Striler Inc v. Jake Zimmerman, Assessor St Louis County

State Tax Commission of Missouri

 

STRILER INC,	)
	)
Complainant,	)
	)
v.	)	Appeal Number  13-12899 and 13-12900
	)
JAKE ZIMMERMAN, ASSESSOR,	)
ST LOUIS COUNTY, MISSOURI,	)
	)
Respondent.	)

 

 

 

 

DECISION AND ORDER

 

HOLDING

 

Decision of the County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.  Complainant did not present substantial and persuasive evidence to rebut the presumption of correct assessment by the Board of Equalization.

True value in money for the subject property for tax years 2013 and 2014 is set at:

Appeal No.	True Value	Assessed  Value
13-12899	$194,000	$62,080 Commercial
13-12900	$ 94,200	$4,260 Residential $30,140 Commercial

 

Complainant appeared by attorney Robert Striler.

Respondent appeared by Associate County Counselor Paula Lemerman.

Case heard and decided by Hearing Officer Maureen Monaghan.

 

 

ISSUE

Complainant appeals, on the grounds of overvaluation and misclassification, the decision of the St. Louis County Board of Equalization, which sustained the assessment of the subject property.  The Commission takes this appeal to determine the true value in money for the subject property and classification of the properties on January 1, 2013.  The assessment as of January 1 of the odd numbered year remains the assessment as of January 1 of the following even numbered year unless there is new construction and improvement to the property.  Section 137.115.1 RSMo

The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.

FINDINGS OF FACT

1. Jurisdiction. Jurisdiction over this appeal is proper.  Complainant timely appealed to the State Tax Commission from the decision of the St. Louis County Board of Equalization.
2. Evidentiary Hearing. The Evidentiary Hearing was held on March 24, 2015 at the St. Louis County Administration Building, Clayton, Missouri.
3. Identification of Subject Property. The subject property is identified by map parcel numbers 27L440695 and 27L440266.  It is further identified as 11609 and 11615 Denny Road.
4. Description of Subject Property. The subject properties, combined, are approximately ½ acre of land improved by a commercial building formerly operating as a dry cleaner, parking and a single family, residential home.
5. Sale of Subject. The subject property located at 11609 Denny was purchased by Complainant’s family in the 1960s for operation of a dry cleaner.  The property is located on the intersection of Denny and Sappington Road.  In the 1980s, Sappington Road was expanded necessitating the purchase of 11615 Denny to provide parking for the dry cleaner.  Improvements on 11615 Denny included a single family dwelling consisting of two bedrooms, one bath, basement garage, with no central air conditioning.  Parking was established by paving in front and behind the home.  The dry cleaner business was abandoned in the spring of 2013.  The condition of the commercial building, according to the owner, is poor.  There are holes in the roof, no air conditioning, and no heat. Due to the extensive use as a dry cleaner, there may be environmental hazards.  The owner has listed the property since 2013.  It is listed as a sale of both properties for $395,000.  He has indicated that he would sell both, as is, for $100,000.  On November 20, 2013, the City of Sunset Hills notified the owner that the properties, due to lack of commercial business, have reverted back to residential zoning; although, the highest and best use of the properties is commercial. The only income from the properties currently is rental of the home in the amount of $250 per month.
6. Assessment. The Assessor made the following determinations of value and assessment.  The Board of Equalization sustained the assessment.

Appeal No.	True Value	Assessed  Value
13-12899	$194,000	$62,080 Commercial
13-12900	$ 94,200	$4,260 Residential $30,140 Commercial

 

7. Complainant’s Evidence.
8. Exhibit A – Notice that the properties are zoned residential;
9. Exhibit B – Request for admissions that the property is zoned residential; and
10. Exhibit C – Balance sheets and other financial documents from the properties.

All exhibits were admitted into evidence.

8. No Evidence of New Construction & Improvement. There was no evidence of new construction and improvement from January 1, 2013, to January 1, 2014, therefore the assessed value for 2013 remains the assessed value for 2014.  Section 137.115.1, RSMo.
9. Respondent’s Evidence.
10. Exhibit 1 Board of Equalization Decisions
11. Exhibit 2: Listing Sheet

Exhibit 1 was submitted pursuant to the exchange schedule and admitted into evidence.  Exhibit 2 was offered during the hearing after testimony by the owner that the property was listed for sale.  Complainant objected as the exhibit was not submitted pursuant to the schedule.  The objection was overruled and the exhibit was admitted into evidence.

10. Presumption of Correct Assessment Not  Rebutted.  Complainant’s evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board.

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.  Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo. 

Basis of Assessment

            The Constitution mandates that real property and tangible personal property be assessed at its value or such percentage of its value as may be fixed by law for each class and for each subclass.  Article X, Sections 4(a) and 4(b), Mo. Const. of 1945.   The constitutional mandate is to find the true value in money for the property under appeal.  By statute real and tangible personal property are assessed at set percentages of true value in money. Section 137.115.5, RSMo – residential property at 19% of true value in money; commercial property at 32% of true value in money and agricultural property at 12% of true value in money.

Presumption In Appeal

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.  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). The presumption of correct assessment is rebutted when the taxpayer 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. Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).

Respondent’s Burden of Proof

In charter counties or the City of St. Louis, the Respondent, when wishing to advocate the Assessor’s original valuation which was reduced by the Board of Equalization, has imposed upon him by the provisions of Section 137.115.1, RSMo, the burden of proof to present clear, convincing and cogent evidence the valuation on residential property which is made by a computer, computer-assisted method or a computer program.  If the Board of Equalization’s valuation is the same as the Assessor’s valuation, the computer assisted presumption and burden of proof standard does not come into play, as the Board’s valuation is an independent valuation of the subject property.   As to the residential portion of the property, the Board did not reduce the Assessor’s valuation.

Complainant’s Burden of Proof

 

In order to prevail, Complainant must present substantial and persuasive evidence as to the classification and the market value of the subject properties on January 1, 2013.  Hermel, supra.   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.”  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).

Owner’s Opinion of Value

The owner of property is generally held competent to testify to its reasonable market value.   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).   The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation. 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).

A taxpayer does not meet his burden if evidence on any essential element of his case leaves the Commission “in the nebulous twilight of speculation, conjecture and surmise.”  See, Rossman v. G.G.C. Corp. of Missouri, 596 S.W.2d 469, 471 (Mo. App. 1980).

In these appeals, the owner of the property (Robert Striler) testified as to the condition of the property and the listing.  He set forth the listing of $395,000 and his willingness to accept $100,000.  The owner also submitted Exhibit C – financial statements of the business and properties.

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.   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).  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.   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).

The testimony fails to establish true value in money under any recognized methodology.  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.  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).   Although the owner expressed the offer for sale, there was no evidence as to the willingness of a buyer to pay the listing price.  There was no evidence as to the market for these types of properties either by the sale of the properties or income generated by these types of properties.  The Complainant failed to meet his burden of substantial and persuasive evidence.

 

Classification

The properties are classified as commercial (13-12899, dry cleaner) and mixed use, residential and commercial (13-12900, parking lots and house). Complainant argues that the entirety of both properties should be classified as of January 1, 2013 residential. “Residential property”, is defined in Section 137.016 RSMo as all real property improved by a structure which is used or intended to be used for residential living by human occupants, …” Complainant sets forth three points as to why the properties should be residential classification. First he argues that although the part of the property was used commercial on January 1, 2013, the dry cleaner’s demise was foreseen at that time. Second, the City of Sunset notified him in 2013 that the property is now considered zoned as residential.   Third, the Respondent, by failing to respond to the request for admissions, admitted to residential zoning. A request for admission under Missouri Supreme Court Rule of Civil Procedure 59.01 has the effect of removing an issue from litigation.  This not only has the effect of establishing the facts which are the subject of the request, but operates so as to prevent a party from contesting that fact now or at trial. Young v. Frozen Foods Express, Inc. 444 S.W. 2d 35 (Mo. App. 1969).

On January 1, 2013 the property was used as a residential property and as a commercial property.  The structure used as a dry cleaner was not used nor intended to be used for residential living.  The property continues to be listed for commercial use and testimony of the owner indicates that the highest and best use would be commercial.  Under Missouri law, property is classified according to its use. Section 137.016 controls the classification of real property for property tax purposes.  A county ordinance, zoning or otherwise, would have no relevance to the property tax classification. Bateman v. Rinehart, 391 SW3d 441 (Mo 2013)

Further, the assessment which includes both the valuation and the classification is fixed as of January 1 of the odd year and, absent new construction, remains in the even year.

ORDER

The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization for St Louis County for the subject tax day is AFFIRMED.

Application for Review

A party may file with the Commission an application for review of this decision within thirty days of the mailing date set forth in the Certificate of Service for this Decision.  The application shall contain specific facts or law as 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 application for review is based will result in summary denial. Section 138.432, RSMo

 

Disputed Taxes

The Collector of St Louis County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending the possible filing of an Application for Review, unless said taxes have been disbursed pursuant to a court order under the provisions of Section 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 31^st day of March, 2015.

STATE TAX COMMISSION OF MISSOURI

 

Maureen Monaghan

Hearing Officer

 

Certificate of Service

 

I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 31st day of March, 2015, to: Complainants(s) counsel and/or Complainant, the county Assessor and/or Counsel for Respondent and county Collector.

 

 

Jacklyn Wood

Legal Coordinator

 

Contact Information for State Tax Commission:

Missouri State Tax Commission

301 W. High Street, Room 840

P.O. Box 146

Jefferson City, MO 65102-0146

573-751-2414

573-751-1341 Fax