Missouri State Tax Commission »

Darrell Lewis v. Thomas Ruhl, Assessor Ralls County

December 28th, 2016

STATE TAX COMMISSION OF MISSOURI

DARREL D. LEWIS,	)
Complainant,	)
	)
v.	)	Appeal No. 15-81004
	)
THOMAS E. RUHL, ASSESSOR	)
RALLS COUNTY, MISSOURI, Respondent.	)

DECISION AND ORDER

HOLDING

The valuation and assessment made by Respondent Thomas E. Ruhl, Ralls County Assessor, (Respondent) is AFFRIMED. Complainant Darrel D. Lewis (Complainant) did not present substantial and persuasive evidence to establish an opinion as to the true market value of the subject property as of January 1, 2015.

Complainant appeared pro se.

Respondent appeared pro se.

Case heard and decided by Senior Hearing Officer Amy S. Westermann.

ISSUE

Complainant appealed on the ground of overvaluation. Respondent initially set the true market value (TMV) of the subject property at $106,640 ($89,670, as residential property, $16,970, as agricultural property). Respondent later lowered the valuation to $94,640 ($77, 670, as residential property, $16,970, as agricultural property). The Commission takes this appeal to determine the TMV of the subject property on January 1, 2015.

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

FINDINGS OF FACT

Jurisdiction. Jurisdiction over this appeal is proper. See Board of Equalization, infra.
Evidentiary Hearing. The issue of overvaluation was presented at an evidentiary hearing on August 9, 2016, at the Ralls County Courthouse, New London, Missouri.
Identification of Subject Property. The subject property is identified by parcel/locator number 02-0.5-22-000-00-06.01000. It is further identified as 13659 Route T, New London, Ralls County, Missouri. (Complaint; Respondent’s Exhibit 1B)
Description of Subject Property. The subject property consists of 48.7 acres classified as agricultural and residential. A 1,512 square-foot, ranch-style, single-family residence built in 1960 is situated upon the subject property. The residence includes two bedrooms; one bathroom; a 1,120 square-foot basement; and a two-car attached garage. The exterior consists of vinyl and frame construction. (Complainant’s Exhibits D and F; Respondent’s Exhibit 1B)
Assessment. Respondent initially set a TMV for the subject property of $106,640 ($89,670, as residential property, and $16,970, as agricultural property) as of January 1, 2015. (Complainant’s Exhibit A3) Respondent later lowered the assessment to $94,640 ($77,670, as residential property, and $16,970 as agricultural property) as of January 1, 2015. (Respondent’s Exhibit 1A)
Board of Equalization. Complainant did not appeal to the Ralls County Board of Equalization (BOE) but appealed to the Commission.^[1] (See Complainant’s Exhibit B) Respondent did not object and did not raise this issue at any time prior to the introduction of evidence at the evidentiary hearing, thereby waiving this affirmative defense to the direct filing of the appeal. See McCracken v. Wal-Mart Stores East, L.P., 298 S.W.3d 473, 475 (Mo. banc 2009).
Complainant’s Evidence. Complainant testified in his own behalf. Complainant testified that he had purchased a single parcel consisting of approximately 142 acres in 2011 or 2012 at a public auction for approximately $1,950 per acre. Complainant testified that the parcel included the subject property at issue in this appeal, i.e., 48.7 acres plus the residence. Complainant testified that he was appealing only the valuation placed on the residence.

Complainant testified that the subject property had been publicly advertised for sale. Complainant testified that the subject property was not encumbered by a mortgage and had not been listed for sale or appraised within the three years preceding the Evidentiary Hearing. Complainant testified that he had not received any offers to purchase the subject property. Complainant testified that he would place an asking price of $284,000 on the entire 142 acre parcel but an asking price of $70,000 on the residence alone. Complainant testified that he had not made improvements to the subject property between January 1, 2013, and January 1, 2015. Complainant opined that the residence had a TMV as of January 1, 2015, of $70,000. Complainant testified that his complaint regarding overvaluation related to his belief that Respondent had overvalued the residence, not the agricultural land.

Complainant offered as evidence the following:

Exhibit A1; A2; A3	Complainant’s note to Respondent objecting to the assessment of the residence; Complainant’s Complaint for Review of Assessment; Notice of Change in Assessed Value of Real Property issued by Respondent
Exhibit B	Complainant’s letter to Respondent dated November 25, 2015
Exhibit C	Respondent’s letter to Complainant dated December 10, 2015
Exhibit D	Photographs of the residence
Exhibit E	Aerial map of the subject property
Exhibit F	Copy of notice of public auction advertising the subject property
Exhibit G	Respondent’s letter to Complainant dated June 10, 2016
Exhibit H	Respondent’s Notice to Complainant concerning reassessment of real estate for the 2014-2015 tax cycle

Respondent did not object to Complainant’s evidence, which was received into the record.

No Evidence of New Construction & Improvement. There was no evidence of new construction and improvement from January 1, 2015, to January 1, 2016; therefore, the assessed value for 2016 remains the assessed value for 2015. Section 137.115.1, RSMo.
Respondent’s Evidence. Respondent appeared on his own behalf. Respondent testified that the Commission had ordered the Ralls County Assessor’s Office to increase residential values by an average of 15 percent and to adjust agricultural values by an average of 5 percent. Respondent testified that the corresponding increase in the valuation of Complainant’s property had been close to those percentages.

Respondent offered as evidence the following:

Exhibit 1A; 1B	Respondent’s letter to Complainant dated June 10, 2016, along with photographs of comparable properties and copies of Complainant’s exhibits; sketch of the residence along with a photograph of the front of the residence
Exhibit 2	Comparable Property No. 1 Property Record Card
Exhibit 3	Comparable Property No. 2 Property Record Card
Exhibit 4	Comparable Property No. 3 Property Record Card

Respondent advocated that the true market value of the residence as of January 1, 2015, was $77,670.^[2]

Complainant objected to Respondent’s Exhibits 1A and 1B as irrelevant. The Senior Hearing Officer noted the objections for the record but overruled the objections and received the exhibits into the record to be given the weight deemed necessary when considered with all of the other evidence. Complainant objected to Respondent’s Exhibits 2, 3, and 4 on the ground that the comparables were not exactly the same as the subject property. Hearing no legal objection, the Senior Hearing Officer overruled the objection, and Exhibits 2, 3, and 4 were received into the record.

Substantial and Persuasive Evidence – True Market Value Established. Complainant’s evidence was not substantial and persuasive to establish the true market value of the subject property in money as of January 1, 2015, to be $86,970 ($70,000 residential, $16,970 agricultural). However, Respondent’s evidence was substantial and persuasive to support his valuation of the subject property in money as of January 1, 2015, to be $94,640 ($77,670 residential, $16,970 agricultural).

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, including the application of any abatement. The Senior Hearing Officer shall issue a decision and order affirming, modifying or reversing the determination of the Board of Equalization, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious. Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo.

Basis of Assessment

The Constitution mandates that real property and tangible personal property be assessed at its value or such percentage of its value as may be fixed by law for each class and for each subclass. Article X, Sections 4(a) and 4(b), Mo. Const. of 1945. The constitutional mandate is to find the true value in money for the property under appeal. By statute, real property and tangible personal property are assessed at set percentages of true value in money: residential property at 19%; commercial property at 32%; and agricultural property at 12%. Section 137.115.5 RSMo (2000) as amended.

Investigation by Hearing Officer

In order to investigate appeals filed with the Commission, the Hearing Officer may 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. Section 138.430.2 RSMo (2000) as amended. The Hearing Officer’s decision regarding the assessment or valuation of the property may be based solely upon his inquiry and any evidence presented by the parties or based solely upon evidence presented by the parties. Id.

During the hearing, the Senior Hearing Officer inquired of Complainant and Respondent.

Complainant’s Burden of Proof

To obtain a reduction in assessed valuation based upon an alleged overvaluation, the Complainant must prove the true value in money of the subject property on the subject tax day. Hermel, Inc., v. State Tax Commission, 564 S.W.2d 888, 897 (Mo. banc 1978). True value in money is defined as the price that the subject property would bring when offered for sale by one willing but not obligated to sell it and bought by one willing or desirous to purchase but not compelled to do so. Rinehart v. Bateman, 363 S.W.3d 357, 365 (Mo. App. W.D. 2012); Cohen v. Bushmeyer, 251 S.W.3d 345, 348 (Mo. App. E.D. 2008); Greene County v. Hermel, Inc., 511 S.W.2d 762, 771 (Mo. 1974). True value in money is defined in terms of value in exchange and not in terms of value in use. Stephen & Stephen Properties, Inc. v. State Tax Commission, 499 S.W.2d 798, 801-803 (Mo. 1973). In sum, true value in money is the fair market value of the subject property on the valuation date. Hermel, Inc., 564 S.W.2d at 897.

“’True value’ is never an absolute figure, but is merely an estimate of the fair market value on the valuation date.” Drury Chesterfield, Inc., v. Muehlheausler, 347 S.W.3d 107, 112 (Mo. App. E.D. 2011), citing St. Joe Minerals Corp. v. State Tax Comm’n of Mo., 854 S.W.2d 526, 529 (Mo. App. E.D. 1993). “Fair market value typically is defined as the price which the property would bring when offered for sale by a willing seller who is not obligated to sell, and purchased by a willing buyer who is not compelled to buy.” Drury Chesterfield, Inc., 347 S.W.3d at 112 (quotation omitted).

A presumption exists that the assessed value fixed by the BOE is correct. Rinehart, 363 S.W.3d at 367; Cohen, 251 S.W.3d at 348; Hermel, Inc., 564 S.W.2d at 895. “Substantial and persuasive controverting evidence is required to rebut the presumption, with the burden of proof resting on the taxpayer.” Cohen, 251 S.W.3d at 348. Substantial evidence can be defined as such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Cupples Hesse Corp. v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959). Persuasive evidence is evidence that has sufficient weight and probative value to convince the trier of fact. Cupples Hesse Corp., 329 S.W.2d at 702. The persuasiveness of evidence does not depend on the quantity or amount thereof but on its effect in inducing belief. Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975). See also, 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).

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.” Westwood Partnership, 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. W.D. 1991).

Generally, a property owner, while not an expert, is competent to testify to the reasonable market value of his own land. Cohen, 251 S.W.3d at 348-49; Carmel Energy, Inc. v. Fritter, 827 S.W.2d 780, 783 (Mo. App. W.D. 1992). “However, when an owner’s opinion is based on improper elements or foundation, his opinion loses its probative value.” Carmel Energy, Inc., 827 S.W.2d at 783. A taxpayer does not meet his burden if evidence on any essential element of his case leaves the Commission “in the nebulous twilight of speculation, conjecture and surmise.” See Rossman v. G.G.C. Corp. of Missouri, 596 S.W.2d 469, 471 (Mo. App. E.D. 1980).

Weight to be Given Evidence

The Senior Hearing Officer is not bound by any single formula, rule, or method in determining true value in money and 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 Senior Hearing Officer to decide. 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).

The Senior Hearing Officer, as the trier of fact, may consider the testimony of an expert witness and give it as much weight and credit as deemed necessary when viewed in connection with all other circumstances. Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. W.D. 1991). The Senior Hearing Officer, as the trier of fact, is not bound by the opinions of experts but may believe all or none of the expert’s testimony or accept it in part or reject it in part. Exchange Bank of Missouri v. Gerlt, 367 S.W.3d 132, 135-36 (Mo. App. W.D. 2012).

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. See, Nance v. STC, 18 S.W.3d 611, 615 (Mo. App. W.D. 2000); Hermel, Inc., 564 S.W.2d at 897; Xerox Corp. v. STC, 529 S.W.2d 413 (Mo. banc 1975). Missouri courts have approved the comparable sales or market approach, the cost approach, and the income approach as recognized methods of arriving at fair market value. St. Joe Minerals Corp. v. STC, 854 S.W.2d 526, 529 (App. E.D. 1993); Aspenhof Corp. v. STC, 789 S.W.2d 867, 869 (App. E.D. 1990); Quincy Soybean Company, Inc., v. Lowe, 773 S.W.2d 503, 504 (App. E.D. 1989), citing Del-Mar Redevelopment Corp v. Associated Garages, Inc., 726 S.W.2d 866, 869 (App. E.D. 1987); and State ex rel. State Highway Comm’n v. Southern Dev. Co., 509 S.W.2d 18, 27 (Mo. 1974).

“For purposes of levying property taxes, the value of real property is typically determined using one or more of three generally accepted approaches.” Snider v. Casino Aztar/Aztar Missouri Gaming Corp., 156 S.W.3d 341, 346 (Mo. banc 2005), citing St. Louis County v. Security Bonhomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977). “Each valuation approach is applied with reference to a specific use of the property—its highest and best use.” Snider, 156 S.W.3d at 346-47, citing Aspenhof Corp., 789 S.W.2d at 869. “The method used depends on several variables inherent in the highest and best use of the property in question.” Snider, 156 S.W.3d at 347. “Each method uses its own unique factors to calculate the property’s true value in money.” Id. “The ‘comparable sales approach’ uses prices paid for similar properties in arms-length transactions and adjusts those prices to account for differences between the properties. Id. at 348. “Comparable sales consist of evidence of sales reasonably related in time and distance and involve land comparable in character.” Id. (quotation omitted). “This approach is most appropriate when there is an active market for the type of property at issue such that sufficient data [is] available to make a comparative analysis.” Id.

Implicit in this definition are the consummation of a sale as of a specific date and the passing of title from seller to buyer under conditions whereby:

Buyer and seller are typically motivated.

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

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

Payment is made in cash or its equivalent.

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

The price represents a normal consideration for the property sold unaffected by special financing amounts and/or terms, services, fees, costs, or credits incurred in the transaction.

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.

Discussion

Complainants’ evidence was neither substantial nor persuasive to support an opinion that the fair market value of the residence situated on the subject property as of January 1, 2015, was $70,000. Substantial evidence is that which is relevant, adequate, and reasonably supports a conclusion. Cupples Hesse Corp., 329 S.W.2d at 702. Persuasive evidence is that which causes the trier of fact to believe, more likely than not, the conclusion advocated is the correct conclusion. Id.

Here, Complainant argued and presented evidence establishing that he had purchased the subject property as part of a much larger parcel containing agricultural land and the residence. Complainant argued and presented evidence establishing that he had purchased the subject property at a publicly advertised auction three or four years before the tax date at issue. Complainant claimed that, given the fact he had purchased the subject property at an auction where open bidding had occurred on a date not too remote in time from the subject tax day, the price he had paid for the parcel was relevant for establishing fair market value of the residence. This logic is flawed for several reasons.

First, Complainant’s approach to valuing the residence is not based upon one of the court approved approaches to valuing property, i.e., the comparable sales or market approach, the cost approach, and the income approach. Complainant did not present an appraisal report combined with the testimony of an appraiser or any evidence showing a formal comparison between the residence and similar residences. Second, a public auction does not necessarily indicate that a willing seller was involved in the transaction; rather, a public auction often indicates that the seller is under duress and the potential buyers are attempting to take advantage of the situation to obtain a property for less than its full fair market value.

Respondent presented substantial and persuasive evidence to support his conclusion that the fair market value of the residence as of January 1, 2015, was $77,670. Respondent 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. Respondent presented evidence concerning three comparable properties located within the same geographic area as the subject property. In his testimony concerning his analysis of the comparable properties, Respondent noted similarities and differences between Complainant’s residence and the comparables. Respondent’s valuation of the comparables ranged from $71,950 to $85,230. Comparable No. 1 was most like Complainant’s residence: 1,584 square foot, ranch-style, single-family home built in 1960; 1,188 square foot basement; two bedrooms and one bathroom; a detached two-car garage; vinyl and fame exterior construction. Comparable No. 1 was valued at $82,780. Comparable No. 2, which was valued at $71,950, was approximately 500 square feet smaller than Complainant’s residence and had been built in 1965. Comparable No. 2 had a full basement, had three bedrooms and one and one-half bathrooms, and had a detached two-car garage. Comparable No. 3, which was valued at $85,230, was only a few square feet smaller than Complainant’s residence and had been built in 1962. Comparable No. 3 had a full basement, had three bedrooms and one and one-half bathrooms, and had an attached two-car garage plus a detached metal carport. Given these comparables, it is reasonable to conclude that the fair market value, i.e., true market value, of Complainant’s residence as of January 1, 2015, was $77,670.

ORDER

The true market value for the subject property as of January 1, 2015, has been established by substantial and persuasive evidence. The valuation and assessment made by Respondent is AFFIRMED. The assessed value for the subject property for tax years 2015 and 2016 is set at $17,981 residential ($94,640 TMV).

Application for Review

A party may file with the Commission an application for review of this decision within thirty days of the mailing date set forth in the Certificate of Service for this Decision. The application shall contain specific facts or law as grounds upon which it is claimed the decision is erroneous. Said application must be in writing addressed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, MO 65102-0146, and a copy of said application must be sent to each person at the address listed below in the certificate of service.

Failure to state specific facts or law upon which the application for review is based will result in summary denial. Section 138.432, RSMo

Disputed Taxes

The Collector of Ralls 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 28, 2016.

STATE TAX COMMISSION OF MISSOURI

Amy S. Westermann

Senior Hearing Officer

Certificate of Service

I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 28th day of December, 2016, to: Complainants(s) counsel and/or Complainant, the County Assessor and/or Counsel for Respondent and County Collector.

Jacklyn Wood

Legal Coordinator

[1] The record is unclear as to whether Complainant received a notice of increase in assessment from Respondent prior to 30 days before the deadline for filing an appeal with the Ralls County BOE. See Section 137.275.1; 12 CSR 30-3.010(1)(B)1. However, the record contains Complainant’s letter sent to Respondent dated November 25, 2015, stating that the parties had discussed Complainant’s case in July 2015 and that Respondent had informed Complainant that he “could have until the end of the year to plead [his] case against the tax increase.” (Complainant’s Exhibit B)

^[2] Initially, Respondent had placed a TMV of $89,670 on the residence. However, according to Respondent’s own evidence, Respondent lowered the initial assessment in June 2016 to reflect the results of the Ralls County Assessor’s analysis of the market data.

Posted in 2016 | Comments Off on Darrell Lewis v. Thomas Ruhl, Assessor Ralls County

Joseph D Hunter v. Jake Zimmerman, Assessor St. Louis County

December 13th, 2016

State Tax Commission of Missouri

JOSEPH D. HUNTER,	)
	)
Complainants,	)
	)
v.	)	Appeal No. 15-10035
	)
JAKE ZIMMERMAN, ASSESSOR,	)
ST. LOUIS COUNTY, MISSOURI,	)
	)
Respondent.	)

DECISION AND ORDER

UPON APPLICATION FOR REVIEW

On November 3, 2016, Senior Hearing Officer Amy Westermann (Senior Hearing Officer) entered her Decision and Order (Decision) affirming the assessment by the Board of Equalization of St. Louis County (BOE), which reduced the assessed value for the subject property (the Property) for tax years 2015-2016 at $7,360. (True value of $23,000) Joseph Hunter (Complainant) subsequently filed his Application for Review of the Decision with the State Tax Commission (the Commission). Jake Zimmerman, Assessor of St. Louis County (Respondent) filed his Response.

CONCLUSIONS OF LAW

Standard of Review

A party subject to a Decision and Order of a Hearing Officer may file an application requesting the case be reviewed by the Commission. Section 138.432 RSMo Cum. Supp. 2015; 12 CSR 30-3.080(4). The Commission may then summarily allow or deny the request. Section 138.432; 12 CSR 30-3.080(5). The Commission may affirm, modify, reverse, set aside, deny, or remand to the Hearing Officer the Decision and Order of the Hearing Officer on the basis of the evidence previously submitted or based on additional evidence taken before the Commission. Section 138.432; 12 CSR 30-3.080(5)(A).

The relative weight to be accorded any relevant factor in a particular case is for the Senior Hearing Officer to decide. St. Louis County v. Security Bonhomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977); St. Louis County, 515 S.W.2d at 450; Chicago, Burlington & Quincy Railroad Company v. STC, 436 S.W.2d 650 (Mo. 1968). Likewise, the Commission is free to consider all pertinent facts and give them such weight as reasonably the Commission deems them entitled.

The Commission, having reviewed the record in this appeal and having considered the Decision of the Senior Hearing Officer, enters its Decision and Order. Segments of the Senior Hearing Officer’s Decision have been incorporated into our Decision and Order without further reference.

DECISION

Respondent’s Point on Review

Complainant faxed 59 pages of assorted papers and documents. Complainant states that the decision was prejudiced, biased, erroneous and unfair.

Commission’s Decision

After review of the paperwork submitted by the Complainant, the Commission summarily denies the Complainant’s Application.

Procedural History

The subject property was valued by the Respondent at $25,200, $8,060 commercial assessed value. The BOE reduced the value to $23,000, assessed value of $7,360. Complainant filed an appeal with the STC.

An order setting the hearing on the appeal was issued on October 24, 2016. The appeal was set for evidentiary hearing on November 30, 2016 at 1:00 P.M. Complainant timely received a copy of the Order as evidenced by his faxed response dated November 22, 2016. His response was written on the Order Setting Evidentiary Hearing . The Order informed Complainant of the procedures if a continuance was needed.

The appeal was called on November 30, 2016. Complainant did not appear and had not requested a continuance. The SHO provided for additional time for Complainant to make his appearance.

Due to Complainant’s failure to appear and failure to request a continuance, Complainant did not meet his burden of substantial and persuasive evidence of valuation. Complainant failed to state in his Application for Review specific facts or law to explain why the SHO’s Decision is erroneous. Complainant did not provide reason for his failure to appear at the hearing or request a continuance.

ORDER

Upon review of the record and Decision and Order in this appeal, the Commission finds no grounds upon which the Decision and Order of the Senior Hearing Officer should be modified.

Judicial review of this Order may be had in the manner provided in Sections 138.432 and 536.100 to 536.140, RSMo within thirty days of the mailing date set forth in the Certificate of Service for this Order.

If judicial review of this decision is made, any protested taxes presently in an escrow account in accordance with this appeal shall be held pending the final decision of the courts unless disbursed pursuant to Section 139.031.8, RSMo.

If no judicial review is made within thirty days, this decision and order is deemed final and the Collector of St. Louis County, as well as the collectors of all affected political subdivisions therein, shall disburse the protested taxes presently in an escrow account in accord with the decision on the underlying assessment in this appeal.

SO ORDERED March 21, 2017.

STATE TAX COMMISSION OF MISSOURI

Bruce E. Davis, Chairman

Victor Callahan, Commissioner

Certificate of Service

I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 21st day of March, 2017, to: Complainants(s) counsel and/or Complainant, the County Assessor and/or Counsel for Respondent and County Collector.

Jacklyn Wood

Legal Coordinator

Contact Information for State Tax Commission:

Missouri State Tax Commission

P.O. Box 146

301 W. High Street, Room 840

Jefferson City, MO 65102

573-751-2414

573-751-1341 FAX

STATE TAX COMMISSION OF MISSOURI

JOSEPH D. HUNTER,	)
	)
Complainant,	)
	)
v.	)	Appeal No. 15-10035
	)
JAKE ZIMMERMAN, ASSESSOR	)
ST. LOUIS COUNTY, MISSOURI,	)
	)
Respondent.	)

DECISION AND ORDER

HOLDING

The decision of the St. Louis County Board of Equalization (BOE) lowering the assessment made by Jake Zimmerman, Assessor, St. Louis County, Missouri, (Respondent) is AFFIRMED. The evidentiary hearing in this case was scheduled for November 30, 2016, at the St. Louis County Government Administration Building in Clayton, Missouri. Complainant failed to appear at the evidentiary hearing and failed to prosecute the appeal. Respondent appeared by Counsel Steven Robson. Senior Hearing Officer Amy S. Westermann presiding.

ISSUE

The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2015.

SUMMARY

Initially, Respondent appraised the subject property at $25,200 true market value, $8,060 assessed value, as commercial property. The BOE lowered Respondent’s valuation of the subject property to $23,000 true market value, $7,360 assessed value, as commercial property. Complainant appealed, on the ground of overvaluation. In his Complaint for Review of Assessment, Complainant proposed a value of $20,000 true market value, $6,400 assessed value.

FINDINGS OF FACT

Jurisdiction over this appeal is proper. Complainant timely appealed to the State Tax Commission from the decision of the BOE.

The subject property is located at 2142 North & South, St. Louis County, Missouri. The property is identified by Parcel/Locator number 15K341233.
By Order dated October 24, 2016, this case was set for an Evidentiary Hearing at 1:00 p.m., on Wednesday, November 30, 2016, at the St. Louis County Government Administration Building, 41 S. Central Avenue, Clayton, Missouri. The Order informed Complainant that if he could not attend the Evidentiary Hearing and needed a continuance a request must be made in writing and filed with the Commission no later than five days before the hearing date. Complainant did not file any request for a continuance. Complainant did not communicate with the Senior Hearing Officer or the Commission that he would not be attending the Evidentiary Hearing as scheduled.[1]
The evidentiary hearing in Appeal No. 15-10035 was not held as scheduled at 1:00 p.m., on Wednesday, November 30, 2016, at the St. Louis County Government Administration Building in Clayton, Missouri, because Complainant did not appear and did not request a continuance. Respondent appeared by Counsel Steven Robson, who announced ready for trial. Cause was announced and a grace period for Complainant to appear was provided.

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, including the application of any abatement. The Senior Hearing Officer shall issue a decision and order affirming, modifying, or reversing the determination of the Board of Equalization and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious. Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo.

Presumptions In Appeals

There is a presumption of validity, good faith, and correctness of assessment by the county board of equalization. Hermel, Inc. v. STC, 564 S.W.2d 888, 895 (Mo. banc 1978); Chicago, Burlington & Quincy Railroad Co. v. STC, 436 S.W.2d 650, 656 (Mo. 1968); May Department Stores Co. v. STC, 308 S.W.2d 748, 759 (Mo. 1958). In order to prevail, complainants must rebut the presumption of correct assessment by presenting substantial and persuasive evidence as to the proper taxation of the subject property on the tax day at issue. Hermel, 564 S.W.2d at 895; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959). There is no presumption that the taxpayer’s opinion is correct. In an appeal before the Commission, the taxpayer still bears the burden of proof because the taxpayer is the moving party seeking affirmative relief. Therefore, the Complainant must prove by a preponderance of the evidence the vital elements of the case, i.e., the assessment was “unlawful, unfair, improper, arbitrary or capricious.” See, Westwood Partnership v. Gogarty, 103 S.W.3d 152, 161 (Mo. App. E.D. 2003); Reeves v. Snider, 115 S.W.3d 375, 379 (Mo. App. S.D. 2003); Daly v. P. D. George Co., 77 S.W.3d 645, 648 (Mo. App. E.D. 2002); Industrial Development Authority of Kansas City v. State Tax Commission of Missouri, 804 S.W.2d 387, 392 (Mo. App. W.D. 1991).

ORDER

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

The assessed value for the subject property for tax years 2015 and 2016 is set at $7,360 assessed value ($23,000 true market value).

Application for Review

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 grounds upon which it is claimed the decision is erroneous. Said application must be in writing addressed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, MO 65102-0146, and a copy of said application must be sent to each person at the address listed below in the certificate of service. Failure to state specific facts or law upon which the appeal is based will result in summary denial. Section 138.432 RSMo 2000.

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 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 2000, as amended.

Any Finding of Fact that is a Conclusion of Law or Decision shall be so deemed. Any Decision that is a Finding of Fact or Conclusion of Law shall be so deemed.

SO ORDERED this 13th day of December, 2016.

STATE TAX COMMISSION OF MISSOURI

Amy S. Westermann

Senior Hearing Officer

Certificate of Service

I hereby certify that a copy of the foregoing has been electronically mailed or sent by U.S. Mail on this 13th day of December, 2016 to:

Joseph D. Hunter, Complainant, 60 Villa Coublay Dr., St. Louis, MO 63131

Steven Robson, Attorney for Respondent, srobson@stlouisco.com

Jake Zimmerman, Assessor/Respondent, rkoch@stlouisco.com

St. Louis County Collector’s Office, mdevore@stlouisco.com

Jacklyn Wood

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] The Order dated October 24, 2016, was mailed postage paid, to Complainant’s address. On November 22, 2016, Complainant faxed materials to the Senior Hearing Officer, which included a copy of the Order dated October 24, 2016, with Complainant’s handwritten notations on it.

Posted in 2016 | Comments Off on Joseph D Hunter v. Jake Zimmerman, Assessor St. Louis County

Joe Moore v. Jake Zimmerman, Assessor St. Louis County

December 13th, 2016

STATE TAX COMMISSION OF MISSOURI

JOE MOORE,	)
	)
Complainant,	)
	)
v.	)	Appeal No. 16-10011
	)
JAKE ZIMMERMAN, ASSESSOR	)
ST. LOUIS COUNTY, MISSOURI,	)
	)
Respondent.	)

DECISION AND ORDER

HOLDING

The decision of the St. Louis County Board of Equalization (BOE) sustaining the assessment made by Jake Zimmerman, Assessor, St. Louis County, Missouri, (Respondent) is AFFIRMED. The evidentiary hearing in this case was scheduled for November 30, 2016, at the St. Louis County Government Administration Building in Clayton, Missouri. Complainant failed to appear at the evidentiary hearing and failed to prosecute the appeal. Respondent appeared by Counsel Steven Robson. Senior Hearing Officer Amy S. Westermann presiding.

ISSUE

The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2015.

SUMMARY

Initially, Respondent appraised the subject property at $531,900 true market value, $101,060 assessed value, as residential property. The BOE sustained Respondent’s valuation of the subject property. Complainant appealed, on the ground of overvaluation. In his Complaint for Review of Assessment, Complainant proposed a value of $375,900 true market value ($71,421 assessed value).

FINDINGS OF FACT

Jurisdiction over this appeal is proper. Complainant timely appealed to the State Tax Commission from the decision of the BOE.

The subject property is located at 1039 Barberry Lane, Kirkwood, Missouri. The property is identified by Parcel/Locator number 25O630396.
By Order, this case was set for an Evidentiary Hearing at 3:00 p.m., on Wednesday, November 30, 2016, at the St. Louis County Government Administration Building, 41 S. Central Avenue, Clayton, Missouri. Complainant had attended a Prehearing Conference on Wednesday, October 26, 2016, and had met with the Senior Hearing Officer and Counsel for Respondent. Complainant had agreed to the scheduled date and time for the Evidentiary Hearing. The Order was provided to Complainant during the Prehearing Conference and informed Complainant that if he could not attend the Evidentiary Hearing and needed a continuance a request must be made in writing and filed with the Commission no later than five days before the hearing date. Complainant did not file any request for a continuance. Complainant did not communicate with the Senior Hearing Officer or the Commission that he would not be attending the Evidentiary Hearing as scheduled.
The evidentiary hearing in Appeal No. 16-10011 was not held as scheduled at 3:00 p.m., on Wednesday, November 30, 2016, at the St. Louis County Government Administration Building in Clayton, Missouri, because Complainant did not appear and did not request a continuance. Respondent appeared by Counsel Steven Robson, who announced ready for trial. Cause was announced and a grace period for Complainant to appear was provided.

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, including the application of any abatement. The Senior Hearing Officer shall issue a decision and order affirming, modifying, or reversing the determination of the Board of Equalization and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious. Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo.

Presumptions In Appeals

There is a presumption of validity, good faith, and correctness of assessment by the county Board of Equalization. Hermel, Inc. v. STC, 564 S.W.2d 888, 895 (Mo. banc 1978); Chicago, Burlington & Quincy Railroad Co. v. STC, 436 S.W.2d 650, 656 (Mo. 1968); May Department Stores Co. v. STC, 308 S.W.2d 748, 759 (Mo. 1958). In order to prevail, complainants must rebut the presumption of correct assessment by presenting substantial and persuasive evidence as to the proper taxation of the subject property on the tax day at issue. Hermel, 564 S.W.2d at 895; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959). There is no presumption that the taxpayer’s opinion is correct. In an appeal before the Commission, the taxpayer still bears the burden of proof because the taxpayer is the moving party seeking affirmative relief. Therefore, the Complainant must prove by a preponderance of the evidence the vital elements of the case, i.e., the assessment was “unlawful, unfair, improper, arbitrary or capricious.” See, Westwood Partnership v. Gogarty, 103 S.W.3d 152, 161 (Mo. App. E.D. 2003); Reeves v. Snider, 115 S.W.3d 375, 379 (Mo. App. S.D. 2003); Daly v. P. D. George Co., 77 S.W.3d 645, 648 (Mo. App. E.D. 2002); Industrial Development Authority of Kansas City v. State Tax Commission of Missouri, 804 S.W.2d 387, 392 (Mo. App. W.D. 1991).

ORDER

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

The assessed value for the subject property for tax year 2016 is set at $101,060 assessed value ($531,900 true market value).

Application for Review

Any Finding of Fact that is a Conclusion of Law or Decision shall be so deemed. Any Decision that is a Finding of Fact or Conclusion of Law shall be so deemed.

SO ORDERED this 13th day of December, 2016.

STATE TAX COMMISSION OF MISSOURI

Amy S. Westermann

Senior Hearing Officer

Certificate of Service

I hereby certify that a copy of the foregoing has been electronically mailed or sent by U.S. Mail on this 13th day of December, 2016 to:

Joe Moore, Complainant, 1039 Barberry Lane, Kirkwood, MO 63122 skooba3@yahoo.com

Steven Robson, Attorney for Respondent, srobson@stlouisco.com

Jake Zimmerman, Assessor/Respondent, rkoch@stlouisco.com

St. Louis County Collector’s Office, mdevore@stlouisco.com

Jacklyn Wood

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

Posted in 2016 | Comments Off on Joe Moore v. Jake Zimmerman, Assessor St. Louis County

C. Michael Poston v. Tom Copeland, Assessor Franklin County

December 6th, 2016

State Tax Commission of Missouri

C. MICHAEL POSTON	)
	)
Complainant,	)
	)
v.	)	Appeal No. 16-57007
	)
TOM COPELAND, ASSESSOR,	)
FRANKLIN COUNTY, MISSOURI,	)
	)
Respondent.	)

ORDER NUNC PRO TUNC

The Decision and Order, dated December 6, 2016, is amended nunc pro tunc as follows:

“True value in money for the subject property for tax years 2015 and 2016 is set at $631,300, residential assessed value of $119,947” found in the Order, in the second paragraph, is stricken and the following inserted in place thereof:

“True value in money for the subject property for tax year 2016 is set at $631,300, residential assessed value of $119,947”.

Paragraph 8 stating: “No Evidence of New Construction & Improvement. There was no evidence of new construction and improvement from January 1, 2015 to January 1, 2016 therefore the assessed value for 2015 remains the assessed value for 2016. Section 137.115.1, RSMo.” is stricken.

Finally, on page 9 under ORDER, the sentence “The assessed valuation for the subject property is SET ASIDE. The assessed value for the subject property for tax years 2015 and 2016 is set at $119,947” is stricken and the following inserted in place thereof:

“The assessed valuation for the subject property is SET ASIDE. The assessed value for the subject property for tax year 2016 is set at $119,947

In all other respects, the Decision and Order, dated December 6, 2016, is affirmed as issued.

SO ORDERED this 6th day of December, 2016.

STATE TAX COMMISSION OF MISSOURI

John Treu

Senior Hearing Officer

Certificate of Service

I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 6th day of December, 2016, to: Complainants(s) counsel and/or Complainant, the County Assessor and/or Counsel for Respondent and County Collector.

tcopeland@franklinmo.net; mikepstn@aol.com; marksvincent13@gmail.com; lemmons@franklinmo.net

Jacklyn Wood

Legal Coordinator

State Tax Commission of Missouri

C. MICHAEL POSTON	)
	)
Complainant,	)
	)
v.	)	Appeal No. 16-57007
	)
TOM COPELAND, ASSESSOR,	)
FRANKLIN COUNTY, MISSOURI,	)
	)
Respondent.	)

DECISION AND ORDER

HOLDING

The assessment made by the Assessor is SET ASIDE. Substantial and persuasive evidence of the true market value of the subject property was presented.

True value in money for the subject property for tax years 2015 and 2016 is set at $631,300, residential assessed value of $119,947

Complainant appeared pro se.

Respondent appeared pro se.

Case heard and decided by Senior Hearing Officer John Treu.

ISSUE

Complainant appeals on the ground of overvaluation. The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2015. The value as of January 1 of the odd numbered year remains the value as of January 1 of the following even numbered year unless there is new construction and improvement to the property. Section 137.115.1 RSMo

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

FINDINGS OF FACT

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.
Evidentiary Hearing. The Evidentiary Hearing was held on November 23, 2016 at the Franklin County Administration Building, Union, Missouri.
Identification of Subject Property. The subject property is identified by map parcel number or locator number 08-1-01.0-0-001-013.000. It is further identified as 219 Troon Ct., St. Albans, Franklin County Missouri. (Complaint for Review of Assessment and Exhibit 1) 4. Description of Subject Property. The subject property consists of an 1.28 acre residential lot improved by a one-story, single-family brick home built in 1993. The subject property includes four bedrooms; three full bathrooms and two half bathrooms; a full walkout basement; a three-car attached garage; an open porch and two patios. (Exhibit 1)
Assessment. The Assessor valued the property at $696,350, residential assessed value of $132,306. (Complaint for Review of Assessment)
Complainant’s Evidence. Complainant offered into evidence Exhibits A, B and C. Exhibit A consisted of the sales contract. Exhibit B consisted of the settlement statement. Exhibit C consisted of the closing disclosure. The exhibits show that Complainant purchased the subject property on September 26, 2016 for $507,500
No Evidence of New Construction & Improvement. There was no evidence of new construction and improvement from January 1, 2015 to January 1, 2016 therefore the assessed value for 2015 remains the assessed value for 2016. Section 137.115.1, RSMo.
Respondent’s Evidence. Respondent offered into evidence Exhibit 1. Exhibit 1 consisted of an appraisal report. Exhibit 1 was received into evidence without objection.
Presumption of Correct Assessment Rebutted. Substantial and persuasive evidence was presented to establish true value for the subject property of $631,300 as of January 1, 2015.

CONCLUSIONS OF LAW AND DECISION

Jurisdiction

The Commission has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious. The Hearing Officer shall issue a decision and order affirming, modifying or reversing the determination of the Board of Equalization, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious. Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo.

Basis of Assessment

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

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, 2015. Hermel, supra. There is no presumption that the taxpayer’s opinion is correct. The taxpayer in a Commission appeal still bears the burden of proof. The taxpayer is the moving party seeking affirmative relief. Therefore, the Complainant bears the burden of proving the vital elements of the case, i.e., the assessment was “unlawful, unfair, improper, arbitrary or capricious.” See, Westwood Partnership v. Gogarty, 103 S.W.3d 152 (Mo. App. E.D. 2003); Daly v. P. D. George Co., 77 S.W.3d 645 (Mo. App. E.D. 2002); Reeves v. Snider, 115 S.W.3d 375 (Mo. App. S.D. 2003). A valuation which does not reflect the fair market value (true value in money) of the property under appeal is an unlawful, unfair and improper assessment.

Standard for Valuation

It is the fair market value of the subject property on the valuation date. Hermel, supra.

Market value is the most probable price in terms of money which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeable and assuming the price is not affected by undue stimulus.

Implicit in this definition are the consummation of a sale as of a specific date and the passing of title from seller to buyer under conditions whereby:

Buyer and seller are typically motivated.

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

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

Payment is made in cash or its equivalent.

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

The price represents a normal consideration for the property sold unaffected by special financing amounts and/or terms, services, fees, costs, or credits incurred in the transaction. 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.

Owner’s Opinion of Value

The owner of property is generally held competent to testify to its reasonable market value. Rigali v. Kensington Place Homeowners’ Ass’n, 103 S.W.3d 839, 846 (Mo. App. E.D. 2003); Boten v. Brecklein, 452 S.W.2d 86, 95 (Sup. 1970). The owner’s opinion is without probative value; however, where it is shown to have been based upon improper elements or an improper foundation. Cohen v. Bushmeyer, 251 S.W.3d 345, (Mo. App. E.D., March 25, 2008); Carmel Energy, Inc. v. Fritter, 827 S.W.2d 780, 783 (Mo. App. W.D. 1992).

“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.” Carmel Energy at 783. A taxpayer does not meet his burden if evidence on any essential element of his case leaves the Commission “in the nebulous twilight of speculation, conjecture and surmise.” See, Rossman v. G.G.C. Corp. of Missouri, 596 S.W.2d 469, 471 (Mo. App. 1980).

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. 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).

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. 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).

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. See, Nance v. STC, 18 S.W.3d 611, at 615 (Mo. App. W.D. 2000); Hermel, supra; Xerox Corp. v. STC, 529 S.W.2d 413 (Mo. banc 1975). Missouri courts have approved the comparable sales or market approach, the cost approach and the income approach as recognized methods of arriving at fair market value. St. Joe Minerals Corp. v. STC, 854 S.W.2d 526, 529 (App. E.D. 1993); Aspenhof Corp. v. STC, 789 S.W.2d 867, 869 (App. E.D. 1990); Quincy Soybean Company, Inc., v. Lowe, 773 S.W.2d 503, 504 (App. E.D. 1989), citing Del-Mar Redevelopment Corp v. Associated Garages, Inc., 726 S.W.2d 866, 869 (App. E.D. 1987); and State ex rel. State Highway Comm’n v. Southern Dev. Co., 509 S.W.2d 18, 27 (Mo. Div. 2 1974).

The Supreme Court of Missouri has also held that 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. St. Joe Minerals Corp. v. STC, 854 S.W.2d 526, 529 (App. E.D. 1993)

Evidence of True Value

Complainant proposed a value of $507,500 which is the price paid for the property on September 26, 2016. However, Complainant stated during his testimony that the subject property appraised for $560,000. The appraisal is believed to have been done to support the purchase of the property in September, 2016.

Respondent presented an appraisal report and testimony of the appraiser. 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 by the appraiser 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 Hearing Officer found comparable #2 utilized by Respondent’s appraiser to be the most substantial and persuasive indicator of the true market value of the subject property in that its sale date was the closest to the applicable tax date, it was the closest in proximity to the subject property and has the most similar appearance to the subject property. Comparable #2 sold on September 5, 2014. The adjusted sales price of comparable #2 was $631,300.^[1]

After review of the evidence pertaining to the purchase of the subject property and the appraisal report based upon comparable sales, the Hearing Officer concluded a true value of $631,300.

ORDER

The assessed valuation for the subject property is SET ASIDE. The assessed value for the subject property for tax years 2015 and 2016 is set at $119,947.

Application for Review

Failure to state specific facts or law upon which the application for review is based will result in summary denial. Section 138.432, RSMo.

Disputed Taxes

The Collector of 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, unless said taxes have been disbursed pursuant to a court order under the provisions of Section 139.031.8, RSMo.

Any Finding of Fact which is a Conclusion of Law or Decision shall be so deemed. Any Decision which is a Finding of Fact or Conclusion of Law shall be so deemed.

SO ORDERED this 6th day of December, 2016.

STATE TAX COMMISSION OF MISSOURI

John Treu

Senior Hearing Officer

Certificate of Service

tcopeland@franklinmo.net; mikepstn@aol.com; marksvincent13@gmail.com; lemmons@franklinmo.net

Jacklyn Wood

Legal Coordinator

^[1] The Hearing Officer did not find Comparable #1 to be substantial and persuasive given its sales date over a year prior to the pertinent tax date of January 1, 2015.

Posted in 2016 | Comments Off on C. Michael Poston v. Tom Copeland, Assessor Franklin County

Michael Bossaller v. Jake Zimmerman, Assessor St. Louis County

December 6th, 2016

State Tax Commission of Missouri

MICHAEL BOSSALLER	)
	)
Complainant,	)
	)
v.	)	15-15879
	)
JAKE ZIMMERMAN, ASSESSOR,	)
ST. LOUIS COUNTY, MISSOURI,	)
	)
Respondent.	)

DECISION AND ORDER

HOLDING

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

True value in money for the subject property for tax years 2015 and 2016 is set at $118,500, commercial assessed value of $37,920.

Complainant appeared pro se.

Respondent appeared by attorney Steven Robson

Case heard and decided by Senior Hearing Officer John Treu.

ISSUE

Complainant appeals, on the ground of overvaluation and discrimination, 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, 2015. The value as of January 1 of the odd numbered year remains the value as of January 1 of the following even numbered year unless there is new construction and improvement to the property. Section 137.115.1 RSMo

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

FINDINGS OF FACT

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.
Evidentiary Hearing. The Evidentiary Hearing was held on November 23, 2016 at the St. Louis County Administration Building, Clayton, Missouri.
Identification of Subject Property. The subject property is identified by map parcel number or locator number 14J520346. It is further identified as 3733 North Hanley, St. Louis, Missouri. (Complaint for Review of Assessment)
Description of Subject Property. The subject property consists of a commercial tract of land improved by multiple structures of which 5,295 square feet are covered by a roof. The subject property is abutted by property or properties which could constitute a nuisance (St. Louis County Assessor’s Public Database and Complainant’s Testimony).
Assessment. The Assessor valued the property at $118,500, commercial assessed value of $37,920. The Board of Equalization sustained the assessor’s valuation (Ex. 1)
Complainant’s Evidence. Complainant offered into evidence Exhibit A and Exhibit B. Exhibit A consisted of multiple photographs. Exhibit B consisted of multiple documents and photographs. The photographs depict the property and surrounding area. They include photographs of structures, stacks of tires, utility property, dumpsters, and salvage vehicles. The documents include notices from the Village of Bel-Ridge to the Complainant to paint his structures and to tend to weeds. Other documents were dated from the late 1980s and 1990s. The exhibits were received into evidence without objection to be given such weight as the Hearing Officer deemed appropriate.
No Evidence of New Construction & Improvement. There was no evidence of new construction and improvement from January 1, 2015 to January 1, 2016 therefore the assessed value for 2015 remains the assessed value for 2016. Section 137.115.1, RSMo.
Respondent’s Evidence. Respondent offered into evidence Exhibit 1. Exhibit 1 consisted of the Board of Equalization Decision. Exhibit 1 was received into evidence without objection.
Presumption of Correct Assessment Not Rebutted. Complainant’s evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board.

CONCLUSIONS OF LAW AND DECISION

Jurisdiction

The Commission has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious. The hearing officer shall issue a decision and order affirming, modifying or reversing the determination of the board of equalization, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious. Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo.

Basis of Assessment

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

Presumption In Appeal

Complainant’s Burden of Proof

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. 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). True value in money is defined in terms of value in exchange and not value in use. 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).

It is the fair market value of the subject property on the valuation date. Hermel, supra.

Implicit in this definition are the consummation of a sale as of a specific date and the passing of title from seller to buyer under conditions whereby:

Buyer and seller are typically motivated.

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

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

Payment is made in cash or its equivalent.

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

The price represents a normal consideration for the property sold unaffected by special financing amounts and/or terms, services, fees, costs, or credits incurred in the transaction. 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.

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. See, Nance v. STC, 18 S.W.3d 611, at 615 (Mo. App. W.D. 2000); Hermel, supra; Xerox Corp. v. STC, 529 S.W.2d 413 (Mo. banc 1975). Missouri courts have approved the comparable sales or market approach, the cost approach and the income approach as recognized methods of arriving at fair market value. St. Joe Minerals Corp. v. STC, 854 S.W.2d 526, 529 (App. E.D. 1993); Aspenhof Corp. v. STC, 789 S.W.2d 867, 869 (App. E.D. 1990); Quincy Soybean Company, Inc., v. Lowe, 773 S.W.2d 503, 504 (App. E.D. 1989), citing Del-Mar Redevelopment Corp v. Associated Garages, Inc., 726 S.W.2d 866, 869 (App. E.D. 1987); and State ex rel. State Highway Comm’n v. Southern Dev. Co., 509 S.W.2d 18, 27 (Mo. Div. 2 1974).

Owner’s Opinion of Value

Weight to be Given Evidence

Complainant Fails to Prove Value

Complainant proposes a value of $59,250 which is precisely one-half of the value determined by the Assessor and Board of Equalization. Complainant presented no evidence utilizing any accepted method of appraisal to support his proposed value. Complainant’s exhibits and testimony shows that the areas around subject property might constitute a nuisance. However, Complainant did not provide substantial and persuasive evidence that the Respondent’s determination of value did not consider any impact of the surrounding properties’ condition or establish the true value of the property and the monetary impact of such nuisance on the subject property’s true market value. Consequently, Complainant failed to meet his burden of proof.

In fact, Complainant’s own testimony supports Respondent’s valuation. Complainant asserts that he has publically advertised the property for many years, whether through on-line listings or a sign on the subject property. Complainant testified that he had received only one offer on the property, such being for the amount of $50,000 in October of 2016. Yet, on cross-examination by Respondent’s counsel, Complainant testified that he tells people that he would want between $150,000 and $175,000 for the property.

Although the Hearing Officer recognizes that a stated desired price and the price one would sell a property for are different, Complainant’s desired price is between $31,500 and $56,500 more than the true market value determined by the Assessor and Board of Equalization. If Complainant was only able to sell the property for 79% of the lower of his desired values ($150,000), such would equal the true market value set by the Assessor and Board of Equalization. Instead of rebutting the Board of Equalization presumption, this fact supports the true market value determined by the Assessor and sustained by the Board of Equalization.

Complainant Fails To Prove Discrimination

Where there is a claim of discrimination based upon a lack of valuation consistency, Complainants have the burden to prove the level of assessment for the subject property in 2015. This is done by independently determining the market value of the subject property and dividing the market value into the assessed value of the property as determined by the assessor’s office.

Complainants must then prove the average level of assessment for residential property in St. Louis County for 2015. This is done by (a) independently determining the market value of a representative sample of commercial properties in St. Louis County; (b) determining the assessed value placed on the property by the assessor’s office for the relevant year; (c) dividing the assessed value by the market value to determine the level of assessment for each property in the sample; and (d) determining the mean and median of the results.

The difference between the actual assessment level of the subject property and the average level of assessment for all commercial property, taken from a sufficient representative sample in St. Louis County must demonstrate a disparity that is grossly excessive.

Complainant’s discrimination claim fails because he failed to establish the market value of his property. Without establishing the market value, Complainant cannot establish his assessment ratio. Without establishing his ratio, he cannot establish that he is being assessed at a higher percentage of market value that any other property.

However, even if Complainant had established his market value, his discrimination claim would still fail because he did not demonstrate that a statistically significant number of other commercial properties within St. Louis County are being assessed at a lower ratio of market value than his property. Because Complainant has failed to establish the market value of his property and has failed to establish that he is being assessed at a higher percentage of market value than a statistically significant number of other properties in St. Louis County, he has failed to establish discrimination.

ORDER

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

The assessed value for the subject property for tax years 2015 and 2016 is set at $37,920.

Application for Review

Failure to state specific facts or law upon which the application for review is based will result in summary denial. Section 138.432, RSMo

Disputed Taxes

The Collector of St. Louis County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending the possible filing of an Application for Review, unless said taxes have been disbursed pursuant to a court order under the provisions of Section 139.031.8, RSMo.

Any Finding of Fact which is a Conclusion of Law or Decision shall be so deemed. Any Decision which is a Finding of Fact or Conclusion of Law shall be so deemed.

SO ORDERED this 6^th day of December, 2016.

STATE TAX COMMISSION OF MISSOURI

John Treu

Senior Hearing Officer

Certificate of Service

I hereby certify that a copy of the foregoing has been emailed on this 6th day of December, 2016 to: syoutzy@stlouisco.com; srobson@stlouisco.com; mgbozler@gmail.com

Jacklyn Wood

Legal Coordinator

Posted in 2016 | Comments Off on Michael Bossaller v. Jake Zimmerman, Assessor St. Louis County

Knox County Community Center v. Anita James, Assessor Knox County

November 22nd, 2016

STATE TAX COMMISSION OF MISSOURI

KNOX COUNTY COMMUNITY CENTER,	)	Appeal No.	15-63500
Complainant,	)		15-63501
	)
v.	)
	)
ANITA JAMES, ASSESSOR	)
KNOX COUNTY, MISSOURI,	)
Respondent.	)

DECISION AND ORDER

HOLDING

Decision of the County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED. Complainant failed to present substantial and persuasive evidence establishing the property is exempt under Article X, Section 6 of the Missouri Constitution.

ISSUE

Complainant contests the taxability of real property, furniture and equipment.

EVIDENCE

The Complainant filed the following Exhibits:

EXHIBIT	DESCRIPTION
A	501(c)(3) Exempt Federal Income Tax Letter issued March 2, 2011.
B	State of Missouri Limited Exemption from Missouri Sales and Use Tax issued on April 7, 2014.
C	By-Laws of Knox County Community Center Article II: Community Center is organized exclusively for charitable, religious, education and scientific purposes, ….to promote quality of living and well being for people of all ages by education through fitness, recreation and wellness opportunities. Article XII: No part of the net earnings of the Subcommittee shall inure to the benefit of, or be distributed to its members, …If for some reason the subcommittee should dissolve…any excess money will be donated to a charitable, government, religious, or educational institution …
D	Articles of Incorporation
E	Certificate of Incorporation Missouri Nonprofit
F	Articles of Amendment for a Nonprofit Corporation to amended Articles (7)(8) for distribution to one or more tax exempt purposes
G	Certificate of Amendment for a Nonprofit Corporation
H	List of Events Sponsored by Complainant for outside groups
I	Updated List of Events Sponsored by Complainant for outside groups
J	Knox County Community Center Webpage setting forth their purpose of the three prongs of healthy living: fitness, nutrition and tobacco-free.”
K	Testimony of Lori Moots-Clair
L	Testimony of Thomas Christen
M	Testimony of Shannon Kiehl

Complainant states their organization’s purpose is “the three prongs of healthy living: fitness, nutrition and tobacco-free.” Complainant owns and operates a facility which includes a 24 hour fitness facility, “education hall” and kitchen. The educational hall is used for classes taught by staff and for outside events. The events were categorized as “sponsored”, “discounted” and “reduced rate”. The sponsored events included: Red Cross Blood Drive, PTO Game Night and Movie, Marcia Taylor Dance Studio dance classes, Martial Arts, and other activities. Discounted events included those for the City of Edina, MU Extension, Stryker Benefit (fundraiser for a child with cancer), and Chamber of Commerce Trivia Tournament. Reduced rate events included Christmas in Edina, Relay for Life Fundraising Dinner, Nutrition and Fitness Education, Smoking Cessation Course, Basic Nutrition Course, and Holiday Weight Loss Challenge.

The Respondent filed the following Exhibits:

EXHIBIT	DESCRIPTION
1	Property Record Card
2	Ground Lease
3	2015 Business Personal Property List
4	Missouri Revised Statute Section 137.100(5)
5	State of Missouri Limited Exemption Letter for Sales and Use Tax
6	Webpage of Knox County Community Center
7	Copy of KTVO Interview (excluded)
8	STC Decision 10-10588 Big Bend Woods Bath & Tennis Club
9	Chapter 2.4 of the Assessor’s Manual

The Responded elicited testimony on cross-examination that the Complainant sells memberships to the 24 hour fitness facility. The membership prices range from a Student Membership of $5 per day to $120 per year to a Family Membership of $5 per day to $360 per year. The Complainant has no sliding scale for membership prices and offers no scholarships.

The Respondent elicited testimony on cross-examination that the Complainant rents their Education Hall. The Education Hall rates range from $50 plus $50 deposit to $600 plus $200 deposit. The hall may be reserved for classes, meetings, gatherings, events, and weddings. Events held at the hall at the full rental rate include auctions, weddings, employee training by railroad and other companies, and other private events. The witnesses estimated that 25% of the use of the education hall was private events.

FINDINGS OF FACT

Jurisdiction. Jurisdiction over this appeal is proper. Complainant timely appealed to the State Tax Commission from the decision of the County Board of Equalization. A hearing on the Complaints for Review of Assessment was conducted on October 24, 2016 in Edina, Missouri.
Identification of Subject Property. The subject property is located at 207 North 4^th Street, Edina, Missouri. The property is identified by map parcel number 07-04.0-18-03W032.001.00.002. The personal property is identified as account number 1942.
Description of Subject Property The subject property is improvements[1] to real property. The improvements include a building of approximately 11,000 square feet housing a 24 hour fitness facility, rental (Educational) hall and kitchen. The personal property includes equipment found in most fitness facilities (cardio and strength) and those found for meeting and reception rooms including sound system and projectors.
Ownership of the Property Complainant is a general not-for-profit organization. Complainant describes their organization’s purpose as “the three prongs of healthy living: fitness, nutrition and tobacco-free.”
Use of the Property The property is used as other 24 hour fitness facilities – cardio and strength training through equipment and instruction. The property is also used for community purposes such as exercise classes by the Arthritis Foundation, blood drives, VFW Memorial Days Services, candidate forums, and Health Department Health Fairs. The property is also used as a rental facility for corporate training, auctions, reunions, weddings, and other events which make up to 25% of its use.
Operation of the Property Although no financial documents were provided, there was no evidence that any funds in excess of expenses were used for purposes other than the continued maintenance and operation of the subject property.
Taxation of the Property The evidence presented as to the current use of the property does not establish that the property should be exempt from taxation.

CONCLUSIONS OF LAW AND DECISION

Jurisdiction

Presumption In Appeal

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization. Hermel, Inc. v. STC, 564 S.W.2d 888, 895 (Mo. banc 1978); Chicago, Burlington & Quincy Railroad Co. v. STC, 436 S.W.2d 650, 656 (Mo. 1968); May Department Stores Co. v. STC, 308 S.W.2d 748, 759 (Mo. 1958). This presumption is a rebuttable rather than a conclusive presumption. The presumption of correct assessment is rebutted when the taxpayer presents substantial and persuasive evidence to establish that the Board’s valuation is erroneous and what the fair market value should have been placed on the property. Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See, Cupples-Hesse, supra. 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. Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975).

Exemptions

Tax exemptions are not favored in the law and statutes granting exemptions are to be strictly, yet reasonably, construed against the one claiming the exemption. Missouri Church of Scientology v. State Tax Commission, 560 S.W.2d 837, 844 (Mo. Banc 1987), State ex rel. Union Electric Co. v. Goldberg, 578 SW2d 921,923 (Mo. Banc 1979). The legal authority for property tax exemptions is located in Article X, Section 6, of the Missouri Constitution and at Section 137.100, RSMo. The exemptions include:

…all property, real and personal, not held for private or corporate profit and used exclusively for religious worship, for schools and colleges, for purposes purely charitable, or for agricultural and horticultural societies…. Article X, Section 6, of the Missouri Constitution.

Charitable Exemption

The legal test for a charitable exemption is whether:

(1) The property is dedicated unconditionally to the charitable activity;

(2) The property is owned and operated on a not for profit basis; and

(3) The dominant use of the property is for the benefit of an indefinite number of people and directly or indirectly benefits society generally. Franciscan Tertiary Province of Missouri v. State Tax Commission, 566 S.W.2d 213, 224 (Mo Banc 1978); Twitty v. State Tax Commission, 896 S.W.2d 680, 684 (Mo. App. S.D. 1995).

Owner and Operated on a Not-for-Profit basis

The property must be owned and operated on a not-for-profit basis. The property “must be dedicated unconditionally 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 achievement of the charitable objectives of the project.” Franciscan Tertiary Province v. State Tax Commission, 566 S.W.2d 213, at 224 (Mo. banc 1978). This does not mean that the property or charity cannot operate “in the black”.

In the subject appeal, financial information was not provided therefore it is unknown whether the property operated in the black or on a deficit basis. The issue of profitability was not raised and therefore it will be presumed that the monies collected in membership and rental fees were used to cover the cost of the facility and for the purpose of the organization.

Actual and Regular Use for Charitable Purpose

In order for a property to be exempt from taxation for state, county or local purposes, the property must be actually and regularly used exclusively for a charitable purpose, as charity is defined by Salvation Army v. Hoehn, 188 S.W.2d 826 (Mo. banc 1945). “Charity” is therein defined as “. . .a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their hearts under the influence of education or religion, by relieving their bodies of disease, suffering or constraint, by assisting them to establish themselves for life, or by erecting or maintaining the public buildings or works or otherwise lessening the burdens of government.” Salvation Army at 830. Exemption rests on the use of the property not merely charitable character of the owner. The phrase “regularly used exclusively” has been interpreted to mean the primary inherent or dominate use of the property as opposed to a mere secondary and incidental use.

The primary and direct beneficiaries of the subject property and its recreational use are those persons who are members using the 24 hour fitness facility after paying their membership fee. Beneficiaries also include those renting the hall for private weddings, family reunions, private auctions and corporate training. While the organization does provide the space for sponsored and reduced rates activities such as Red Cross Blood Drive, PTO Game Night and Movie, Marcia Taylor Dance Studio Dance Classes, Martial Arts, and senior exercise and balancing classes, those are secondary activities of the property.

The use of Complainant’s property as an athletic club and a rental hall does not directly relieve bodies, establish life or lessen the burdens of government. It is possible that while some of the secondary activities occurring at the education hall provides the benefits to society as testified to by the witnesses (new business activity, sidewalks, healthier community), such benefits requires speculation.

Dedicated Unconditionally to the Charitable Activity

The property must be used such that it is available to an indefinite group of people, rendered at cost or less, which brings their hearts under the influence of education or lessens the burden of government. The public nature of a charity is diminished when it is systematically denied to those who need and can least afford the service. Many worthwhile organizations held events at the Education Hall for free or at a reduced rate. However, twenty-five percent of the rentals were used for private purposes including family reunions, weddings, auctions, and corporate training and paid the full rental fee. Such events may not necessarily be “fatal” to the determination of exemption if the events are merely secondary or incidental uses such that they do not interrupt the exclusive use of the building or such that they “dovetail into or rounds out”[2] the charitable organization’s purposes. The private events are substantial enough to be considered more than incidental use of the property and the events, such as private auction and training, do not dovetail or round out the Complainant’s purposes.

Further, the 24 hour fitness facility is only available to those paying the membership fee. There are no free membership opportunities or reduced rate memberships and therefore the property was not shown to be available to an indefinite group of people.

ORDER

The determination of taxability of the subject property as determined by the BOE is AFFIRMED.

Application for Review

Failure to state specific facts or law upon which the application for review is based will result in summary denial. Section 138.432, RSMo

Disputed Taxes

The Collector of Knox 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 November 22, 2016.

STATE TAX COMMISSION OF MISSOURI

Maureen Monaghan

Hearing Officer

Certificate of Service

I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 22^nd day of November, 2016, to: Complainants(s) counsel and/or Complainant, the County Assessor and/or Counsel for Respondent and County Collector.

Jacklyn Wood

Legal Coordinator

[1] Improvements are on real property owned by the County. The County charges nominal rent. As valuation was not an issue, the determination as to the existence of any bonus value was not made.

[2] Salvation Army v. Hoehn , 188 SW2d 826 (SCt 1945)

Posted in 2016 | Comments Off on Knox County Community Center v. Anita James, Assessor Knox County

Skaggs Community Hospital Association v. Chuck Pennel, Assessor Taney County

November 22nd, 2016

STATE TAX COMMISSION OF MISSOURI

SKAGGS COMMUNITY HOSPITAL ASSOCIATION	)
	)
Complainant,	)
	)
v.	)	Appeal No.	15-89509
	)
CHUCK PENNEL, ASSESSOR	)
TANEY COUNTY, MISSOURI,	)
	)
Respondent.	)

DECISION AND ORDER

HOLDING

Decision of the County Board of Equalization sustaining the assessment made by the Assessor is SET ASIDE. Complainant presented substantial and persuasive evidence establishing the property is exempt under Article X, Section 6 of the Missouri Constitution.

ISSUE

Complainant (Skaggs) contests the taxability of the subject property.

EVIDENCE

The Complainant filed the following Exhibits which were admitted without objection

EXHIBIT	DESCRIPTION
A	Decree of Circuit Court
B	Decree of Circuit Court
C	Petition for Approval of Articles of Acceptance
D	Certificate of Acceptance by Secretary of State
E	Articles of Amendment to the Articles of Acceptance
F	Bylaws of Skaggs Community Hospital Association
G	Certificate of Good Standing
H	IRS Correspondence
I	IRS Correspondence
J	Financial Information
K	Property Uses
L	BOE Correspondence
M	Taney County Application of Real Property Tax Exemption
N	BOE Decision
O	Complaint for Review of Assessment
P	Statement of Profit and Loss for Period Ending 9/30/14
Q	Statement of Profit and Loss for Period Ending 4/30/15
R	Composition of Board of Directors

The Respondent filed no exhibits.

The parties agreed to submit the appeal solely upon the submission of the Complainant’s Exhibits.

FINDINGS OF FACT[1]

Jurisdiction. Jurisdiction over this appeal is proper. Complainant timely appealed to the State Tax Commission from the decision of the County Board of Equalization. The appeal was submitted on the record by agreement of the parties.
Identification of Subject Property. The subject property is located at 121 Cahill Road, Branson, Missouri. The property is identified by map parcel number 08-9.-32-001-004-001.001.
Description of Subject Property The subject property is a one-story brick building with a walkout basement and parking lot located on the Real Property, which houses what is generally referred to as the “Ortho-Neuro” building. The building is used to house hospital clinics and departments. Skaggs provides health care services on this Real Property, including physical therapy, drug screenings for new employees, orthopedic and MRI services, pain and neurology services, and rheumatology services. For example, on the basement floor of the building, Skaggs provides rehabilitation and therapy programs. The first floor houses an Occupational Medicine hospital clinic, which provides care for all occupational and work-related healthcare needs. This includes injury and illness prevention and management services which are designed to significantly reduce workers’ compensation costs and improve the health of employees. In addition, the Rheumatology hospital clinic provides the diagnosis and treatment of arthritis and other diseases of the joints, muscles and bones. Also on the first floor is Pain and Neurology, a hospital clinic, which includes providing treatment for disorders and injuries that affect the brain and nervous system, including stroke, Alzheimer’s disease, dementia, Parkinson’s disease, epilepsy, and chronic headaches and migraines. The Pain Center clinic offers the evaluation, diagnosis, and interventional treatment for the management of pain and related disorders. Finally, the Skaggs Orthopedic clinic is located on the first floor, as well as the MRI department.

The Articles of Acceptance provide that Skaggs is organized exclusively for charitable purposes, specifically to establish, among other things, a hospital in Branson, Missouri. Furthermore, the Articles provide that Skaggs is:

“formed for the purpose of purchasing a location of the site of [a] hospital. And also for the further purpose of building, erecting, maintaining, operating and supervising the carrying on of a first class hospital for the care, welfare and benefit of the patients, and where the best medical and surgical ministration of the sick, infirmed, and disabled may be obtained. And finally for the purpose of fighting and combating disease of the human mind and body and doing all things or anything legally necessary in the operation and supervision of said hospital, in a first class manner, to the best interest and care of those entering its portal.”

The Real Property was purchased by Skaggs on February 28, 2007. Skaggs is exempt from federal income tax under § 501(c)(3). Contributions made to Skaggs are tax deductible. Skaggs received exempt status as a charitable organization from the State of Missouri for Sales and Use Tax on purchases and sales under section 144.040.2, RSMo. (Direct Testimony of David Strong, Exhibit C, Exhibit H, Exhibit I, Exhibit J, Form 990 and Exhibit K).

Ownership of the Property Complainant Skaggs is organized under the Missouri Nonprofit Corporation Act, and is a not-for-profit corporation that owns and operates a hospital and clinics in Southwest Missouri. Skaggs was originally incorporated for the construction and operation of a hospital for the care, welfare, and benefit of its patients.
Use of the Property Skaggs purpose is to improve the health of the communities served by Skaggs through quality health care, education, and research. An indefinite number of individuals benefit from the services provided by Skaggs. Those individuals include members of local and surrounding communities, without regard to race, religion, age, sex, or national origin. Skaggs also has an indigent care policy for individuals that need health care services but that cannot afford them. The Real Property is occupied exclusively by Skaggs. No part of the Real Property is used by persons or organizations other than Skaggs. Furthermore, the Real Property is not held or used as an investment. No portion of the Real Property is leased or rented to other parties or organizations. (Direct Testimony of David Strong, Exhibit A, Exhibit B, Exhibit C, Exhibit D, Exhibit E and Exhibit F).
Operation of the Property No part of the net earnings or other assets of Skaggs inure to the benefit of, or are distributable to any director, officer, contributor, or other private person with a direct or indirect, personal or private interest in the activities of Skaggs, except for reasonable compensation for services rendered and to make payments and distributions in furtherance of the purposes set forth in the Articles of Acceptance. Skaggs does not carry on any other activities not permitted to be carried on by a corporation exempt from federal income taxation under § 501(c)(3) of the Internal Revenue Code of 1986, as amended, or of a corporation, contributions to which are deductible under § 170(c)(2) of the Internal Revenue Code of 1986, as amended.

In the event of a dissolution of Skaggs, the assets are to be distributed to the Skaggs Foundation, or for one or more exempt purposes within the meaning of § 501(c)(3) of the Internal Revenue Code, or shall be distributed to the federal government, or to any state or local government, for a public purpose. Skaggs accepts Medicaid, Medicare, insurance or private payment as payment for its services. Skaggs is designated by Medicare as a sole community hospital and as such, is the sole source of hospital care within a 35-mile radius. Serving patients with government health benefits, such as Medicare, is a component of the community benefit standard that tax-exempt hospitals are held to. In addition, Skaggs screens all self-pay patients for Medicaid. If an individual does not qualify, they are directed to speak with a financial counsel who screens for charity care/indigent care. By accepting Medicaid and Medicare, Skaggs is available to people who could not otherwise afford health care. In the case of Medicaid and Medicare, the amount of money the patient must pay is determined by Medicaid or Medicare, not by Skaggs.

Skaggs has an indigent care policy. Through its indigent care policy, Skaggs provides free or discounted health care services to those in the community who are unable to afford treatment based partially on federal poverty household income guidelines. Skaggs has a process in place to identify financially or medically indigent patients, qualify them for charity care according to written guidelines, and provide quality health care. Skaggs uses point of service individuals, outside agencies and vendors, and financial counselors to identify financially and medically indigent individuals. Financial assistance availability is proactively communicated to uninsured patients by customer service staff and other means. In the event that a patient is determined to have no means of paying the amount indicated as their responsibility due to extenuating circumstances, consideration may be given to waiving deductibles and/or increasing the discount amount up to a 100% discount of the patient portion. Skaggs attempts to collect payment for services from those that have the ability to pay. By collecting payment from those who can afford to pay, Skaggs is able to continue providing health care services to the community at large. However, Skaggs does not charge interest on any balance remaining after applying financial assistance discounts. These services are provided in rural areas where there would be a shortage of quality medical care without the services. Skaggs continues to provide these services as a benefit to the community despite knowing that financial shortfalls will be sustained. (Direct Testimony of David Strong, Exhibit C, Exhibit D, Exhibit E, Exhibit F, Exhibit J and Exhibit M).

Taxation of the Property. The evidence presented as to the current use of the property establishes that the property should be exempt from taxation

CONCLUSIONS OF LAW AND DECISION

Jurisdiction

Presumption In Appeal

Issuance of Decision Absent Evidentiary Hearing

The Hearing Officer, after affording the parties reasonable opportunity for fair hearing, shall issue a decision and order affirming, modifying or reversing the determination of the Board of Equalization, correcting any assessment which is unlawful, unfair, improper, arbitrary or capricious. Section 138.431.5 RSMo; 12 CSR 30-3.080 (2). Both parties agreed to submit this case upon the record. The filing of exhibits and written direct testimony establishes the basis upon which opportunity for an evidentiary hearing can be held. The Complainant has the burden to present substantial and persuasive evidence. The Hearing Officer considered all the exhibits and written direct testimony and then proceeded to ascertain if said exhibits and written direct testimony met the standard of substantial and persuasive evidence to establish the market value of the property.

Exemptions

Charitable Exemption

The legal test for a charitable exemption is whether:

(1) The property is dedicated unconditionally to the charitable activity;

The property is owned and operated on a not for profit basis; and
The dominant use of the property is for the benefit of an indefinite number of people and directly or indirectly benefits society generally. Franciscan Tertiary Province of Missouri v. State Tax Commission, 566 S.W.2d 213, 224 (Mo Banc 1978); Twitty v. State Tax Commission, 896 S.W.2d 680, 684 (Mo. App. S.D. 1995).

Owner and Operated on a Not-for-Profit basis

Actual and Regular Use for Charitable Purpose

In order for a property to be exempt from taxation for state, county or local purposes, the property must be actually and regularly used exclusively for a charitable purpose, as charity is defined by Salvation Army v. Hoehn, 188 S.W.2d 826 (Mo. banc 1945). “Charity” is therein defined as “. . . a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their hearts under the influence of education or religion, by relieving their bodies of disease, suffering or constraint, by assisting them to establish themselves for life, or by erecting or maintaining the public buildings or works or otherwise lessening the burdens of government.” Salvation Army at 830. Exemption rests on the use of the property not merely charitable character of the owner. The phrase “regularly used exclusively” has been interpreted to mean the primary inherent or dominate use of the property as opposed to a mere secondary and incidental use.

Dedicated Unconditionally to the Charitable Activity

Hospitals

Jackson County v. State Tax Commission, 521 S.W.2d 378 (Mo. banc 1975), held that a charitable use includes a hospital so long as it is operated in a not-for-profit manner and is available to rich and poor alike. A hospital which meets the test is a charity. No further proof that a certain number or percentage of indigent patients are served is necessary. In Jackson County, there was no evidence that anyone had been denied admission to the hospital because of inability to pay.

Discussion

Complainant (Skaggs) provides rehabilitation and therapy programs, occupational medicine care; rheumatology services; neurological diagnosis and treatment; pain management evaluation, diagnosis and treatment; orthopedic care; and MRI services. Such leads to rehabilitating individuals with injuries so that they can lead productive lives; assisting individuals with work-related healthcare needs; preventing injuries and illnesses; diagnosing and treating arthritis and other diseases of the joints, muscles and bones; providing treatment for neurological diseases and disorders, including stroke, Alzheimer’s disease, dementia, Parkinson’s disease, epilepsy, chronic headaches and migraines; providing pain management services; as well as orthopedic care and MRI services. The provision of medical services in a clinic or hospital setting clearly qualifies as an appropriate use under the Salvation Army definition in that medical treatment directly benefits people by relieving their bodies of disease, suffering, or constraint. See St. John’s Health System v. Strahan, Appeal No. 00-89501 and 00-89502.

Based upon the facts presented, Complainant submitted substantial and persuasive evidence that it fulfills the requirements as set forth above and in Affiliated Medical Transport, Inc. v. State Tax Comm’n, 755 S.W.2d 646, 650 (Mo. App. E.D. 1988) and Callaway Community Hospital v. Craighead, 759 S.W.2d 253, 256 (Mo. App. W.D. 1988). There was no evidence that anyone had been denied admission to the medical facilities because of the inability to pay. No evidence that any non-hospital areas did not dovetail or rounded out the charitable use. Lastly, there was no evidence of profit to individuals or corporations.

ORDER

The determination of taxability of the subject property as determined by the BOE is SET ASIDE. The subject property is determined to be exempt.

Application for Review

Failure to state specific facts or law upon which the application for review is based will result in summary denial. Section 138.432, RSMo

Disputed Taxes

The Collector of Taney 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 November 22, 2016.

STATE TAX COMMISSION OF MISSOURI

John Treu

Senior Hearing Officer

Certificate of Service

Jacklyn Wood

Legal Coordinator

[1] Substantial portions of the Findings of Fact are Direct Quotes from Complainant’s Brief or paraphrased from such.

Posted in 2016 | Comments Off on Skaggs Community Hospital Association v. Chuck Pennel, Assessor Taney County

Kehr Development v. Jake Zimmerman, Assessor St. Louis County

November 22nd, 2016

STATE TAX COMMISSION OF MISSOURI

KEHR DEVELOPMENT,	)
	)
Complainant,	)
	)
v.	)	Appeal No. 12-10572
	)
JAKE ZIMMERMAN, ASSESSOR	)
ST. LOUIS COUNTY, MISSOURI,	)
	)
Respondent.	)

DECISION AND ORDER

HOLDING

The assessment made by the Board of Equalization of St. Louis County (BOE) is SET ASIDE. Subject property is to be assessed as it was in 2011; the market value of $800, agricultural assessed value of $100.

Case taken under advisement by Hearing Officer Maureen Monaghan.

ISSUE

Complainant appealed on the ground of misclassification.

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

FINDINGS OF FACT

Jurisdiction. Jurisdiction over this appeal is proper. Complainant timely appealed to the State Tax Commission.
Evidentiary Hearing. The issue of classification was submitted on exhibits at the request of the parties.
Identification of Subject Property. The subject property is identified by parcel/locator number 17U130734. It is further identified as 702 Long Road Crossing Drive, St. Louis County, Missouri.
Assessment. In 2011, the property was classified as agricultural and appraised at $800 ($100 assessed value). In 2012, the property was classified as commercial and appraised at $143,800.
Board of Equalization. The BOE sustained Respondent’s true market value and classification of the subject property in 2012.
Complainant’s Evidence.

Exhibit	Description
A	Affidavit of Rand Rupel: He farmed the property in June 2012
B	Affidavit of Christopher Kehr: The property was planted in late 2010 and again in May or June 2012.
C	Ruppel Brothers Statement that they maintain the property
D	Invoice Ruppel Brothers dated 7/6/2012 for brushhogging, disking, planting
E	BOE RE6 Supplemental: Agricultural Property.
F	Assessment Appeal Form with attached Exhibit of an Impact Notice dated June 4, 2012 indicating a change of classification from Agricultural to Commercial and Reason for Change: Change in Class
G	IRS Form 4835 Farm Rental
H	Bill for spraying winter wheat October 2012
I	Photographs of property in October 2012
J	Photographs of property in October 2012
K	Photographs of property in October 2012
L	Bill for sowing wheat in December 2003- 2007
M	Combined Services bill to Complainant to brush hog lot twice a year from 2008 thru 2011
WDT	Christopher Kerr: He has been planting on this property since 2001. A leased farming occurred from 2001 to 2008. The property was brush hogged only until 2012. The witness testified that there was construction on or around the property in 2004 and 2007-2008.

Respondent’s Evidence Respondent filed no evidence.
Classification. The property’s proper classification in 2012 is agriculture. The classification of real property is part of an assessment and cannot change in the even year without new construction.

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, including the application of any abatement. The Hearing Officer shall issue a decision and order affirming, modifying or reversing the determination of the Board of Equalization, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious. Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo.

Issuance of Decision Absent Evidentiary Hearing

The Hearing Officer, after affording the parties reasonable opportunity for fair hearing, shall issue a decision and order affirming, modifying or reversing the determination of the Board of Equalization, correcting any assessment which is unlawful, unfair, improper, arbitrary or capricious. Section 138.431.5 RSMo; 12 CSR 30-3.080 (2) The filing of exhibits and written direct testimony establishes the basis upon which opportunity for an evidentiary hearing can be held. The Complainant has the burden to present substantial and persuasive evidence. The Respondent did not file any rebuttal exhibits. Therefore, the Hearing Officer simply considered the exhibit filed and then proceed to ascertain if said exhibit met the standard of substantial and persuasive evidence to establish the market value of the property.

Basis of Assessment

Two-Year Assessment Cycle

The Assessor shall annually assess all real property in the following manner: new assessed values shall be determined as of January first of each odd-numbered year and shall be entered in the assessor’s books; those same assessed values shall apply in the following even-numbered year, except for new construction and property improvements which shall be valued as though they had been completed as of January first of the preceding odd-numbered year. Section 137.115.1, RSMo.

The exception to the “two-year cycle” occurs when agricultural “becomes property other than agricultural and horticultural property.” In this limited circumstance, the property shall be reassessed as of the following January first, i.e., the even year.

Statutes Given Effect As Written

Statutes are to be given effect as written and there is no need for construction of a statute which is clear on its face. The plain language of the statue is to be given effect. State Bd. of

Registration for Healing Arts v. Boston, 72 S.W.3d 260 (Mo. App. W.D. 2002); Bright v. Bright, 989 S.W.2d 196 (Mo. App. S.D. 1999); McDermott v. Carnahan, 934 S.W.2d 285 (Mo. 1996).

Classification of the Property

The assessor makes two determinations when assessing property: (1) true value in money and (2) classification. The property was classified as agricultural as of January 1, 2011. No change in classification can be made in the present case as the Assessor may only assess properties in the odd-numbered unless it is established that the property became something other than agricultural and horticultural property. See Two-Year Assessment Cycle

Because the word “shall” is used throughout the statute setting forth the authority of the assessor, the assessor is mandated to use the same assessment in the even-numbered year as was used in the preceding odd-numbered year with the sole exception being where there has been new construction and property improvements. In the present case, the qualifying condition of new construction or property improvements does not exist. Although there was testimony of construction on and around the property in prior cycles, there was no evidence of new construction or property improvements to the subject during the year 2011. The plain language of the statute must be given effect. See, Statutes Given Effect As Written, supra. The compulsory language of the statute mandates the classification remain unchanged for the year 2012.

In J.C. Nichols v. Boley, Jackson County, STC Appeal 92-33346 (1993), the Commission held that “because there was no new construction and property improvements during 1991, the commercial classification must be maintained for 1992; otherwise, the assessed value would be changed.” The “change” would be, of course, in violation of Section 137.115.1, RSMo. A similar decision was reached in Player’s Club at St. Louis v. Muehlheausler, St. Louis County, STC Appeal 01-10810 (2003).

Since there was no new construction, the change in classification can only occur in the even-year when land was assessed as agricultural in the odd year and that land became something other than agricultural in the even-year. The subject property was classified by the Assessor in 2015 as agricultural property. The property remains classified as agricultural property unless the property became “other than agricultural” property. (Section 137.021 RSMo.) The owner testified to the planting of soybeans. The unrefuted evidence was that the property was used as agricultural in the even-year as the property was devoted primarily to the raising and harvesting of crops

The classification of the property must remain as determined in 2011 as agriculture.

ORDER

The property is assessed in 2012 as assessed in 2011:

True Value of $800

Assessed Value of $100 (Agriculture)

Application for Review

Failure to state specific facts or law upon which the application for review is based will result in summary denial. Section 138.432, RSMo

Disputed Taxes

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 November 22, 2016.

STATE TAX COMMISSION OF MISSOURI

Maureen Monaghan

Hearing Officer

Certificate of Service

I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 22nd day of November, 2016, to: Complainants(s) counsel and/or Complainant, the County Assessor and/or Counsel for Respondent and County Collector.

Jacklyn Wood

Legal Coordinator

Posted in 2016 | Comments Off on Kehr Development v. Jake Zimmerman, Assessor St. Louis County

John Brauch Jr Trustee v. Jake Zimmerman, Assessor St. Louis County

November 8th, 2016

State Tax Commission of Missouri

JOHN BRAUCH, JR. TRUSTEE	)	Appeal #	15-15497
	)
Complainants,	)
	)
v.	)
	)
JAKE ZIMMERMAN, ASSESSOR	)
ST. LOUIS COUNTY, MISSOURI.	)
	)
Respondent	)

DECISION AND ORDER

HOLDING

Decision of the County Board of Equalization lowering the assessment made by the Assessor is SET ASIDE. Substantial and persuasive evidence was presented to rebut the presumption of correct assessment by the Board of Equalization.

True value in money for the subject property for tax years 2015 and 2016 is set at $3,100,000, residential assessed value of $589,000.

Complainant appeared by attorney Cathy Steele

Respondent appeared by attorney Steven Robson

Case heard and decided by Senior Hearing Officer John Treu.

ISSUE

Complainant appeals, on the ground of overvaluation the decision of the St. Louis County Board of Equalization, which reduced 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, 2015. The value as of January 1 of the odd numbered year remains the value as of January 1 of the following even numbered year unless there is new construction and improvement to the property. Section 137.115.1 RSMo

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

FINDINGS OF FACT

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.
Identification of Subject Property. The subject property is identified by map parcel number or locator number 18M310247. It is further identified as 11 Apple Tree Lane, St. Louis, MO. (Complaint for Review of Assessment, Exhibit A and Exhibit 3)
Description of Subject Property. The subject property consists of 1.84 acre residential lot with a, single-family 2 story home constructed in 1997 with over 8,400 square feet. Amenities include 5 bedrooms above grade and 6 full bathrooms and 2 half bathrooms above grade. The home has a 3,843 square foot basement of which 3,200 square feet is finished. The home has a 4 car attached garage, 8 fireplaces and a pool. (Exhibit A and Exhibit 3)
Assessment. The Assessor valued the property at $3,805,400, as residential property. The Board of Equalization lowered the assessor’s valuation of the property to $3,600,000. (Complaint for Review of Assessment)
Complainant’s Evidence. Complainant offered into evidence the following and all were received into the evidentiary record without objection:

A	Appraisal of Joseph Dolan
B	WDT of Joseph Dolan
C	Qualifications of Joseph Dolan

No Evidence of New Construction & Improvement. There was no evidence of new construction and improvement from January 1, 2015, to January 1, 2016; therefore the assessed value for 2015 remains the assessed value for 2016. Section 137.115.1, RSMo.
Respondent’s Evidence. Respondent offered into evidence the following and all were received into the evidentiary record with to objections to Exhibits 1-3 and with the relevance objection to Exhibit 4 overruled:

1	WDT of Gerald Keeven
2	Qualifications of Gerald Keeven
3	Appraisal of Gerald Keeven
4	MARIS Listing of Subject Property for $4,350,000 as of 9/30/16

Presumption of Correct Assessment Rebutted. Both Complainant’s and Respondent’s evidence was substantial and persuasive to rebut the presumption of correct assessment by the Board of Equalization.

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. Article X, Sections 4(a) and 4(b), Mo. Const. of 1945. The constitutional mandate is to find the true value in money for the property under appeal. By statute real and tangible personal property are assessed at set percentages of true value in money. Section 137.115.5, RSMo – residential property at 19% of true value in money.

Complainants’ Burden of Proof

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, 2015. Hermel, supra. There is no presumption that the taxpayer’s opinion is correct. The taxpayer in a Commission appeal still bears the burden of proof. The taxpayer is the moving party seeking affirmative relief. Therefore, the Complainant bears the burden of proving the vital elements of the case, i.e., the assessment was “unlawful, unfair, improper, arbitrary or capricious.” See, Westwood Partnership v. Gogarty, 103 S.W.3d 152 (Mo. App. E.D. 2003); Daly v. P. D. George Co., 77 S.W.3d 645 (Mo. App. E.D. 2002); Reeves v. Snider, 115 S.W.3d 375 (Mo. App. S.D. 2003); Industrial Development Authority of Kansas City v. State Tax Commission of Missouri, 804 S.W.2d 387, 392 (Mo. App. 1991). A taxpayer does not meet his burden if evidence on any essential element of his case leaves the Commission “in the nebulous twilight of speculation, conjecture and surmise.” See, Rossman v. G.G.C. Corp. of Missouri, 596 S.W.2d 469, 471 (Mo. App. 1980).

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. 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). True value in money is defined in terms of value in exchange and not value in use. Daly v. P. D. George Company, et al, 77 S.W.3d 645, 649 (Mo. App E.D. 2002), (internal citation omitted). It is the fair market value of the subject property on the valuation date. Hermel, supra. Market value is the most probable price in terms of money which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeable and assuming the price is not affected by undue stimulus.

Implicit in this definition are the consummation of a sale as of a specific date and the passing of title from seller to buyer under conditions whereby:

Buyer and seller are typically motivated.

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

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

Payment is made in cash or its equivalent.

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

The price represents a normal consideration for the property sold unaffected by special financing amounts and/or terms, services, fees, costs, or credits incurred in the transaction. 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.

Weight to be Given Evidence

Methods of Valuation

Opinion Testimony by Experts

The facts upon which an expert’s opinion is based, like the facts sufficient to support a verdict, must measure up to the legal requirements of substantiality and probative force; the question of whether such opinion is based on and supported by sufficient facts or evidence to sustain the same is a question of law for the court. Robinson v. Empiregas Inc. of Hartville, 906 S.W.2d 829 (S.D. 1995). The State Tax Commission cannot ignore a lack of support in the evidence for adjustments made by the expert witnesses in the application of a particular valuation approach. Drey v. State Tax Commission, 345 S.W.2d 228, 234-236 (Mo. 1961), Snider v. Casino Aztar/Aztar Missouri Gaming Corp., 156 S.W.3d, 341, 348 (Mo. 2005). The testimony of an expert is to be considered like any other testimony, is to be tried by the same test, and receives just so much weight and credit as the trier of fact may deem it entitled to when viewed in connection with all other circumstances. The Hearing Officer, as the trier of fact, has the authority to weigh the evidence and is not bound by the opinions of experts who testify on the issue of reasonable value, but may believe all or none of the expert’s testimony and may accept it in part or reject it in part. Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. 1991); Curnow v. Sloan, 625 S.W.2d 605, 607 (Mo. 1981).

Presumption In Appeal

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization. Hermel, Inc. v. STC, 564 S.W.2d 888, 895 (Mo. banc 1978); Chicago, Burlington & Quincy Railroad Co. v. STC, 436 S.W.2d 650, 656 (Mo. 1968); May Department Stores Co. v. STC, 308 S.W.2d 748, 759 (Mo. 1958). 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. Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).

Both Complainant’s and Respondent’s evidence was substantial and persuasive to rebut the board presumptions and show it to be erroneous. However, the fair market value must also be proven.

Complainant and Respondent Provide Substantial and Persuasive Evidence of Value

Two appraisals were received into evidence in this appeal, one by Complainant and one by Respondent. Both appraisers were certified and licensed by the State of Missouri. The sales comparison approach was developed by both appraisers. Each appraisal utilized comparables to which adjustments were made. Both appraisals included utilization of two particular comparables, such being 12 Apple Tree Lane and 809 S. Warson Road, each less than one half mile from the subject property. Both appraisers gave weight to each. Complainant’s appraiser felt that the property at 809 S. Warson Road was of better quality than the subject and made an adjustment for such. Respondent’s appraiser felt that 12 Apple Tree Lane was of better quality than the subject and made an adjustment for such.

The Hearing Officer found the two appraisals to be substantial and persuasive read together and found the aforementioned two properties to be appropriate for utilization in valuing the subject property. By giving each appraiser’s valuations of each of such properties approximately equal weight the Hearing Officer finds a true market value of $3,100,000

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 2015 and 2016 is set at $589,000.

Application for Review

Failure to state specific facts or law upon which the application for review is based will result in summary denial. Section 138.432, RSMo

Disputed Taxes

Any Finding of Fact which is a Conclusion of Law or Decision shall be so deemed. Any Decision which is a Finding of Fact or Conclusion of Law shall be so deemed.

SO ORDERED this 8th day of November, 2016.

STATE TAX COMMISSION OF MISSOURI

John Treu

Senior Hearing Officer

Delivery or Notice was made via mail, email, fax, or personally on November 8th, 2016, to the following Individuals of this Order

Jacklyn Wood

Legal Coordinator

Posted in 2016 | Comments Off on John Brauch Jr Trustee v. Jake Zimmerman, Assessor St. Louis County

David A Desantis v. Jake Zimmerman, Assessor St. Louis County

November 8th, 2016

STATE TAX COMMISSION OF MISSOURI

DAVID A. DESANTIS,	)
	)
Complainant,	)
	)
v.	)	Appeal No. 15-16104
	)
JAKE ZIMMERMAN, ASSESSOR	)
ST. LOUIS COUNTY, MISSOURI,	)
	)
Respondent.	)

DECISION AND ORDER

HOLDING

The assessment made by the Board of Equalization of St. Louis County (BOE) is AFFIRMED. Complainant David A. DeSantis (Complainant) did not present substantial and persuasive evidence to rebut the presumption of correct assessment by the BOE.

Complainant appeared pro se.

Respondent Jake Zimmerman, St. Louis County Assessor, (Respondent) appeared by Steven Robson, Assistant County Counselor.

Case heard and decided by Senior Hearing Officer Amy S. Westermann.

ISSUE

Complainant appealed on the ground of overvaluation. Respondent initially set the true market value (TMV) of the subject property, as residential property, at $173,700. The BOE sustained Respondent’s valuation. The Commission takes this appeal to determine the TMV of the subject property on January 1, 2015.

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

FINDINGS OF FACT

Jurisdiction. Jurisdiction over this appeal is proper. Complainant timely appealed to the State Tax Commission.
Evidentiary Hearing. The issue of overvaluation was presented at an evidentiary hearing on July 28, 2016, at the St. Louis County Government Administration Building, 41 South Central Avenue, Clayton, Missouri.
Identification of Subject Property. The subject property is identified by parcel/locator number 12O120657. It is further identified as 12108 Glenpark Drive, St. Louis County, Missouri. (Complaint; Exhibit 1)
Description of Subject Property. The subject property consists of an 8,712 square foot (.20 acre) residential lot improved by a 1,580 square foot, two-story, single-family home built in 1997. (St. Louis County Real Estate Information Database) The subject property includes three bedrooms; two full bathrooms and one half bathroom; a full basement; a two-car attached garage; an open frame porch, a patio, and a deck. (St. Louis County Real Estate Information Database) The exterior consists of aluminum and vinyl. (St. Louis County Real Estate Information Database)
Assessment. Respondent set a TMV for the subject property of $173,700 residential, as of January 1, 2015.
Board of Equalization. The BOE sustained Respondent’s TMV of the subject property.
Complainant’s Evidence. Complainant testified in his own behalf. Complainant testified that he had purchased the subject property in 1998 for $135,500. Complainant testified that the subject property had been listed with a realtor. Complainant testified that the subject property was not encumbered by a mortgage and had not been listed for sale or appraised within the three years preceding the Evidentiary Hearing. Complainant testified that he had not received any offers to purchase the subject property but, if he listed it for sale, he would list it for $150,000. Complainant testified that he had not made improvements to the subject property between January 1, 2013, and January 1, 2015. Complainant opined that the subject property’s TMV as of January 1, 2015, was $150,000.

Primarily, Complainant argued that the consistent problems of water flooding the backyard of the subject property and the presence of the protected wetlands adjacent to the property adversely affected the true market value of the property. Complainant testified that to his knowledge the problem could not be remediated based on the fact that a neighbor had “filled” his backyard to stop the flooding but was fined because the area is designated as protected wetlands. Complainant testified that at one time he had obtained flood insurance from the Federal Emergency Management Agency, but now the subject property was exempt. Complainant testified that the presence and threat of the water prevented the placement of a pool or other items in the backyard. Complainant testified that, when flooding occurred, the water would rise and fall within a day but was so deep that logs would float into the yard. Complainant testified that the flooding would come within a few feet of the residence. Complainant testified that the source of the water was three natural underground springs. Complainant testified that the wetlands was ugly, had a bad odor, and was infested with mosquitoes. On cross examination, Complainant testified that the water problem affected neighboring properties but that it was worse on the subject property. In response to questioning from the Senior Hearing Officer, Complainant testified that he had not pursued a remedy for the flooding from the City of Maryland Heights but that he had spoken to neighbors about the problem.

Complainant offered as evidence to support his opinion of value (1) photographs depicting the flooding in the backyard of the subject property and showing the wetlands on one side of a wood privacy fence and a grassy area on the other side of the fence (Exhibits A and B); (2) photographs depicting various areas of the residence of the subject property showing items in deteriorated condition or in need of upgrading, replacement, or repair (Exhibits C through L); and (3) a photograph depicting the exterior of a neighbor’s residence showing a radon remediation device attached to the side of the residence (Exhibit M).

Respondent did not object to Complainant’s exhibits, which were received into the record.

Respondent’s Evidence. Respondent offered as evidence a copy of the Notice of Decision issued by the BOE sustaining Respondent’s initial assessment of the subject property. (Exhibit 1) Respondent stipulated that the subject property was partially situated in a flood plain and that the residence was exempted from the flood plain. Respondent argued that the BOE’s valuation of the subject property as of January 1, 2015, $173,700 should be sustained.

Complainant generally objected to Respondent’s Exhibit 1. Hearing no legal objection, the Senior Hearing Officer overruled the objection, and Exhibit 1 was received into the record.

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

CONCLUSIONS OF LAW AND DECISION

Jurisdiction

Basis of Assessment

Investigation by Hearing Officer

During the hearing, the Senior Hearing Officer inquired of Complainant.

Board Presumption and Computer-Assisted Presumption

There exists a presumption of correct assessment by the BOE – the BOE presumption. In charter counties or the City of St. Louis, there exists by statutory mandate a presumption that the Assessor’s original valuation was made by a computer, computer-assisted method or a computer program – the computer-assisted presumption. These two presumptions operate with regard to the parties in different ways.

The BOE presumption operates in every case to require the taxpayer to present evidence to rebut it. If Respondent is seeking to prove a value different than that set by the BOE, then it also would be applicable to the Respondent.

The computer-assisted presumption is applicable only if (1) the BOE lowered the value of the Assessor and Respondent is seeking to sustain the original assessment and (2) it has not been shown that the Assessor’s valuation was not the result of a computer assisted method. The BOE’s valuation is assumed to be an independent valuation.

In the present appeal, the BOE sustained the initial valuation of Respondent, and Complainant is seeking to change the BOE’s assessment; therefore, only the BOE presumption applies.

Complainant’s Burden of Proof

Weight to be Given Evidence

Methods of 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:

Buyer and seller are typically motivated.

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

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

Payment is made in cash or its equivalent.

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

The price represents a normal consideration for the property sold unaffected by special financing amounts and/or terms, services, fees, costs, or credits incurred in the transaction.

Discussion

In this case, Complainant’s evidence was neither substantial nor persuasive to rebut the presumption of correct assessment by the BOE. Substantial evidence is that which is relevant, adequate, and reasonably supports a conclusion. Cupples Hesse Corp., 329 S.W.2d at 702. Persuasive evidence is that which causes the trier of fact to believe, more likely than not, the conclusion advocated is the correct conclusion. Id. In particular, Complainant, who is not a certified residential real estate appraiser, did not use any of the court approved methods of valuation to arrive at an opinion of TMV for the subject property. Although Complainant’s testimony and photographic evidence specifically depicted the flooding in the backyard and the condition of the protected wetlands adjacent to the subject property, none of Complainant’s evidence provided any market data assigning a particular value to the problems created by the flooding and wetlands and did not provide bids or estimates for mitigating or remediating the water problem. Notably, Complainant testified that he had not pursued a remedy for the problems created by the flooding and wetlands from any agency or governing body even though he asserted that the wetlands were protected. Additionally, Complainant’s evidence of the deteriorated condition of the subject property resembled an attempt to utilize the replacement-cost-less-depreciation method for determining TMV, but Complainant failed to establish the current depreciated value of the subject property to be subtracted from the value of the subject property if the repairs and replacements were completed. Consequently, based on the evidence presented, one would be forced to speculate in order to conclude that the flooding, the wetlands, and the need for some repairs and replacements were not considered by the BOE when it valued the subject property or to conclude that Complainant’s opinion of value was correct.

ORDER

The true market valuation for the subject property as determined by the BOE is AFFIRMED. The assessed value for the subject property for tax years 2015 and 2016 is set at $33,000 residential ($173,700 TMV).

Application for Review

Failure to state specific facts or law upon which the application for review is based will result in summary denial. Section 138.432, RSMo

Disputed Taxes

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 November 8, 2016.

STATE TAX COMMISSION OF MISSOURI

Amy S. Westermann

Senior Hearing Officer

Certificate of Service

I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 8th day of November, 2016, to: Complainants(s) counsel and/or Complainant, the County Assessor and/or Counsel for Respondent and County Collector.

Jacklyn Wood

Legal Coordinator

Posted in 2016 | Comments Off on David A Desantis v. Jake Zimmerman, Assessor St. Louis County

Quick Navigation

Darrell Lewis v. Thomas Ruhl, Assessor Ralls County

Joseph D Hunter v. Jake Zimmerman, Assessor St. Louis County

Joe Moore v. Jake Zimmerman, Assessor St. Louis County

C. Michael Poston v. Tom Copeland, Assessor Franklin County

Michael Bossaller v. Jake Zimmerman, Assessor St. Louis County

Knox County Community Center v. Anita James, Assessor Knox County

Skaggs Community Hospital Association v. Chuck Pennel, Assessor Taney County

Charitable Exemption

Kehr Development v. Jake Zimmerman, Assessor St. Louis County

John Brauch Jr Trustee v. Jake Zimmerman, Assessor St. Louis County

David A Desantis v. Jake Zimmerman, Assessor St. Louis County

Information About

Recent Legal Decisions