18 S.W.3d 611, at 615 (Mo. App. W.D. 2000); Hermel, supra; Xerox Corp. v. STC, 529 S.W.2d 413 (Mo. banc 1975).
[xx] St. Joe Minerals Corp. v. STC, 854 S.W.2d 526, 529 (App. E.D. 1993); Aspenhof Corp. v. STC, 789 S.W.2d 867, 869 (App. E.D. 1990); Quincy Soybean Company, Inc., v. Lowe, 773 S.W.2d 503, 504 (App. E.D. 1989), citing Del-Mar Redevelopment Corp v. Associated Garages, Inc., 726 S.W.2d 866, 869 (App. E.D. 1987); and State ex rel. State Highway Comm’n v. Southern Dev. Co., 509 S.W.2d 18, 27 (Mo. Div. 2 1974).
[xxi] Missouri Pipeline Co. v. Wilmes, 898 S.W. 2d 682, 687 (Mo. App. E.D. 1995). [xxii] Drey v. State Tax Commission, 345 S.W. 2d 228, 234-236 (Mo. 1961), Snider v. Casino Aztar/Aztar Missouri Gaming Corp., 156 S.W. 3d, 341, 348 (Mo. 2005).
[xxiii] Beardsley v. Beardsley, 819 S.W. 2d 400, 403 (Mo. App. 1991); Curnow v. Sloan, 625 S.W. 2d 605, 607 (Mo. 1981); Scanlon v. Kansas City, 28 S.W. 2d 84, 95 (Mo. 1930).
[xxiv] Section 490.065, RSMo; State Board of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. SC. 2004); Courtroom Handbook on Missouri Evidence, Wm. A. Schroeder, Sections 702-505, pp. 325-350; Wulfing v. Kansas City Southern Industries, Inc., 842 S.W.2d 133 (Mo. App. E.D. 1992).
[xxv] Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, at 897.
[xxvi] See, Westwood Partnership v. Gogarty, 103 S.W.3d 152 (Mo. App. E.D. 2003); Daly v. P. D. George Co., 77 S.W.3d 645 (Mo. App. E.D. 2002); Reeves v. Snider, 115 S.W.3d 375 (Mo. App. S.D. 2003). Industrial Development Authority of Kansas City v. State Tax Commission of Missouri, 804 S.W.2d 387, 392 (Mo. App. 1991).
[xxvii] See, Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).
[xxviii] Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975).
[xxix] Rigali v. Kensington Place Homeowners’ Ass’n, 103 S.W.3d 839, 846 (Mo. App. E.D. 2003); Boten v. Brecklein, 452 S.W.2d 86, 95 (Sup. 1970).
[xxx]Cohen v. Bushmeyer, 251 S.W.3d 345, (Mo. App. E.D., March 25, 2008); Carmel Energy, Inc. v. Fritter, 827 S.W.2d 780, 783 (Mo. App. W.D. 1992); State, ex rel. Missouri Hwy & Transp. Com’n v. Pracht, 801 S.W.2d 90, 94 (Mo. App. E.D. 1990); Shelby County R-4 School District v. Hermann, 392 S.W.2d 609, 613 (Sup. 1965).
[xxxi] Carmel Energy at 783.
[xxxii] See, Rossman v. G.G.C. Corp. Of Missouri, 596 S.W.2d 469, 471 (Mo. App. 1980).
[xxxiii] Section 138.432, RSMo 2000.