Missouri State Tax Commission »

Howard Larkins v. Raines (Morgan)

December 22nd, 2010

State Tax Commission of Missouri

HOWARD LARKINS,)

)

Complainant,)

)

v.) Appeal Number 10-73001

)

ROBERT RAINES, ASSESSOR,)

MORGAN COUNTY, MISSOURI,)

)

Respondent.)

DECISION AND ORDER

HOLDING

Decision of the Morgan County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.True value in money for the subject property for tax year 2010 is set at $84,530, residential assessed value of $16,060.Complainant appeared pro se.Respondent appeared pro se.

Case heard and decided by Senior Hearing Officer W. B. Tichenor.

ISSUE

Complainant appeals, on the ground of overvaluation, the decision of the Morgan County Board of Equalization, which sustained the valuation of the subject property.The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2009.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 Morgan County Board of Equalization.A hearing was conducted on December 2, 2010, at the Morgan County Courthouse, Versailles, Missouri.

2.Assessment.The Assessor appraised the property at $84,530, residential assessed value of $16,060.The Board sustained the assessment.[1]

3.Subject Property.The subject property is located at 32182 Venture Rd., Stover, Missouri.The property is identified by map parcel number 18-6-23-2-3-2-1.

4.Complainant’s Evidence.Mr. Larkin testified in his own behalf and gave his opinion of value to be $50,000.This was based upon the property being in a flood plain.Exhibit A was received into evidence on behalf of Complainant.None of the documents contained in Exhibit A[2] establish what a willing buyer and seller would have agreed to as the purchase price on January 1, 2009, with the subject property being in a flood plain.

There was no evidence of new construction and improvement from January 1, 2009, to January 1, 2010, therefore the assessed value for 2009 remains the assessed value for 2010.[3]

Complainant’s evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2009, to be $50,000, as proposed.

5.Respondent’s Evidence.Exhibit 1 – Sales Comparison Valuation and Exhibit 2 Flood Plain Maps 1, 2 and 3 were received into evidence on behalf of Respondent.Mr. Raines testified in his own behalf relative to the issue of value.

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.[4]

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.[5]The constitutional mandate is to find the true value in money for the property under appeal. By statute real and tangible personal property is assessed at set percentages of true value in money.[6]In an overvaluation appeal, true value in money for the property being appealed must be determined based upon the evidence on the record that is probative on the issue of the fair market value of the property under appeal.

Presumption In Appeals

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[7]This presumption is a rebuttable rather than a conclusive presumption.It places the burden of going forward with some substantial evidence on the taxpayer – Complainant.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.[8]The taxpayer failed to present substantial and persuasive evidence to rebut the presumption of correct assessment by the Board.

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.[9]True value in money is defined in terms of value in exchange and not value in use.[10]It is the fair market value of the subject property on the valuation date.[11]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:

1.Buyer and seller are typically motivated.

2.Both parties are well informed and well advised, and both acting in what they consider their own best interests.

3.A reasonable time is allowed for exposure in the open market.

4.Payment is made in cash or its equivalent.

5.Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.

6.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.[12]

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.[13]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.[14] The owner failed to present any evidence of value derived from one of the three recognized valuation approaches.The owner testified to his opinion of value without any substantiation that his opinion was representative of market value as of January 1, 2009.

Complainant Fails To Prove Value of $50,000

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, 2009.[15]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.”[16]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[17]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.[18]

The owner of property is generally held competent to testify to its reasonable market value.[19]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[20]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.”[21]In the present appeal, the owner’s opinion is based upon the subject property being in the flood plain.No evidence was forthcoming to demonstrate the economic impact on Complainant’s property from being in the flood plain.There was no evidence to establish what a willing buyer and seller would have agreed to as the fair market value on January 1, 2009.The owner’s opinion of $50,000 is mere speculation, conjecture and surmise.Those are not proper elements or a proper foundation to establish the true value in money of the property under appeal.Simply because the property under appeal is situated in a flood plain does not permit the Hearing Officer to arbitrarily set the value at what the owner desires for his property.Establishing the economic impact on lake front property from being in a flood plain cannot be derived from just an owner’s opinion.There must be some market data and analysis presented to address the appraisal problem.In the absence of underlying market information supporting the value tendered by the taxpayer, the owner’s opinion can be given no probative weight.Complainant failed to meet his burden of proof.

ORDER

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

The assessed value for the subject property for tax year 2010 is set at $16,060.

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, MO65102-0146, 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. [22]

Disputed Taxes

The Collector of Morgan 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 December 22, 2010.

STATE TAX COMMISSION OFMISSOURI

_____________________________________

W. B. Tichenor

Senior Hearing Officer

w.b.tichenor@stc.mo.gov

Certificate of Service

I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 22^ndday of December, 2010, to:Howard Larkins, 32182 Venture Rd., Stover, MO 65078, Complainant; Marvin Opie, Prosecuting Attorney, Morgan County Justice Center, Versailles, MO 65084, Attorney for Respondent; Robert Raines, Assessor, 100 East Newton, Versailles, MO 65084; Cathy Daniels, Clerk, 100 East Newton, Versailles, MO 65084; Kathy Francis, Collector, P.O. Box 315, Versailles, MO 65084.

___________________________

Barbara Heller

Legal Coordinator

Barbara.Heller@stc.mo.gov

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

[1] BOE Decision Letter

[2] Exhibit A consisted of the following documents: A-1 – FEMA Information on Flood Map Amendment; A-2 – Flood Insurance Rates; A-3 – Flood Map; A-4 – News articles on economic growth and flood plain maps; A-5 – Elevation Certificate on subject property; A-6 correspondence by and to taxpayer on flood plain issue; A-7 – copies of past years tax bills; A-8 – copies of past years insurance coverage.

[3] Section 137.115.1, RSMo.

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

[5] Article X, Sections 4(a) and 4(b), Mo. Const. of 1945

[6] Section 137.115.5, RSMo

[7] 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)

[8] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959)

[9] 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).

[10] Daly v. P. D. George Company, et al, 77 S.W.3d 645, 649 (Mo. App E.D. 2002), citing, Equitable Life Assurance Society v. STC, 852 S.W.2d 376, 380 (Mo. App. 1993); citing, Stephen & Stephen Properties, Inc. v. STC, 499 S.W.2d 798, 801-803 (Mo. 1973).

[11] Hermel, supra.

[12] 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.

[13] 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).

[14] 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).

[15] Hermel, supra.

[16] 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).

[17] See, Cupples-Hesse, supra.

[18] Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975).

[19] 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).

[20] 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).

[21] See, Rossman v. G.G.C. Corp. of Missouri, 596 S.W.2d 469, 471 (Mo. App. 1980).

[22] Section 138.432, RSMo.

Posted in 2010 | Comments Off on Howard Larkins v. Raines (Morgan)

Dunlap Vanice v. Raines (Morgan)

December 22nd, 2010

State Tax Commission of Missouri

DUNLAP VANICE,)

)

Complainant,)

)

v.) Appeal Number 10-73000

)

ROBERT RAINES, ASSESSOR,)

MORGAN COUNTY, MISSOURI,)

)

Respondent.)

DECISION AND ORDER

HOLDING

Decision of the Morgan County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.True value in money for the subject property for tax year 2010 is set at $549,890, residential assessed value of $104,480.Complainant appeared pro se.Respondent appeared pro se

Case heard and decided by Senior Hearing Officer W. B. Tichenor.

ISSUE

FINDINGS OF FACT

2.Assessment.The Assessor appraised the property at $549,890, residential assessed value of $104,480.The Board sustained the assessment.[1]

3.Subject Property.The subject property is located at 32677 Crescent Dr. Gravois, Missouri.The property is identified by map parcel number 20-6-23-3-1-3.

4.Complainant’s Evidence.Complainant’s Exhibit A – Owner’s Valuation was received into evidence.Mr. Vanice testified as to his opinion of value.

There was no evidence of new construction and improvement from January 1, 2009, to January 1, 2010, therefore the assessed value for 2009 remains the assessed value for 2010.[2]

5.Respondent’s Evidence.Respondent presented Exhibit 1 – Sales Comparison Valuation and he testified in his own behalf relative to the assessment of the property and the sales comparison valuation which he has developed.Exhibit 1 was received into evidence.

CONCLUSIONS OF LAW AND DECISION

Jurisdiction

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.[4]The constitutional mandate is to find the true value in money for the property under appeal. By statute real and tangible personal property is assessed at set percentages of true value in money.[5]In an overvaluation appeal, true value in money for the property being appealed must be determined based upon the evidence on the record that is probative on the issue of the fair market value of the property under appeal.

Presumption In Appeals

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[6]This presumption is a rebuttable rather than a conclusive presumption.It places the burden of going forward with some substantial evidence on the taxpayer – Complainant.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.[7]Complainant failed to present substantial and persuasive evidence to rebut the presumption of correct assessment by the Board.

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.[8]True value in money is defined in terms of value in exchange and not value in use.[9]It is the fair market value of the subject property on the valuation date.[10]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:

1.Buyer and seller are typically motivated.

2.Both parties are well informed and well advised, and both acting in what they consider their own best interests.

3.A reasonable time is allowed for exposure in the open market.

4.Payment is made in cash or its equivalent.

5.Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.

6.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.[11]

Complainant failed to present a valuation methodology in accord with the Standard For Valuation.

Methods of Valuation

at fair market value.[13]Complainant failed to present an opinion of value that was based upon a recognized appraisal methodology.

Complainant Fails To Prove Value of $315,000

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, 2009.[14]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.”[15]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[16]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.[17]

The owner of property is generally held competent to testify to its reasonable market value.[18]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[19]The opinion of value tendered by Mr. Vanice is not derived from any accepted appraisal methodology.Accordingly, it has no probative weight in this appeal.The opinion was not shown to be based upon proper elements or a proper foundation.

ORDER

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

The assessed value for the subject property for tax year 2010 is set at $104,480.

Application for Review

Failure to state specific facts or law upon which the application for review is based will result in summary denial. [20]

Disputed Taxes

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 December 22, 2010.

STATE TAX COMMISSION OFMISSOURI

_____________________________________

W. B. Tichenor

Senior Hearing Officer

w.b.tichenor@stc.mo.gov

Certificate of Service

I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 22^ndday of December, 2010, to:Dunlap Vanice, 32677 Crescent Drive, Gravois Mills, MO 65037, Complainant; Marvin Opie, Prosecuting Attorney, Morgan County Justice Center, Versailles, MO 65084, Attorney for Respondent; Robert Raines, Assessor, 100 East Newton, Versailles, MO 65084; Cathy Daniels, Clerk, 100 East Newton, Versailles, MO 65084; Kathy Francis, Collector, P.O. Box 315, Versailles, MO 65084.

___________________________

Barbara Heller

Legal Coordinator

Barbara.Heller@stc.mo.gov

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

[1] BOE Decision Letter

[2] Section 137.115.1, RSMo.

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

[4] Article X, Sections 4(a) and 4(b), Mo. Const. of 1945

[5] Section 137.115.5, RSMo

[6] 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)

[7] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959)

[8] 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).

[9] Daly v. P. D. George Company, et al, 77 S.W.3d 645, 649 (Mo. App E.D. 2002), citing, Equitable Life Assurance Society v. STC, 852 S.W.2d 376, 380 (Mo. App. 1993); citing, Stephen & Stephen Properties, Inc. v. STC, 499 S.W.2d 798, 801-803 (Mo. 1973).

[10] Hermel, supra.

[11] 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.

[12] 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).

[13] 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).

[14] Hermel, supra.

[15] 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).

[16] See, Cupples-Hesse, supra.

[17] Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975).

[18] 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).

[19] 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).

[20] Section 138.432, RSMo.

Posted in 2010 | Comments Off on Dunlap Vanice v. Raines (Morgan)

John & Beverly Cornish v. Kessinger (Greene)

December 22nd, 2010

State Tax Commission of Missouri

JOHN & BEVERLY CORNISH,)

)

Complainants,)

)

v.) Appeal Number 10-33000

)

RICH KESSINGER, ASSESSOR,)

GREENE COUNTY, MISSOURI,)

)

Respondent.)

DECISION AND ORDER

HOLDING

Decision of the Greene County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.True value in money for the subject property for tax year 2010 is set at $309,900, residential assessed value of $56,430, agricultural assessed value of $1,550, total assessed value of $57,980.Complainants appeared pro se.Respondent appeared by County Counselor Theodore L. Johnson III.

Case heard and decided by Senior Hearing Officer W. B. Tichenor.

ISSUE

Complainant appeals, on the ground of overvaluation, the decision of the Greene County Board of Equalization, which sustained the valuation of the subject property.The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2009.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.Complainants timely appealed to the State Tax Commission from the decision of the Greene County Board of Equalization.A hearing was conducted on December 2, 2010, at the Old Historic Courthouse, Springfield, Missouri.

2.Assessment.The Assessor appraised the residential portion of the property at a value of $297,000, residential assessed value of $56,430 and appraised the agricultural portion of the property at a value of $12,900, agricultural assessed value of $1,550.The Board sustained the assessment.[1]

3.Subject Property.The subject property is located at 6858 W. Elwood Lane, Springfield, Missouri.The property is identified by parcel number 1415100036.

4.Judgment on Pleadings.Appeal was set for hearing at 10:00 a.m., Thursday, December 2, 2010.[2]Case called at time set.Complainants failed to appear by 10:15 a.m.Counsel for Respondent tendered Exhibits A & B[3] and Motion for Judgment on Pleadings.Motion for Judgment on Pleadings granted.Judgment entered against Complainants and in favor of Respondent.Assessment by Respondent, sustained by the Board, is affirmed.

CONCLUSIONS OF LAW AND DECISION

Jurisdiction

Basis of Assessment

Presumption In Appeals

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[7]This presumption is a rebuttable rather than a conclusive presumption.It places the burden of going forward with some substantial evidence on the taxpayer – Complainant.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.[8]Taxpayers’ failure to appear at hearing and produce evidence leaves the presumption of correct assessment by the Board in place.

Standard for Valuation

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:

1.Buyer and seller are typically motivated.

2.Both parties are well informed and well advised, and both acting in what they consider their own best interests.

3.A reasonable time is allowed for exposure in the open market.

4.Payment is made in cash or its equivalent.

5.Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.

6.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.[12]

Complainants Fail To Prove Value

In order to prevail, Complainants 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, 2009.[13]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.”[14]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[15]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.[16]

Complainants failed to appear at hearing and offer an opinion of value and evidence in support of the owners’ opinion of value.Accordingly, they did not meet their burden of proof.

ORDER

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

The assessed value for the subject property for tax year 2010 is set at $57,980, $56,430 – residential and $1,550 – agricultural.

Application for Review

Failure to state specific facts or law upon which the application for review is based will result in summary denial. [17]

Disputed Taxes

The Collector of Greene 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 December 22, 2010.

STATE TAX COMMISSION OFMISSOURI

_____________________________________

W. B. Tichenor

Senior Hearing Officer

w.b.tichenor@stc.mo.gov

Certificate of Service

I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 22^ndday of December, 2010, to:Beverly Cornish, 6858 W. Elwood Lane, Springfield, Mo 65802, 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.

___________________________

Barbara Heller

Legal Coordinator

Barbara.Heller@stc.mo.gov

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

[1] BOE Decision Letter, Exhibit A, Exhibit B, Property Record Card.

[2] Order, dated 11/3/10

[3] Exhibit A – Narrative Statement;Exhibit B – Appraisal of Subject

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

[5] Article X, Sections 4(a) and 4(b), Mo. Const. of 1945

[6] Section 137.115.5, RSMo

[8] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959)

[9] 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).

[11] Hermel, supra.

[13] Hermel, supra.

[14] 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).

[15] See, Cupples-Hesse, supra.

[16] Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975).

[17] Section 138.432, RSMo.

Posted in 2010 | Comments Off on John & Beverly Cornish v. Kessinger (Greene)

Michael Dennis Haynes v. Lemmon (Stoddard)

December 21st, 2010

State Tax Commission of Missouri

MICHAEL DENNIS HAYNES,)

)

Complainant,)

)

v.) Appeal Number 10-88000

)

JODY LEMMON, ASSESSOR,)

STODDARD COUNTY, MISSOURI,)

)

Respondent.)

DECISION AND ORDER

HOLDING

Decision of the Stoddard County Board of Equalization sustaining the assessment made by the Assessor is SUSTAINED.Complainant appeared pro se.Respondent appeared pro se.Case heard and decided by Hearing Officer Maureen Monaghan.

ISSUE

The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2010.

SUMMARY

Complainant appeals the decision of the Stoddard County Board of Equalization, which sustained the valuation of the subject property.The Assessor valued the property as a vacant lot only, as residential property.Complainant contends the subject property consists of a lot and a mobile home, proposed a value of $39,600, assessed value of $7,524.A hearing was conducted on December 2, 2010, at the Stoddard County Courthouse, Bloomfield, Missouri.

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

Complainant’s Evidence

Complainant testified in his own behalf and offered into evidence:

EXHIBIT	DESCRIPTION
A	Property Record Card for the Subject Property
B	Explanation of Contents of his Evidence Folder
C	Letter to Senior HO Tichenor from Taxpayer
D	List of Taxes paid on Subject Property by Year
E	2008 Assessment List Supplementary
F	Fax to Assessor from Randy Turley
G	2000 Assessment Inquiry
H	Photos
I	Affidavit of Robin Hall

Complainant purchased the subject real estate under a collector’s deed in 2006.He testified that he assumed he purchased the mobile home located on the property based upon the amount he paid at the tax sale.The property taxes were owed by “Janie Gromer” who owned the lot and lived in a mobile home on the lot.Sometime in 2010, the mobile home was removed from the property by another party from whom the prior lot owner purchased the mobile home.

Complainant requested the Hearing Officer take judicial notice of Sections 137.115 and 700.111, RSMo involving the conversion of mobile homes from personal property to real property.

Respondent’s Evidence

Respondent testified in his own behalf and offered the following Exhibits, which were received into evidence.

EXHIBIT	DESCRIPTION
1	File Note: 8/13/2008 – Taxpayer wanted to be assessed for land only and Janie Gromer to be assessed for mobile home
2	Letter dated 3-22-08 to Janie Gromer from Mike Haynes
3	2008 Property List
4	2009 Property List

The Assessor testified that he had the mobile home assessed as residential property prior to the tax sale until 2008.In 2008, at the request of the Complainant, he assessed the property as personal property.The letter of March 22, 2008, from Complainant to Jane Gromer states (1) there is confusion as to who owns the mobile home and that (2) Janie Gromer will pay property taxes.The 2008 and 2009 property lists of Jamie Gromer include the mobile home.

FINDINGS OF FACT

1. Jurisdiction over this appeal is proper.Complainant timely appealed to the State Tax Commission from the decision of the Stoddard County Board of Equalization.

2.The subject property is located at 606 W Fordyce Street, Bernie, Missouri.It is identified by map parcel number 29-2.0-004-001-006-002.The Assessor valued the property as a vacant lot.

3.A mobile home was on the property in 2006 and remained on the property until sometime in 2010.

4.Complainant obtained title to the subject property (land) by Collector’s Deed.

5.No title or proof of ownership was presented as to the mobile home and the mobile home is no longer on the lot.

CONCLUSIONS OF LAW AND DECISION

Jurisdiction

Presumption In Appeals

There is a presumption of validity, good faith and correctness of assessment by the CountyBoardof Equalization.[2]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.[3]The evidence presented was not sufficient to rebut the presumption of correct assessment and establish that the value of the property as of January 1, 2009, was to be based upon the land and mobile home.

Valuation of Complainant’s Property

The value of the property owned by Complainant for tax year 2010 is either the value placed on it by the Assessor for the land, or the value for the land and the mobile home as proposed by the Complainant.The Complainant did not contest the true value or appraised value set by the Assessor and sustained by the Board for the land.Complainant’s only argument is that he should be assessed for the land and mobile home.

The Assessor assessed the mobile home and land as residential property prior to the purchase by the Complainant.A mobile home actually used as a dwelling unit is assessed as residential real property for the purpose of taxation.[4]In 2008 and 2009, the Assessor classified the mobile home as personal property and placed it on the assessment list of Janie Gromer.In 2010, the mobile home was removed from the lot presumably by the company from who Janie Gromer purchased the mobile home.

Complainant failed to present substantial and persuasive evidence that he is the owner of the mobile home and therefore failed to present substantial and persuasive evidence that the Assessor did not value the property correctly.

ORDER

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

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 grounds upon which it is claimed the decision is erroneous.Said application mailed 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. [5]

The Collector of Stoddard 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 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 December 21, 2010.

STATE TAX COMMISSION OFMISSOURI

_____________________________________

Maureen Monaghan

Hearing Officer

Certificate of Service

I hereby certify that a copy of the foregoing has been mailed postage prepaid this 21^stday of December, 2010, to:Michael Haynes, 319 Old Aurora Road, Verona, MO 65769, Complainant; Briney Welborn, Prosecuting Attorney, P.O. Box 620, Bloomfield, MO 63825, Attorney for Respondent; Jody Lemmon, Assessor, P.O. Box 307, Bloomfield, MO 63825; James Hendley, Clerk, P.O. Box 110, Bloomfield, MO63825; Carla Moore, Treasurer and Ex Officio Collector; P.O. Box 80, Bloomfield, MO63825.

_________________________________

Barbara Heller

Legal Coordinator

[1] Article X, section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo.

[2] 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).

[3] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).

[4] Section 137.115.6 RSMo.

[5] Section 138.432, RSMo.

Posted in 2010 | Comments Off on Michael Dennis Haynes v. Lemmon (Stoddard)

Erin Gilliland v. Pope (Platte)

December 21st, 2010

State Tax Commission of Missouri

ERIN GILLILAND,)

)

Complainant,)

)

v.) Appeal Number 10-79000

)

LISA POPE, ASSESSOR,)

PLATTE COUNTY, MISSOURI,)

)

Respondent.)

DECISION AND ORDER

HOLDING

Decision of the Platte County Board of Equalization setting value of two parcels at $430,000 (assessed value $81,700) is SET ASIDE.The property is divided into two parcels because of a section line which divides the property.At hearing Complainant asserts a value of $305,000 for the front portion of the property with a value of $25,000 for the back portion of the property.Only the front portion of the property is under appeal.Respondent asserts a value of $450,000 for the two portions of the property.Hearing Officer finds Complainant did not rebut the presumption of correct assessment by the Board but finds that Respondent’s evidence was sufficient to rebut said presumption and, therefore, sets value for the subject parcel at $425,000 ($450,000 for the two parcels).

Complainant appeared pro se.

Respondent appeared by John Shank, Attorney at Law.

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, 2010.

SUMMARY

Complainant appeals, on the ground of overvaluation, the decision of the Platte County Board of Equalization, which set value at $430,000 (assessed value of $81,700, as residential property) for the two parcels.The Assessor determined an appraised value of $450,000 (assessed value of $85,500, as residential property) for the two parcels.Complainant proposed a value of $330,000 (assessed value of $62,700) for the two parcels.A hearing was conducted on November 17, 2010, at the Platte County Administrative Building, Platte City, Missouri.

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

Complainant’s Evidence

Complainant testified that the subject property had been on the market for a year and would not sell.It was foreclosed upon in February, 2010 and Complainant purchased the house at foreclosure sale for $330,000.Complainant asserts that this sets value for the subject property.

Respondent’s Evidence

Respondent placed into evidence the testimony of Ms. Annette Testerman, residential appraiser for Platte County.The appraiser testified as to her appraisal of the subject property.The Appraisal Report, Exhibit 1, of Ms Testerman was received into evidence.Ms. Testermanarrived at an opinion of value for the subject property of $450,000 based upon a sales comparison approach to value.In performing her sales comparison analysis, the appraiser relied upon the sales ofproperties deemed comparable to the subject property.

FINDINGS OF FACT

1.Jurisdiction over this appeal is proper.Complainant timely appealed to the State Tax Commission from the decision of the Platte County Board of Equalization.

2.The subject property is located at 16555 130^th Street, Platte City, Missouri.The property is identified by parcel number 16-1.0-12-400-000-007.000 and parcel number 16-6/-0-13-100-000-002.000.[The parties do not dispute that the value of this second parcel is $25,000].The property consists of a 5.4 acre lot improved by a one and one-half story single-family structure of good quality construction.The house is about seven years old and is in good condition.The residence has a total of nine rooms, which includes four bedrooms, three baths and contains 1,300 square feet of living area.There is a full basement and an attached three-car garage.

4.The properties relied upon by Respondent’s appraiser in performing her appraisal were comparable to the subject property for the purpose of making a determination of value of the subject property. The properties were located within one mile of the subject.Each sale property sold at a time relevant to the tax date.The sale properties were similar to the subject in style, quality of construction, age, condition, room, bedroom and bathroom count, living area, location, site size and other amenities of comparability.

5.The comparables were described as follows:

Comparable 1 (16650 130^th Street, Platte City, Missouri) sold in March 2010 for $520,000.This property consists of a 6.10 acre lot improved by a one and one-half story single-family structure of good quality construction.The house was of similar age to the subject and appears to be in good condition.The residence has a total of 10 rooms, which includes5 bedrooms, 5 baths, and contains 4,688 square feet of living area.There is a full basement, and an attached three-car garage.

Comparable 2 (17345 130^th Terrace, Platte County, Missouri) sold in July, 2009 for $410,000.This property consists of a 0.26 acre lot improved by a one and one-half story single-family structure of good quality construction.The house is four years old and appears to be in good condition.The residence has a total of 8 rooms, which includes 4 bedrooms, 3 baths, and contains 2,861 square feet of living area.There is a full basement and an attached three-car garage.

Comparable 3 (12800 Bellflower Court, Platte City, Missouri) sold in April, 2009 for $549,000.This property consists of a 0.25 acre lot improved by a one and one-half story single-family structure of good quality construction.The house is four years old and appears to be in good condition.The residence has a total of 9 rooms, which includes 4 bedrooms, 3 baths, and contains 3,187 square feet of living area.There is a full basement andan attached three-car garage.

6.The appraiser made various adjustments to the comparable properties for differences which existed between the subject and each comparable.All adjustments appear to be appropriate to bring the comparables in line with the subject for purposes of the appraisal problem.

7.The gross adjustments for Comparable 1 was 12.1%.The gross adjustments for Comparable 2 was 8.2%.The gross adjustments for Comparable 3 was 5.5%.

8.The adjusted sales prices for the comparables calculated to $458,890, $443,630, and $571,000, respectively.The appraiser concluded on a $450,000 value which is consistent with the market for properties such as the subject.

9.Respondent’s evidence met the standard of substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the value of the two parcels, as of January 1, 2010, to be $450,000.

CONCLUSIONS OF LAW AND DECISION

Jurisdiction

Official and Judicial Notice

Agencies shall take official notice of all matters of which the courts take judicial notice.[2]

Courts will take judicial notice of their own records in the same cases.[3]In addition, courts may take judicial notice of records in earlier cases when justice requires[4] or when it is necessary for a full understanding of the instant appeal.[5] Courts may take judicial notice of their own records in prior proceedings involving the same parties and basically the same facts.[6]

Presumptions In Appeals

There is a presumption of validity, good faith and correctness of assessment by the CountyBoardof Equalization.[7]

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.[8]

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.[9]It is the fair market value of the subject property on the valuation date.[10]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:

1.Buyer and seller are typically motivated.

2.Both parties are well informed and well advised, and both acting in what they consider their own best interests.

3.A reasonable time is allowed for exposure in the open market.

4.Payment is made in cash or its equivalent.

5.Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.

6.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.[11]

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.[12]

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.[13]

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.[14]

Methods of Valuation

Missouricourts have approved the comparable sales or market approach, the cost approach and the income approach as recognized methods of arriving at fair market value.[16]

Opinion Testimony by Experts

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.[17]

Respondent’s Burden of Proof

Respondent, when advocating a value different from that determined by the original valuation or a valuation made by the Board of Equalization, must meet the same burden of proof to present substantial and persuasive evidence of the value advocated as required of the Complainant under the principles established by case law.[18]

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, 2010.[19]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.”[20]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[21]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.[22]

Owner’s Opinion of Value

The owner of property is generally held competent to testify to its reasonable market value.[23]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[24]“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.”[25]

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.”[26]

Complainant Fails To Prove Overvaluation

Complainant argues that the only possible indicator of value for the subject property is the price he paid for same at foreclosure sale.However, “The market value means the fair value of the property as between one who wants to purchase and one who wants to sell, not what could be obtained under peculiar circumstances when a greater than its fair price could be obtained, nor its speculative value; not a value obtained from the necessities of another; nor, on the other hand, is it to be limited to that price which the property would bring when forced off at auction under the hammer.It is what it would bring at a fair public sale, when one party wanted to sell and the other wanted to buy.” [27]Although market conditions have certainly softened, it would be a rare day when a foreclosure sale would be considered to represent market value.As articulated by the Journal of Property Tax Assessment and Administration,[28] “when foreclosure-related sales constitute a preponderance of sales in an area or research shows little difference between them and comparable conventional sales, then validated foreclosure related sales can be used without adjustment.”Complainant has failed to demonstrate that foreclosure sales constitute a preponderance of sales in the area.

Respondent Proves Value

Respondent presented substantial and persuasive evidence to establish a fair market value as of January 1, 2010, to be $450,00 for the two residential parcels ($425,000 for the parcel under appeal).Respondent’s appraiser developed an opinion of value relying upon an established and recognized approach for the valuation of real property, the sales comparison or market approach.The sales comparison approach is generally recognized to be the most reliable methodology to be utilized in the valuation of single-family residences.

The adjustments made the Ms. Testerman were consistent with generally accepted guidelines for the appraisal of property of the subject’s type.The adjustments properly accounted for the various differences between the subject and each comparable.The net adjustments to the sale properties fell within a very narrow range from 3.8% to 11.8%.Even the gross adjustments were in a very acceptable range from 5.5% to 12.1%.

ORDER

The assessed valuation for the subject property as determined by the Board of Equalization forPlatte County for the subject tax day is SET ASIDE.

The market value for the subject property for tax year 2010 is set at $425,000 ($450,000 for the two parcels).The assessed value for the subject property for tax year 2010 is set at $80,750 ($85,500 for the two parcels).

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, MO65102-0146, 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. [29]

The Collector of Platte 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 December 21, 2010.

STATE TAX COMMISSION OFMISSOURI

_____________________________________

Luann Johnson

Senior Hearing Officer

Certificate of Service

I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 21^st day of December, 2010, to:Erin Gilliland, 16555 NW 130^th Street, Platte City, MO 64079, Complainant; John Shank, 9800 N.W. Polo, Suite 100, Kansas City, MO 64153, Attorney for Respondent; Lisa Pope, Assessor; 415 Third Street, P.O. Box 20, Platte City, MO 64079; Sandra Krohne, Clerk, 415 Third, P.O. Box 30, Platte City, MO 64079; Donna Nash, Collector; 409 Third, P.O. Box 40, Platte City, MO 64079.

___________________________

Barbara Heller

Legal Coordinator

[1] Article X, section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo.

[2] Section 536.070(6), RSMo.

[3] 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).

[4] – 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)

[5] State ex rel St. Louis Public Service Company v. Public Service Commission, 291 S.W.2d 95, 97 (Mo. banc 1956).

[6] 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).

[7] 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).

[8] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).

[9] 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).

[10] Hermel, supra.

[11] 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.

[12] Section 138.430.2, RSMo.

[13] 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).

[14] 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).

[15] 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).

[16] 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).

[17] 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).

[18] Hermel, Cupples-Hesse, Brooks, supra.

[19] Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, at 897.

[20] 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).

[21] See, Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).

[22] Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975).

[23] 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).

[24] 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).

[25] Carmel Energy at 783.

[26] See, Rossman v. G.G.C. Corp. Of Missouri, 596 S.W.2d 469, 471 (Mo. App. 1980).

[27] Kansas City, W & NWR Co. v. Fisher, 49 Kans 18 (1892).

[28] A Guide to Foreclosure-Related Sales and Verification Procedures, Volume 6, Issue 4 – 2009;pp. 37 – 56; International Association of Assessing Officers and the International Property Tax Institute.

[29] Section 138.432, RSMo 2000.

Posted in 2010 | Comments Off on Erin Gilliland v. Pope (Platte)

Frank & Mary Galati v. Copeland (Franklin)

December 21st, 2010

State Tax Commission of Missouri

FRANK & MARY GALATI,)

)

Complainants,)

)

v.) Appeal Number 10-57005

)

TOM COPELAND, ASSESSOR,)

FRANKLIN COUNTY, MISSOURI,)

)

Respondent.)

DECISION AND ORDER

HOLDING

Decision of the Franklin County Board of Equalization sustaining the assessment made by the Assessor is SUSTAINED.True value in money for the subject property for tax year 2010 is set at $484,260, residential assessed value of $92,009.Complainants appeared pro se. Respondent appeared in person and by County Counselor, Mark S. Vincent.

Case heard and decided by Hearing Officer Maureen Monaghan.

ISSUE

The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2009.

SUMMARY

Complainants appeal, on the ground of overvaluation and misclassification, the decision of the Franklin County Board of Equalization, which sustained the valuation of the subject property.The Assessor determined an appraised value of $484,260, assessed value of $92,009, as residential property.Complainants proposed a value of $400,000, assessed as residential and agricultural.A hearing was conducted on December 14, 2010, at the Franklin County Government Building, Union, Missouri.

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 Franklin County Board of Equalization.

2.Subject Property.The subject property is located at 2830 Highway N, Pacific, Missouri.The property is identified by map parcel number 19-8-27-0-7-020.100.The property consists of a 12.41 acre site.The lot is improved by a one and a half story, single-family structure of good quality construction.The house was built in 2009.The residence has a total of 8 rooms, which includes 3 bedrooms, three and one half baths, and contains 3,184 square feet of living area.There is a partially finished basement and a two-car garage.

3.Complainants’ Evidence.Complainants testified as to their opinion of value.They testified they obtained a $350,000 loan to construct the residence.They said that they use approximately 9 acres of the property to cut hay.

4.Evidence Not Substantial and Persuasive.Complainant’s evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board as to the value or classification of the property.

5.Respondent’s Evidence.Respondent presented the Appraisal Report – Exhibit 1 – and testimony of Angela Johnson, a State Certified General Appraiser.The appraisal determined a value of $523,000 as residential property.

CONCLUSIONS OF LAW AND DECISION

Jurisdiction

Presumptions In Appeals

There is a presumption of validity, good faith and correctness of assessment by the CountyBoardof Equalization.[2]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.[3]Complainants failed to present substantial and persuasive evidence to rebut the presumption of correct assessment.

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.[4]True value in money is defined in terms of value in exchange and not value in use.[5]It is the fair market value of the subject property on the valuation date.[6]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:

1.Buyer and seller are typically motivated.

2.Both parties are well informed and well advised, and both acting in what they consider their own best interests.

3.A reasonable time is allowed for exposure in the open market.

4.Payment is made in cash or its equivalent.

5.Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.

6.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.[7]

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.[8]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.[9] Complainants did not present an opinion of fair market value derived from a recognized appraisal methodology.The conclusion of value presented by Ms. Johnson was based upon the sales comparison approach to value.This approach is recognized as most appropriate for the valuation of owner occupied residential properties.

Complainants’ Burden of Proof– Valuation

In order to prevail, Complainants 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, 2009.[10]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.”[11]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[12]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.[13]

The owner of property is generally held competent to testify to its reasonable market value.[14]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[15]Complainants failed to present evidence to establish that their opinion of value was based upon proper elements and a proper foundation.

The Complainants brought listings sheets which were objected to on the grounds of lack of foundation and hearsay.The objection was sustained.The realtor who prepared the document was not present to testify and be cross-examined.The documents do not provide an opinion of the fair market value of the property under appeal as of January 1, 2009.Furthermore, such evidence does not constitute an appraisal of the subject property under any recognized appraisal methodology. Accordingly, the relevancy of the documents were not established to support a value of $400,000 for the Complainants’ property.

Complainants also presented an appraisal, but the appraiser was not present, and therefore was excluded on the grounds of lack of foundation and hearsay.

Classification

Complainants seek a determination that 9 acres of their site be classified as agricultural.The controlling statute relative to a determination of an agricultural use of real property is Section 137.016.1(1), RSMo.It states in relevant part for the present appeals:

“Agricultural and horticultural property”, all real property used for agricultural purposes and devoted primarily to the raising and harvesting of crops; …”

Complainant claims that for tax year 2010 the property under appeal met this statutory definition.In order for Complainant’s properties to be classified as agricultural Complainant must have established by substantial and persuasive evidence that the properties were “used for agricultural purposes and devoted primarily to the raising and harvesting of crops.”The asserted use for agricultural purposes consists solely of their testimony that they cut hay in 2010.The Complainants did not provide photographs or any other evidence of agricultural activity. Complainant’s evidence falls short of establishing that the land was devoted primarily to the raising and harvesting of crops.

The Respondent’s appraiser testified that she sent documents requesting information regarding any agricultural activity and none of the documents were returned.She also inspected the property in September 2010 and saw no signs of agricultural activity.

Respondent’s Appraisal

Angela Johnson, a State Certified General Appraiser, testified on behalf of the Assessor.She appraised the property using the cost and the sales comparison approach, relying primarily on the sales comparison approach.She determined the value of the property to be $523,000.The Assessor had set the value at $484,260.

Conclusion

The Complainants’ contend the property should be valued at $400,000 based upon the market value of the improvement and an agricultural valuation for the 9 acres.The certified appraiser valued the property at $523,000.Sales Comparable 4 is within 3.64 miles of the subject property.Comparable 4 is on a 5.6 acres tract.The appraiser made an adjustment of $25,000 to Comparable 4 to account for less land.In reviewing the adjustments made for the additional land and with the appraisal on the improvements to the property, it appears that even if the 9 acres were classified as residential, the assessed valuation of the subject property would exceed the valuation originally determined by the assessor.The Assessor testified that they were not asking the Hearing Officer for a higher valuation.

ORDER

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

The assessed value for the subject property for tax year 2010 is set at $92,009, as residential property.

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.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, MO65102-0146, 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. [16]

The Collector of Franklin 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.If no Application for Review is filed, the Collector, as well as the collectors of all affected political subdivisions, shall disburse the taxes in accord with the decision on the underlying assessment in this appeal.

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 December 21, 2010.

STATE TAX COMMISSION OFMISSOURI

_____________________________________

Maureen Monaghan

Hearing Officer

Certificate of Service

I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 21^stday of December, 2010, to:Frank Galati, 2832 Hwy. N, Pacific, MO 63069, Complainant; Mark Vincent, Franklin County Counselor, P.O. Box 439, Union, MO 63084, Attorney for Respondent; Tom Copeland, Assessor, 400 E. Locust, Suite 105A, Union, MO 63084; Debbie Door, Clerk, Franklin County Courthouse, 400 E. Locust, Suite 201, Union, MO 63084; Linda Emmons, Collector; Franklin County Courthouse, 400 E. Locust, Suite 103, Union, MO 63084.

___________________________

Barbara Heller

Legal Coordinator

[1] Article X, section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo.

[3] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).

[4] 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).

[5] Daly v. P. D. George Company, et al, 77 SW3d 645, 649 (Mo.App E.D. 2002), citing, Equitable Life Assurance Society v. STC, 852 SW2d 376, 380 (Mo.App. 1993); citing, Stephen & Stephen Properties, Inc. v. STC, 499 S.W.2d 798, 801-803 (Mo. 1973).

[6] Hermel, supra.

[7] 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.

[8] 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).

[9] 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).

[10] Hermel, supra.

[11] 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).

[12] See, Cupples-Hesse, supra.

[13] Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975).

[14] 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).

[15] 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).

[16] Section 138.432, RSMo.

Posted in 2010 | Comments Off on Frank & Mary Galati v. Copeland (Franklin)

Carl Johnson v. Howard (Clinton)

December 21st, 2010

State Tax Commission of Missouri

CARL JOHNSON,)

)

Complainant)

)

v.) Appeal Number 10-51501

)

JERRY HOWARD, ASSESSOR,)

CLINTON COUNTY, MISSOURI,)

)

Respondent.)

DECISION AND ORDER

HOLDING

Decision of the Clinton County Board of Equalization setting value of the subject property at $79,600 (assessed value $15,120) is AFFIRMED.At hearing Complainant asserted a value of $40,000 (assessed value $7,598).Hearing Officer finds Complainant did not rebut the presumption of correct assessment by the Board of Equalization. Complainant appeared pro se.

Respondent appeared by Jayson Watkins, Assistant Prosecuting Attorney.

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, 2010.

SUMMARY

Complainant appeals, on the ground of overvaluation, the decision of the Clinton County Board of Equalization, which set value at $79,650 (assessed value of $15,120, as residential property).The Assessor asks that the Commission approve the Board value.Complainant proposes a value of $40,000 (assessed value of $7,598) based upon a purchase price of $33,000 at foreclosure sale in October, 2008.A hearing was conducted on November 30, 2010, at the Clinton County Courthouse in Plattsburg, Missouri.

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

Complainant’s Evidence

Complainant testified that he purchased the subject property at foreclosure sale in October of 2008 for the price of $33,000.Complainant presented MLS listings demonstrating sales of similar properties for $19,000, $17,900 and $18,000 in 2010.Complainant testified that he did not believe these sales to have been foreclosure sales.No appraisal was presented and no adjustments were made to the various proposed comparables for market reaction to areas of significant variation.

Respondent’s Evidence

Respondent presented the property record card for the subject property showing a depreciated value for the subject improvements at $62,400 with a lot value of $17,200 for a depreciated value of the subject property of $79,600.

FINDINGS OF FACT

1.Jurisdiction over this appeal is proper.Complainant timely appealed to the State Tax Commission from the decision of the Clinton County Board of Equalization.

2.The subject property is located at 737 S. Chestnut Street, Cameron, Missouri.The property is identified by parcel number 26-01-06-0-23-003-027-013-000.The property consists of a 113 x 156 foot lot improved by two-story single-family structure of average condition and quality.The residence has three bedrooms and one bath and contains a base area of 1,162 square feet and an adjusted area of 1,903 square feet.The improvements were built in 1923.

3.Complainant’s evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2010, to be $40,000, (assessed value $7,598) as proposed.Complainant presented no evidence tending to demonstrate that Respondent’s cost approach to value was improperly calculated.Further, Complainant presented insufficient evidence to allow the hearing officer to make a determination as to the comparability of the proposed comparable sales.Even the purchase price of the subject property, standing alone, is insufficient to prove overvaluation.For the reasons set forth below, prices paid at foreclosure sales do not automatically determine market value for a property under appeal.

CONCLUSIONS OF LAW AND DECISION

Jurisdiction

Official and Judicial Notice

Agencies shall take official notice of all matters of which the courts take judicial notice.[2]

Presumptions In Appeals

There is a presumption of validity, good faith and correctness of assessment by the CountyBoardof Equalization.[7]

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.[9]It is the fair market value of the subject property on the valuation date.[10]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:

1.Buyer and seller are typically motivated.

2.Both parties are well informed and well advised, and both acting in what they consider their own best interests.

3.A reasonable time is allowed for exposure in the open market.

4.Payment is made in cash or its equivalent.

5.Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.

6.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.[11]

Duty to Investigate

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.[13]

Trier of Fact

Methods of Valuation

Missouricourts have approved the comparable sales or market approach, the cost approach and the income approach as recognized methods of arriving at fair market value.[16]

Opinion Testimony by Experts

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, 2010.[18]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.”[19]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[20]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.[21]

Owner’s Opinion of Value

The owner of property is generally held competent to testify to its reasonable market value.[22]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[23]“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.”[24]

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.”[25]

Complainant Fails To Prove Overvaluation

Complainant argues that the price paid at foreclosure sale is relevant in determining value for this property.However, “[t]he market value means the fair value of the property as between one who wants to purchase and one who wants to sell, not what could be obtained under peculiar circumstances when a greater than its fair price could be obtained, nor its speculative value; not a value obtained from the necessities of another; nor, on the other hand, is it to be limited to that price which the property would bring when forced off at auction under the hammer.It is what it would bring at a fair public sale, when one party wanted to sell and the other wanted to buy.”[26]Although market conditions have certainly softened, it would be a rare day when a foreclosure sale would be considered to represent market value.As articulated by the Journal of Property Tax Assessment and Administration,[27] “when foreclosure-related sales constitute a preponderance of sales in an area or research shows little difference between them and comparable conventional sales, then validated foreclosure related sales can be used without adjustment.”Complainant has failed to demonstrate that foreclosure sales constitute a preponderance of sales in the area.

ORDER

The assessed valuation for the subject property as determined by the Board of Equalization for Clinton County for the subject tax day is SUSTAINED.

Failure to state specific facts or law upon which the appeal is based will result in summary denial. [28]

The Collector of Clinton 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 December 21, 2010.

STATE TAX COMMISSION OFMISSOURI

_____________________________________

Luann Johnson

Senior Hearing Officer

Certificate of Service

I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 21^stday of December, 2010, to:Carl Johnson, 10399 NW Hwy. 36, Cameron, MO 64429, Complainant; Bill Burris, Prosecuting Attorney, P.O. Box 285, Plattsburg, MO 64477, Attorney for Respondent; Jerry Howard, Assessor, P.O. Box 436, Plattsburg, MO 64477; Mary Blanton, Clerk, P.O. Box 245, Plattsburg, MO 64477; Sharon Cockrum, Collector, P.O. Box 282, Plattsburg, MO 64477.

___________________________

Barbara Heller

Legal Coordinator

Contact Information for State Tax Commission:

Missouri – State Tax Commission

P.O. Box 146

301 W. High Street, Room 840

Jefferson City, MO 65102

573-751-2414

573-751-1341 FAX

[1] Article X, section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo.

[2] Section 536.070(6), RSMo.

[3] 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).

[4] 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)

[5] State ex rel St. Louis Public Service Company v. Public Service Commission, 291 S.W.2d 95, 97 (Mo. banc 1956).

[6] 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).

[8] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).

[9] 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).

[10] Hermel, supra.

[12] Section 138.430.2, RSMo.

[15] 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).

[18] Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, at 897.

[19] 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).

[20] See, Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).

[21] Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975).

[22] 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).

[23] 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).

[24] Carmel Energy at 783.

[25] See, Rossman v. G.G.C. Corp. of Missouri, 596 S.W.2d 469, 471 (Mo. App. 1980).

[26] Kansas City, W & NWR Co. v. Fisher, 49 Kans 18 (1892).

[27] A Guide to Foreclosure-Related Sales and Verification Procedures, Volume 6, Issue 4 – 2009;pp. 37 – 56; International Association of Assessing Officers and the International Property Tax Institute.

[28] Section 138.432, RSMo 2000.

Posted in 2010 | Comments Off on Carl Johnson v. Howard (Clinton)

K. Llewellyn McGhee Ministries v. Brooks (SLCO)

December 21st, 2010

State Tax Commission of Missouri

K. LLEWELLYN McGHEE MINISTRIES,)

)

Complainant,)

)

v.) Appeal Number 09-14680

)

MICHAEL BROOKS,)

ACTING ASSESSOR,)

ST. LOUIS COUNTY, MISSOURI,)

)

Respondent.)

DECISION AND ORDER

HOLDING

Assessment by Assessor that subject property was not tax exempt sustained by the St. Louis County Board of Equalization is AFFIRMED.Hearing Officer finds subject property to not be exempt under Section 137.100(5).

Complainant appeared by Counsel, Scott Sherman, Clayton, Missouri.

Respondent appeared by Counsel, Stephanie Hill, Assistant County Counselor.

ISSUE

Complainant appeals the decision of the St. Louis County Board of Equalization which sustained the Assessor’s assessment of the Complainant’s personal property.The Commission takes this appeal to determine whether the subject property (three automobiles) is exempt from taxation under Section 137.100(5), RSMo for the tax year 2009, specifically if the subject personal property is actually and regularly used exclusively for religious worship or if the property meets the requirements of the Franciscan Tertiary case.[1]The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.

FACTS

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.A hearing[2] was conducted on October 5, 2010, at the St. Louis County Government Center, Clayton, Missouri.

2.Assessment.The Assessor assessed the Complainant’s personal property at a total assessed value as personal property for 2009 at $14,790.The Board of Equalization sustained the assessment and declined to exempt Complainant’s property from ad valorem taxes.

3.BOE Appeal.Petition for exemption of personal property was filed before the St. Louis County Board of Equalization on July 13, 2009, on the property under account B00321808 on the ground of religious use.Hearing was held on October 15, 2009.The Board issued its Decision Letter on October 20, 2009, denying the requested exemption.[3]

4.Subject Property.The property that is the subject of this appeal is identified in the Assessor’s records for tax year 2009 as Account No. B00321808.The property consists of three automobiles: (1) 1995 Jaguar XJS-VIN-SAJHX176SC722864 – Assessed Value $1,020; (2) 2006 Infiniti QX56-VIN-5N3AA08C66N814278 – Assessed value $7,830; and (3) 2007 Toyota Avalon-4T1BK36B77U219677 – Assessed Value $5,940.[4]The automobiles are titled in the name of Global Village Ministries – K. Llewellyn McGhee, the predecessor corporation to the Complainant.[5]The property address for the automobiles is: 6465 Hadden Bay Drive, Florissant, Missouri, which is the residence address for the McGhees,[6] and the address for Complainant.[7]

5.Complainant’s Evidence.Complainant filed and exchanged the following exhibits, which were received into evidence.

EXHIBIT	DESCRIPTION
A	Certificate of Recognition of Orders – K. Llewellyn McGhee
B	License to Preach – K. Llewellyn McGhee
C	Certificate of An Itinerant Elder – K. Llewellyn McGhee
D	Endorsement – Army National Guard Chaplain – K. Llewellyn McGhee
E	Certificate of Incorporation – Global Village Ministries-K. Llewellyn McGhee
F	Articles of Incorporation, Bylaws, Financial History – Global Village Ministries
G	Certificate of Amendment of Nonprofit Corporation
H	Diploma for Doctor of Ministry – K. Llewellyn McGhee
I	IRS Form 4361-Application for Exemption – Kevin Llewellyn McGhee
J	Mo Sales/Use Tax Exemption, Expired 5/13/02
K	Mo Sales/Use Tax Exemption, Effective Date: 7/11/02
L	IRS Income Tax Review Letter – Tax Year 2006
M	2007 & 08 St. L. County Personal Property Adjusted Tax Bills – Paid
N	2007 & 08 St. L. County Personal Property Adjusted Tax Bills – with copy of check
O	2007 St. L. County Personal Property Tax Bill
P	2007 St. L. County Personal Property Tax Bill
Q	Petition for Exemption Personal Property – St. L. Co. Board of Equalization
R	Notice of Decision of BOE
S	Complaint for Review of Assessment
T	IRS Form 4361-Application for Exemption – Michelle McClendon McGhee
U	Member in Full Connection – Michelle M. McGhee
V	Transcript of recorded statement – Dr. K. Llewellyn McGhee[8]
W	Transcript of recorded statement – Michelle McGhee[9]

6.Respondent’s Evidence.Respondent filed and exchanged the following exhibits, which were received into evidence.

EXHIBIT	DESCRIPTION
1	Notice of Board of Equalization Hearing
2	Petition for Exemption of Personal Property
3	Field Inspection Report
4	Notice of Decision of BOE
5	Written Direct Testimony-Joseph Craven
6	Written Direct Testimony-Shelby Locke

7.Not-For-Profit Corporation.The Complainant is a not-for-profit corporation under the laws of the State of Missouri.The incorporators of the corporation were: K. Llewellyn McGhee and Michelle M. McGhee.The corporation has two directors: K. Llewellyn McGhee and Michelle McClendon McGhee.The officers of the corporation are: President and Treasurer – K. Llewellyn McGhee and Vice-President and Secretary – Michelle M. McGhee.The initial Registered Agent of the corporation was K. Llewellyn McGhee.[10]The McGhee’s are husband and wife.[11]

No certificate of good standing for 2009 and 2010 or copy of the last annual registration report was offered into evidence.It is assumed, but not found, that the corporation was, as of January 1, 2009, and on the date of hearing, in good standing with the Office of the Secretary of State of Missouri and is, and was on January 1, 2009, and on the date of hearing, a legal entity under the laws of the state of Missouri, no evidence to the contrary having been presented.

Complainant’s status as a not-for-profit corporation does not establish that the subject motor vehicles are exempt from taxation under Section 137.100(5).

8.Corporate Purposes.The Complainant is organized for the following purposes:“to spread the Word of God to St. Louis and to the world by our words and our deeds, and it is organized exclusively and is to be operated exclusively for religious, charitable, educational and scientific purposes, all within the meaning of Section 501(c)(3) of the Internal Revenue Code.[12]

Complainant’s corporate purposes do not establish that the subject motor vehicles are exempt from taxation under Section 137.100(5).

9.501(c)(3) Status.No exhibit was filed establishing that the Internal Revenue Service of the United States has recognized Complainant as a 501(c) (3) entity.No exhibit was filed establishing that Complainant comes under the provisions of any Internal Revenue Service determination that Complainant is a subsidiary organization under an existing 501(c) (3) organization.

Status as a 501(c) (3) entity or as a subsidiary organization under a 501(c) (3) entity does not establish that the subject motor vehicles are exempt from taxation under Section 137.100(5).

10.Sales and Use Tax Exemption.The Complainant is exempt from Missouri Sales and Use Tax on purchases if conducted within the organization’s exempt religious functions and activities.The exemption is not an exemption from personal property tax.[13]

Exemption from Missouri Sales and Use Tax does not establish that the subject motor vehicles are exempt from taxation under 137.100(5).

11.Form 4361 Application for Exemption.K. Llewellyn McGhee and Michelle M. McGhee each filed a Form 4361[14] with the Internal Revenue Service.Both have been approved for exemption from self-employment tax on ministerial earnings.[15]

Exemption from self-employment tax on ministerial earnings does not establish that the subject motor vehicles are exempt from taxation under 137.100(5).

12.Ministerial Positions.K. Llewellyn McGhee holds the following ministerial designations:Elder – African Methodist Episcopal Church; Elder – The United Methodist Church,[16] License to Preach – African Methodist Episcopal Church,[17] Itinerant Elder – African Methodist Episcopal Church,[18] Ecclesiastical Endorsement by the General Board of Higher Education and Ministry of The United Methodist Church to serve as an Army National Guard Chaplain,[19] and Doctor of Ministry from St. Paul School of Theology-Kansas City, Missouri.[20]Dr. Rev. McGhee is a Lieutenant Colonel in the United States Army serving as a chaplain.[21]

Michelle M. McGhee holds the ministerial designation of Member in Full Connection in The United Methodist Church,[22] Masters of Divinity – Eden Theological Seminary, and pastor of The Village Church of St. Louis and Christ Community United Methodist Church.She is an employee of The United Methodist Church.

The ministerial designations or positions that Dr. Rev. McGhee and Pastor McGhee hold do not establish that the subject motor vehicles are exempt from taxation under Section 137.100(5).

13.2006 Income Tax Review.The results of the review of the examination of the tax return for 2006 of Kevin L & Michelle M McGhee[23] was not connected to any tax issues related to Complainant and therefor has no relevance to the issue of whether the subject motor vehicles are exempt from taxation under 137.100(5).

14.Religious Activity of Complainant.No evidence was presented to establish and substantiate any religious activity by Complainant.Complainant does not exist as a church.Complainant is not a subsidiary of any religious organization.No evidence was presented to establish in what manner Complainant is carrying out its corporate purpose.

15.No Religious Use of Subject Property.No evidence was presented to establish the primary use of the subject automobiles was connected to any religious activity or purpose of Complainant.The primary use of the automobiles is to provide personal transportation for Dr. Rev. McGhee’s and Rev. Mrs. McGhee.

CONCLUSIONS OF LAW

Jurisdiction

The Commission has jurisdiction to hear this appeal and correct any assessment shown to be unlawful, unfair, arbitrary or capricious.[24]

Burden of Proof

Complainant has the burden to present substantial evidence to rebut the presumption of correct assessment by the Board of Equalization.[25]In order to meet this burden in an appeal seeking exemption from taxation, the Complainant must meet the substantial burden to establish that the property falls within an exempted class under the provisions of Section 137.100.[26] It is well established that taxation is the rule and exemption from taxation is the exception.Exemption is not favored in the law.[27]Complainant seeks exemption of its property from taxation pursuant to Section 137.100(5):

The following subjects are exempt from taxation for state, county or local purposes:

(5) All property, real and personal, actually and regularly used exclusively for religiousworship and not held for private or corporate profit, … .

Complainant’s substantial burden of proof has not been met in the present case.

The Courts have interpreted the phrase “used exclusively” as referring to the primary and inherent use of the property, as opposed to a mere secondary and incidental use.[28]The use of the property being appealed is the main focus of any claim for exemption.[29]In the present case, there is no evidence to establish that Complainant actually carries out any religious activity.It is not engaged in religious worship since Complainant is not a church or temple or other place of

worship.There is no evidence upon which the Hearing Officer can find any work or ministry of Complainant to carry out its corporate purpose.

No financial records were produced to demonstrate any source or amount of contributions to the Complainant in recent years, i.e. 2008, 2009, 2010.No financial records were provided to establish how the funds received (if any) by Complainant were expended to either carry out the corporate purpose of K. Llewellyn McGhee Ministries or to conduct some form of religious worship/ministry.No corporate records were submitted to show what, if any, persons are actually employed by Complainant.No corporate records or individual records of Dr. Rev. or Mrs. Rev. McGhee were tendered establishing the mileage driven and for what purposes during any recent calendar year.

The position of Dr. Rev. and Mrs. Rev. McGhee that they minister 24/7 does not establish that there is no personal use of the subject motor vehicles.Use of a car to drive back and forth to work does not constitute a religious use, even if the individual is a Chaplin in the United States military.Nor does driving a car to one’s place of employment as a pastor, that is to the church to conduct services constitute a religious use.In both instances, the automobile is simply being used to get the employee to work.

Even though the McGhees are of the belief that they are doing ministry all the time, when they drive to pick up the cleaning, buy groceries, go out for a meal at a restaurant, or do any of the things everyone does as daily activities requiring transportation they are engaged in personal use of the automobiles to simply provide personal transportation.The record fails to establish by substantial and persuasive evidence that the primary use of the three automobiles is for a religious use.The best the Hearing Officer can conclude is that the automobiles are simply the personal vehicles of Mr. and Mrs. McGhee who happen to be Christian ministers.This does not meet the statutory standard to grant exemption from ad valorem taxes on the motor vehicles.

Franciscan Tertiary Test

An examination of the exemption issue under the Franciscan Tertiary Test provides the same conclusion that the property under appeal is not exemption under Section 137.100 (5).In meeting its burden of proof that the subject property is used “exclusively for … purposes purely charitable, and not held for private or corporate profit….” Complainant must meet the three prong test set forth by the Missouri Supreme Court in Franciscan Tertiary Province v. STC.[30]The court said:

The first prerequisite for property to be exempt as charitable under §137.100 is that it be owned and operated on a not-for-profit basis.It must be dedicated un-conditionally to the charitable activity in such a way that there will be no profit, presently or prospectively, to individuals or corporations.Any gain achieved in use of the building must be devoted to attainment of the charitable objectives of the project…. [A]n exemption will not be granted covering property which houses a business operated for the purpose of gaining a profit, even though it is turned over to a parent organization to be used for what are admittedly independently…charitable purposes.

…

Another prerequisite for religious exemption is that the dominant use of the property must be for the benefit of an indefinite number of people, for thepurpose, as expressed in Salvation Army, of “… bringing their hearts under the influence of … religion … .”[31]Thus it is required that there be the element of direct or indirect benefit to society in addition to and as a result of the benefit conferred on the persons directly served by the religious activity.[32]

The three tests to be met under Franciscan are:

1.Property must be owned and operated on a not-for-profit basis;

2.Property must be actually and regularly used exclusively for a religious purpose; and

3.Property must be used for the benefit of an indefinite number of persons and for society in general, directly or indirectly.

The three automobiles are titled in Complainant’s name, therefore they are owned on a not for profit basis.Since the cars are not being leased out apparently, they are not used to make money, although a benefit is conferred on the two officers of the corporation by providing transportation for them.The automobiles are not actually and regularly used exclusively for a religious purpose to carry on any work of Complainant.There is no actual work of Complainant based on the evidentiary record in this appeal.All that can be concluded regarding the Complainant is that it exists only on paper and carries on no actually activity, work or ministry.

The primary use of the vehicles is not for any religious purpose, but rather for personal use of the two corporate officers.There is no benefit to an indefinite number of people in how the cars are used.There is only a benefit to the McGhees by providing three automobiles for their personal use.Society is not benefit directly or indirectly by the use for personal transportation of the three cars which are the subject of this appeal.

Complainant failed to establish by substantial and persuasive evidence that the subject personal property is exempt from ad valorem taxation under 137.100 (5) and the Franciscan Test.Accordingly, the request for exemption must be denied.

ORDER

The assessment of the subject property made by the Assessor and sustained by the Board of Equalization for St. Louis County for the subject tax day is AFFIRMED.

The subject property is not exempt from ad valorem taxation.

Complainant 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.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. [33]

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.If no application for review is filed the disputed taxes shall be disbursed to the various taxing jurisdictions.

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 December 21, 2010.

STATE TAX COMMISSION OF MISSOURI

_________________________________

W. B. Tichenor

Senior Hearing Officer

Certificate of Service

I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 21^stday of December, 2010, to:Scott Sherman, 231 S. Bemiston, Suite 910, Clayton, MO 63105, Attorney for Complainant; Stephanie Hill, Assistant County Counselor, Attorney for Respondent, County Government Center, 41 South Central Avenue, Clayton, MO 63105; Michael Brooks, Acting Assessor, County Government Center, 41 South Central Avenue, Clayton, MO 63105; John Friganza, Collector, County Government Center, 41 South Central Avenue, Clayton, MO 63105.

___________________________

Barbara Heller

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

[1] Franciscan Tertiary Province v. STC, 566 S.W.2d 213, 223-224 (Mo. banc 1978).

[2] Commission Exhibit C-1 – List of Complainant’s exhibits and Exhibit R-1 – List of Respondent’s exhibits were received into evidence at the evidentiary hearing, rather than read into the record the list of exhibits.

[3] Exhibits 1, 2, 3, 4 & 5

[4] Exhibit 6; Exhibit N

[5] Exhibits G, N, O & P

[6] Exhibits 1, 2, 3, & 4, Exhibits I, L & T and Complaint for Review of Assessment.

[7] Exhibits M, N, O & P

[8] Written Direct Testimony – Dr. K. Llewellyn McGhee

[9] Written Direct Testimony – Michelle McGhee

[10] Exhibits E,F & G

[11] Testimony at hearing

[12] Exhibit F – Paragraph 7

[13] Exhibit K

[14] Form 4361 – Application for Exemption from Self-Employment Tax for Use by Ministers, Members of Religious Orders and Christian Science Practitioners.

[15] Mr. McGhee’s approval for exemption was granted on December 10, 1996.Mrs. McGhee’s approval for exemption was granted on August 10, 2009.

[16] Exhibit A

[17] Exhibit B

[18] Exhibit C

[19] Exhibit D

[20] Exhibit H

[21] Exhibit V, pages 2 & 9

[22] Exhibit U

[23] Exhibit L

[24] Article X, Section 14, Missouri Constitution of 1945; Sections 138.430, 138.460(2), RSMo.

[25] Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, 895 (Mo. banc 1978).

[26] State ex rel. Council Apartments v. Leachman, 603 S.W.2d 930, 931 (Mo. 1980).

[27](See, Missouri Church of Scientology v. STC, 560 S.W.2d 837, 844 (Mo. banc 1977); CSCEA v. Nelson, 898 S.W.2d 547, 548 (Mo. banc 1995), citing Scientology).

[28] CSCEA v. Nelson, 898 S.W.2d 547, 549 (Mo. banc 1995); Pentecostal Church of God v. Hughlett, 601 S.W.2d 666, 668 ( Mo. App. 1980); Community Memorial Hospital v. City of Moberly/Missouri U. Meth. Retire. Homes v. STC, 522 S.W.2d 745, 751 (Mo. Div 2, 1975); Salvation Army v. Hoehn et al, 188 S. W. 2d 826, 830 (Mo. banc 1945)

[29] Id.

[30] 566 S.W.2d 213, 223-224 (Mo. banc 1978);

[31] Salvation Army – 188 S.W.2d at 830

[32] Id. At 224.

[33] Section 138.432, RSMo.

Posted in 2010 | Comments Off on K. Llewellyn McGhee Ministries v. Brooks (SLCO)

Van Lam v. Brooks (SLCO)

December 8th, 2010

State Tax Commission of Missouri

VAN LAM,)

)

Complainant,)

)

v.) Appeal Number 09-10641

)

MICHAEL BROOKS, ACTING ASSESSOR,)

ST. LOUIS COUNTY,MISSOURI,)

)

Respondent.)

DECISION AND ORDER

HOLDING

Decision of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor is SET ASIDE.True value in money for the subject property for tax years 2009 and 2010 is set at $300,000, residential assessed value of $57,000.Complainant appeared pro se.Respondent appeared by Associate County Counselor, Paula J. Lemerman.

Case heard and decided by Senior Hearing Officer W. B. Tichenor.

ISSUE

Complainant appeals, on the ground of overvaluation, the decision of the St. Louis County Board of Equalization, which sustained the valuation of the subject property.The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2009.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.A hearing was conducted on October 5, 2010, at the St. LouisCountyGovernmentCenter,Clayton,Missouri.

2.Assessment.The Assessor appraised the property at $406,800, a residential assessed value of $77,290.The Board sustained the assessment.[1]

3.Subject Property.The subject property is located at 2205 Babler Valley Lane, Wildwood, Missouri.The property is identified by locator number 23X410113.The property consists of 3.08 acre lot improved by a one-story vinyl and brick sided frame constructed house with full basement, three-car attached frame garage, covered front porch, wood deck, two patios, paved walkway and a paved driveway leading to the side entry garage.The improvements are considered to be good quality construction.The home was built in 1990 and the improvements are in fair physical condition due to deferred maintenance involved with repairs and replacement items.The roof and exterior trim paint show age and wear, several small damaged areas in the exterior vinyl siding, the blacktop driveway shows age and lack of preservation sealant.There is overgrown landscaping, shrubs and weeds.There is aged interior paint and carpeting.The residence has a total of six rooms above grade that includes two bedrooms, two full and a half bath.It contains 2,404 square feet of living area.The full basement is approximately 2,366 square feet and has approximately 1,500 square feet of finished area with a full bath.

4.Complainant’s Evidence.Complainant testified in her own behalf and gave her opinion of the fair market value as of January 1, 2009, to be $300,000 based upon her purchase on June 1, 2009, from the Federal Home Loan Mortgage Corporation (FHLMC or Freddie Mac).Sepid M. Salem, a cousin of Complainant also testified relative to the Complainant’s purchase of the property.Exhibit A – Settlement Statement on Complainant’s purchase and Exhibit B – Unexecuted Residential Sales Contract[2] were received into evidence.There was no evidence of new construction and improvement from January 1, 2009, to January 1, 2010, therefore the assessed value for 2009 remains the assessed value for 2010.[3]

Complainant’s evidence was substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2009, to be $300,000.[4]

5.Listing, Transfer and Sale History of Subject.[5]The subject property was listed in June of 2007 for $499,000.In April 2008, the asking price was reduced to $479,000 and later that year reduced to $449,900.In September 2008, the listing price was reduced to $399,999.In January 2009, the property was transferred as a result of foreclosure for $296,526.The FHLMC listed the property in February 2009 for $318,900.On February 20, 2009, a sale contract was presented to FHLMC for a purchase price of $290,000.The offer was not accepted.In June 2009, Complainant purchased the property from FHLMC for $300,000.The foregoing rebuts evidence presented by Respondent that on January 1, 2009, the property under appeal would have sold for $370,000.

6.Respondent’s Evidence.Respondent presented the appraisal report[6] and testimony of Arthur Froeckmann, State Certified Residential Real Estate Appraiser.Mr. Froeckmann arrived at a conclusion of fair market value of $370,000 relying on a sales comparison approach to value.The four properties relied upon by Respondent’s appraiser were comparable to the subject property for the purpose of making a determination of value of the subject property. The properties were located within less than three-quarters of a mile from the subject.Each sale property sold at a time relevant to the tax date of January 1, 2009.The sale properties were similar to the subject in style, quality of construction, age, condition, room, bedroom and bathroom count, living area, location, site size and other amenities of comparability. Exhibit 1 was received into evidence.

The appraiser made various adjustments to the comparable properties for differences which existed between the subject and each comparable.All adjustments were appropriate to bring the comparables in line with the subject for purposes of the appraisal problem.Absent the evidence on the prior attempts to sell the subject property and on its own, Respondent’s evidence would have met the standard of substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the value of the subject, as of January 1, 2009, to be $370,000.

CONCLUSIONS OF LAW AND DECISION

Jurisdiction

Basis of Assessment

in money.[9]In an overvaluation appeal, true value in money for the property being appealed must be determined based upon the evidence on the record.

Presumption In Appeals

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[10]This presumption is a rebuttable rather than a conclusive presumption.It places the burden of going forward with some substantial evidence on the taxpayer – Complainant.The presumption of correct assessment is rebutted when the taxpayer or the Respondent, when advocating a value different than the Board’s value 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.[11]When some substantial evidence is produced by the Complainant or Respondent, “however slight”, the presumption disappears and the Hearing Officer, as trier of facts, receives the issue free of the presumption.[12]Complainant’s evidence was substantial and persuasive to rebut the presumption of correct assessment by the Board.The case is decided free of the presumption.

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.[13]True value in money is defined in terms of value in exchange and not value in use.[14]It is the fair market value of the subject property on the valuation date.[15]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:

1.Buyer and seller are typically motivated.

2.Both parties are well informed and well advised, and both acting in what they consider their own best interests.

3.A reasonable time is allowed for exposure in the open market.

4.Payment is made in cash or its equivalent.

5.Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.

6.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.[16]

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.[17]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.[18] Evidence of the actual sales price of property is admissible to establish value at the time of an assessment, provided that such evidence involves a voluntary purchase not too remote in time.The actual sale price is a method that may be considered for estimating true value.[19]Complainant presented evidence of her voluntary purchase of the property at a time relevant to the valuation date of January 1, 2009.

Complainant Proved Value of $300,000

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, 2009.[20]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.”[21]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[22]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.[23]

Owner’s Opinion of Value

The owner of property is generally held competent to testify to its reasonable market value.[24] The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[25]In this case, the owner’s opinion of the fair market value of $300,000 is based upon her purchase of the property on

June 1, 2009, from the Federal Home Loan Mortgage Corporation.This opinion of value is not based upon either improper elements or an improper foundation.The owner’s opinion and supporting evidence provides sufficient probative value to meet the required standard for substantial and persuasive evidence.

Sale After Foreclosure

The fact that Complainant purchased the property under appeal some six months after it was taken back in foreclosure, does not nullify the purchase as meeting the Standard for Valuation.A foreclosure sale may in fact be valid evidence of the market value of a given

property.[26]The purchase in June 2009 was not a foreclosure sale.It was a sale after foreclosure had occurred, with the property continuing to be on the open market.

The Standard for Valuation requires a willing buyer and seller.That exists under the facts in this case.Simply because the seller was Freddie Mac does not render this sale defective.In point of fact the listing history on this property clearly and irrefutably establishes that as late as three months prior to the 2009 valuation date that the property was listed at $399,999, but received no offers at that asking price.By February, after foreclosure, the asking price had been reduced to $318,900 and there were no purchaser’s at that price.The only offer presented in this record was for $290,000 which was rejected by the seller.Four months later, the property sold for $300,000, supported by an appraisal.[27] The foregoing casts aside what would have otherwise been sufficient evidence to prove value, i.e. the Froeckmann appraisal.

A price agreed to between a willing buyer and seller creates a presumption that the transaction was a market transaction.[28]The law presumes that a sales price has been freely fixed and not under compulsion.The burden then is placed on the party opposing the sale evidence to produce evidence that the sale was not voluntary.[29]Therefore, in this instance the Complainant has the benefit of the presumption that her purchase of the property under appeal in June 2009 was a market transaction.Implicit in that is that the transaction satisfies the criteria of the Standard for Valuation.

Complainant is not required to prove anything other than her purchase.If Respondent wishes to challenge the June 2009 purchase as being outside the boundary of a market sale, he bears the burden of presenting evidence that would establish factors to render the sale invalid as a sale between a willing buyer and willing seller.Simply asserting that the June 2009 purchase was “a foreclosure sale” does not suffice.[30]The record is void of any evidence upon which the Hearing Officer can conclude that the June 2009 purchase does not qualify as a market transaction under the Standard for Valuation.

Conclusion

The actual sale of the subject within six months of the valuation date is substantial and persuasive evidence to establish that the most probably fair market value of the property on January 1, 2009, was $300,000.The presumption of correct assessment by the Board was rebutted and true value in money was established by Complainant.

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 SET ASIDE.

The assessed value for the subject property for tax years 2009 and 2010 is set at $57,000.

Application for Review

Failure to state specific facts or law upon which the application for review is based will result in summary denial. [31]

Disputed Taxes

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 December 8, 2010.

STATE TAX COMMISSION OFMISSOURI

_____________________________________

W. B. Tichenor

Senior Hearing Officer

Certificate of Service

I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 8^thday of December, 2010, to:Van Lam, 3235 Ridgetop View Drive, St. Louis, MO 63129,Complainant; Paula Lemerman, Associate County Counselor, County Government Center, 41 South Central Avenue, Clayton, MO 63105, Attorney for Respondent; Michael Brooks, ActingAssessor, County Government Center, 41 South Central Avenue, Clayton, MO 63105; John Friganza, Collector, County Government Center, 41 South Central Avenue, Clayton, MO 63105.

___________________________

Barbara Heller

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

[1] BOE Decision Letter, Exhibit 1, Page 1 of 4

[2] The Contract was not executed by the Seller.

[3] Section 137.115.1, RSMo.

[4] See, Complainant Failed To Prove Value of $290,000, infra

[5] Testimony of Complainant and Sepid M. Salem

[6] Exhibit 1

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

[8] Article X, Sections 4(a) and 4(b), Mo. Const. of 1945

[9] Section 137.115.5, RSMo

[10] 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)

[11] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959)

[12] United Missouri Bank of Kansas City v. March, 650 S.W.2d 678, 680-81 (Mo. App. 1983), citing to State ex rel. Christian v. Lawry, 405 S.W.2d 729, 730 (Mo. App. 1966) and cases therein cited.

[13] 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).

[14] Daly v. P. D. George Company, et al, 77 S.W.3d 645, 649 (Mo. App E.D. 2002), citing, Equitable Life Assurance Society v. STC, 852 S.W.2d 376, 380 (Mo. App. 1993); citing, Stephen & Stephen Properties, Inc. v. STC, 499 S.W.2d 798, 801-803 (Mo. 1973).

[15] Hermel, supra.

[16] 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.

[17] 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).

[18] 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).

[19] St. Joe Minerals Corp., supra.

[20] Hermel, supra.

[21] 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).

[22] See, Cupples-Hesse, supra.

[23] Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975).

[24] 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).

[25] 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).

[26] See, Ames v. Kessinger, STC Appeal No. 09-33022, Decision – 2/26/10, W. B. Tichenor, S.H.O.

[27] Exhibit A, p. 2, Line 803 – Appraisal fee to: Thomas Tempel.Complainant was not provided a copy of the appraisal and was not aware of what the appraised value was.

[28] Phoenix Redevelopment Corporation v. Walker, 812 S.W.2d, 881, 883-4 (Mo. App. W.D. 1991).

[29] Id, citing to Board of Public Bldgs v. GMT Corp, 580 S.W.2d519, 523 (Mo. App. 1979).

[30] Exhibit 1, page 1 of 2 – Sales History.Mr. Froeckmann identifies the June 2009 transaction as “a foreclosure sale.”He then identifies the transfer in January 2009 as a foreclosure transfer.This is inconsistent.The property was either sold at foreclosure or transferred in lieu of foreclosure in January 2009.However, the June 2009 sale was a sale after foreclosure had occurred.

[31] Section 138.432, RSMo.

Posted in 2010 | Comments Off on Van Lam v. Brooks (SLCO)

Robert Selsor v. Roberts (Vernon)

December 7th, 2010

State Tax Commission of Missouri

ROBERT SELSOR,)

)

Complainant,)

)

v.) Appeal Number 10-90500

)

CHERI K ROBERTS, ASSESSOR,)

VERNON COUNTY, MISSOURI,)

)

Respondent.)

DECISION AND ORDER

HOLDING

Assessment made by the Assessor is SET ASIDE.True value in money for the subject property for tax year 2010 is set at $13,340, residential assessed value of $2535.Complainant appeared pro se.Respondent appeared in person.

Case heard and decided by Hearing Officer Maureen Monaghan.

ISSUE

Complainant appeals, on the ground of overvaluation, the decision of the Assessor.The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2009.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 appealed to the State Tax Commission after receiving notice of valuation.A hearing was conducted on November 23, 2010, at the Vernon County Courthouse, Nevada, Missouri.

2.Assessment.The Assessor appraised the property under appeal at $86,000, a residential assessed value of $16,340.

3.Subject Property.The subject property is located at 18889 S 1256 Road, Nevada, Missouri.The property is identified by locator number 17 6.0 13 000 000 016.000.The property consists of a 1.6 acre lot.The lot was improved with mobile home, garage/lean-to, and a shed.Taxes had not been paid on the property for 2007, 2008, or 2009.On January 1^st or 2^nd, 2010, the mobile home on the property burned; parts of the deck and foundation remained. The shed had been removed.The garage/lean-to was in poor condition.

4.Complainant’s Evidence.Mr. Selsor testified in his own behalf.He purchased the property at the tax sale in August of 2010.He purchased the property for $4,909; the sum of the amount of tax dollars owed on the property.He stated that the garage was in poor condition. He had all improvements, or remnants of property, removed.

5.Respondent’s Evidence.Assessor Cheri Roberts testified.She testified that the Assessor’s Office valued the land at $10,700.She was unaware of the condition of the mobile home as she had not had access to the property.She testified that if improvements are in really poor condition, the Assessor’s Office values the improvement at $1 per square foot salvage value.Using the salvage value for the property, the mobile home would be valued at $2,240 and the garage would be valued at $400.

6.Assessed Value.The parties agreed that the fair market value of the 1.6 acre lot is $10,700.The parties agreed that the fair market value of the improvements was $2,640.The total valuation of the property is set at $13,340.The residential assessed value is $2,535.

CONCLUSIONS OF LAW AND DECISION

Jurisdiction

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.[2]The constitutional mandate is to find the true value in money for the property under appeal.By statute real and tangible personal property is assessed at set percentages of true value in money.[3]In an overvaluation appeal, true value in money for the property being appealed must be determined based upon the evidence on the record that is probative on the issue of the fair market value of the property under appeal.

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.[4]True value in money is defined in terms of value in exchange and not value in use.[5]It is the fair market value of the subject property on the valuation date.[6]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:

1.Buyer and seller are typically motivated.

2.Both parties are well informed and well advised, and both acting in what they consider their own best interests.

3.A reasonable time is allowed for exposure in the open market.

4.Payment is made in cash or its equivalent.

5.Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.

6.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.[7]

Methods of Valuation

ORDER

The assessed valuation for the subject property as determined by the Assessor is SET ASIDE.

The assessed value for the subject property for tax year 2010 is set at $2535.

Application for Review

Failure to state specific facts or law upon which the application for review is based will result in summary denial. [10]

Disputed Taxes

The Collector of Vernon 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 December 7, 2010.

STATE TAX COMMISSION OFMISSOURI

_____________________________________

Maureen Monaghan

Hearing Officer

Certificate of Service

I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 7^thday of December, 2010, to:Robert Selsor, 18853 S. 1256 Rd., Nevada, MO 64772, Complainant; Lynn Ewing, Prosecuting Attorney, 100 West Cherry, Suite 13, Nevada, MO 64772, Attorney for Respondent; Cherie Roberts, Assessor, 100 West Cherry, Suite 1, Nevada, MO 64772; Tammi Beach, Clerk, 100 West Cherry, Nevada, MO 64772; Phil Couch, Treasurer and ex officio Collector, 100 West Cherry, Nevada, MO 64772.

___________________________

Barbara Heller

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

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

[2] Article X, Sections 4(a) and 4(b), Mo. Const. of 1945

[3] Section 137.115.5, RSMo

[4] 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).

[5] Daly v. P. D. George Company, et al, 77 S.W.3d 645, 649 (Mo. App E.D. 2002), citing, Equitable Life Assurance Society v. STC, 852 S.W.2d 376, 380 (Mo. App. 1993); citing, Stephen & Stephen Properties, Inc. v. STC, 499 S.W.2d 798, 801-803 (Mo. 1973).

[6] Hermel, supra.

[7] 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.

[8] 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).

[9] 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).

[10] Section 138.432, RSMo.

Posted in 2010 | Comments Off on Robert Selsor v. Roberts (Vernon)

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