DRYER INVESTMENTS, LLC, et al. v Zimmerman, Assessor St. Louis County

December 20th, 2019

STATE TAX COMMISSION OF MISSOURI

DRYER INVESTMENTS, LLC, et al.,             )                                                                                                                                                                                                                                        Complainants,                                   )

)     Appeal Nos. 17-110000, et al.

)

JAKE ZIMMERMAN, RESPONDENT            )

ST. LOUIS COUNTY, MISSOURI                     )

Respondent.                                                      )

 

ORDER AFFIRMING HEARING OFFICER DECISION AND ORDER

UPON APPLICATION FOR REVIEW

 

Dreyer Investments, LLC, et al., (Complainants) filed a consolidated application for review of the hearing officer’s decisions and orders holding Complainants did not present substantial and persuasive evidence establishing discriminatory residential real property tax assessments.[1]  The hearing officer’s decisions and orders are affirmed.[2]

BACKGROUND

            This appeal involves the alleged discriminatory assessment of approximately 7,500 residential properties in St. Louis County.  Complainants claim the St. Louis County Assessor (Respondent) intentionally discriminated by undervaluing residential properties other than Complainants’ properties.  Alternatively, Complainants claim Respondent assessed their properties at a ratio greater than the common assessment level for St. Louis County residential properties.   Following an evidentiary hearing, the hearing officer issued decisions and orders concluding Complainants failed to present substantial and persuasive evidence of discrimination.

Complainants filed a consolidated application for review asserting the hearing officer erroneously: (1) concluded Complainants failed to present substantial and persuasive evidence of discrimination; (2) failed to make findings of fact regarding the median level of residential assessment in St. Louis County in 2017; (3) failed to make findings of fact regarding the fair market value of the subject property in each appeal; (4) failed to compare the median level of assessment with the actual level of assessment of the subject property in each appeal; (5) concluded all of Respondent’s appraised values were equally inaccurate; (6) disregarded substantial and persuasive evidence showing Respondent systematically undervalued residential real property by applying a 5% reduction in sales prices; and (7) disregarded substantial and persuasive evidence Respondent systematically undervalued property by not making sufficient time of sale adjustments to comparable sales and maintaining accurate property data.

Twenty-six Complainants submitted appraisals and obtained a decision and order from the hearing officer granting their overvaluation claims and determining the fair market value of each property.  The remaining Complainants assert the “presumptively correct determination” of the St. Louis County Board of Equalization (BOE) proves fair market value.  Application for Review at 9.  These Complainants submitted BOE files, BOE decisions, property record cards, Respondent’s comparable sales analysis, change of assessment notices, and tax bills.  In over 90% of Complainants’ appeals, the BOE did not adjust Respondent’s valuations.  In the remaining appeals, the BOE reduced Respondent’s valuations.

Complainants and Respondent submitted ratio studies to show the overall assessment level of St. Louis County residential property.  A ratio study analyzes a representative sample of properties to produce statistically valid inferences regarding the level and uniformity of the appraisal and assessment of an entire class of property.  A ratio study enables analysis of the assessment level and uniformity by comparing the taxing authority’s valuations of the representative sample to a market value proxy, usually derived from recent sale prices.[3]

A ratio study compiles this data from each property in the representative sample to calculate various measures of the “central tendency” of the data.  A central tendency identifies the center of distribution within a data set, and is often calculated as an average or median.  These measures quantify the overall assessment level of the representative sample and, by extension, the overall assessment level of a class of property at a given time in a specific jurisdiction.  The overall assessment level is compared to the actual assessment level of a specific property to determine if the taxpayer is subjected to a discriminatory assessment.

Complainants presented a ratio study prepared by Robert Gloudemans, an expert in the field of appraisal, mass appraisal, and assessment ratio studies.  Gloudemans’ ratio study utilized residential property sales data from Respondent to construct a market proxy based on sales of residential properties in St. Louis County from July 2016 through June 2017.  Gloudemans used Respondent’s data to screen out invalid sales, match assessment and sales data, select appropriate sales, conduct a price trend analysis, calculate assessment ratios, and determine assessment levels.  Gloudemans used 12,748 sales of residential property, and testified this was a sufficient number of sales for statistical accuracy.

Gloudemans calculated several measures of central tendency, and testified the median ratio is preferred because it is less influenced by extreme outliers.  Gloudemans concluded the median ratio of Respondent’s appraised value to market value was 0.897, or 89.7%.  By multiplying the statutory residential assessment level of 19% by the median appraisal level of 0.897, Gloudemans estimated the overall assessment level of residential property in St. Louis County for 2017-2018 was 17.043 % of fair market value.

Gloudemans testified about Respondent’s computer assisted mass appraisal system.  Gloudemans testified the system identifies the five most comparable sale properties for each property.  Respondent’s system reduces the sale price of comparable properties by 5%.  Gloudemans testified the 5% reduction in comparable sales prices reduces appraised values by 5%.  After applying the 5% reduction, the system computes a sixth value estimate from the weighted average of the adjusted prices.  The system then computes a seventh estimate based on a regression analysis accounting for the differences between the subject property and comparable sales.  Finally, the system drops the two lowest and two highest estimates, averages the middle three, and computes a final estimate of market value.

Respondent presented testimony from Josh Meyers, an expert in the field of mass appraisal and assessment ratio studies.  Myers testified Respondent’s valuations do not represent fair market value because the mass appraisal system reduces the values of comparable sales by 5% and, per Gloudemans’ testimony, residential properties in St. Louis County are typically valued at 89.7 % of fair market value.  Myers testified this means half of residential properties are valued at less than 89.7% of fair market value and half are valued above that level.  Myers further testified Complainants presented no evidence their properties were valued differently than other St. Louis County residential properties.

Myers prepared a ratio study.   Myers testified the median is the appropriate measure of central tendency.  Myers concluded the median ratio of appraised value to market value for St. Louis County residential properties during the 2017-2018 assessment cycle was 0.90192, or 90.192%, yielding an overall assessment level of 17.136% of fair market value.[4]  Myers testified the International Association of Assessing Officers (IAAO) recommends an appraisal level of 90-110%.  Using the IAAO recommendation, the acceptable assessment range for residential properties would be between 17.1% and 20.9%.  Like Gloudemans, Myers testified Respondent targeted a 95% appraisal level for residential properties by reducing the sale prices of comparable properties by 5%.  Myers testified the 5% reduction of comparable sale prices affects the valuation of all St. Louis County residential properties.

FINDINGS OF FACT

Based on the entire record, the Commission enters the following findings of fact:

  1. The subject properties are residential properties located in St. Louis County, Missouri.
  2. Respondent assessed the subject residential properties at the statutory rate of 19% of Respondent’s estimate of fair market value.
  3. Respondent’s computer assisted mass appraisal system values residential properties by identifying sales of comparable properties and adjusting for property differences with a statistical regression analysis.  The system reduces the sale price of comparable properties by 5%.  The 5% reduction of comparable sale prices reduces the system’s appraised values by 5%, and similarly affects the valuation of all St. Louis County residential properties.  The result of the 5% reduction in the sale price of comparable properties is that Respondent’s target appraisal level for residential properties is 95% of fair market value.
  4. Complainants’ properties were appraised with the same methodology applied to all other St. Louis County residential properties.  The 95% target appraisal level generally applied to St. Louis County residential properties also applied to Complainants’ properties.
  5. Complainants appealed Respondent’s appraisals and assessments to the BOE.   In approximately 7,000 of those appeals, the BOE approved Respondent’s appraised values.  Approximately 4,300 these Complainants waived their BOE hearings.  In approximately 600 appeals, the BOE reduced Respondent’s appraised values.
  6. Complainants appealed the BOE decisions to the State Tax Commission (Commission).
  7. When a property owner appeals Respondent’s valuation, their tax liability is based on the value assigned by the BOE and the applicable tax levy.  If the Commission reduces a property valuation, St. Louis County issues a tax refund based on the corrected value.
  8. Twenty-six Complainants alleged overvaluation, presented appraisals, and obtained a decision and order from the Commission hearing officer establishing the fair market value of their properties. These 26 Complainants assert the hearing officer’s decisions and orders prove the fair market value of their properties for purposes of their discrimination claims.  All other Complainants assert the BOE decisions or Respondent’s valuations reflect fair market value.
  9. Complainants’ properties were appraised with the same methodology applied to all other St. Louis County residential properties.  The 95% target appraisal level generally applied to St. Louis County residential properties also applied to Complainants’ properties.
  10. There is no evidence Respondent intentionally and specifically discriminated against Complainants when appraising or assessing their properties.
  11. Complainants and Respondent presented credible ratio studies prepared by experts in mass appraisal and assessment ratio studies.  These studies showed the median ratio of Respondent’s appraised value to the fair market value, as measured by actual sales, was between 89.7% and 90.192%.  This ratio means Respondent valued half of St. Louis County residential properties at less than approximately 90% of fair market value, while the other half is valued at greater than 90% of fair market value.
  12. The ratio studies showed similar median assessment ratios of 17.043% and 17.136%.  These assessment ratios were calculated by multiplying the 19% statutory assessment rate by the median ratios of appraised value to fair market value calculated in each study.  The approximately 17% median assessment ratio calculated in both studies means half of St. Louis County residential properties were assessed at less than approximately 17% of fair market value, and half were assessed at greater than approximately 17% of fair market value.  The ratio studies show Respondent’s generally applicable appraisal methodology, but do not establish the fair market value of a specific property.
  13. The median assessment level (17.043% – 17.136%) is between 10.31% and 9.81% below the 19% actual assessment level applied to Complainant’s properties.
  14. Because Respondent appraised Complainants’ properties with the same methodology generally applied to St. Louis County residential properties, Complainants’ properties are no different than a random sample of St. Louis County residential properties. Myers’ statistical analysis credibly showed there is a less than a one in a million chance the BOE decisions approving Respondent’s original valuations represented the actual fair market value of each of Complainants’ approximately 7,000 properties.
  15. The actual fair market values of Complainants’ properties are distributed above and below the median appraisal level.

CONCLUSIONS OF LAW

In determining the true value in money, the Commission is not bound by any single formula, rule of method, but is free to consider all pertinent facts and estimates and give them such weight as reasonably they may be deemed entitled to.  St. Louis Cty. v. State Tax Comm’n, 515 S.W.2d 446, 450 (Mo. 1974).  The Commission reviews the hearing officer’s decision and order de novo.  Lebanon Properties I v. North, 66 S.W.3d 765, 770 (Mo. App. 2002).  “The extent of that review extends to credibility as well as questions of fact.”  The Commission reviews the record and makes independent factual findings.  Id.    Determining fair market value is a factual issue.  Parker v. Doe Run Co., 553 S.W.3d 356, 360 (Mo. App. 2018).

  1. Discrimination

Both the United States and Missouri constitutions prohibit discriminatory taxation of similarly situated taxpayers.  Savage v. State Tax Comm’n of Missouri, 722 S.W.2d 72, 78 (Mo. banc 1986).   To prove discrimination, a property owner must first prove the fair market value of the subject property on the valuation date.  Id.  After proving fair market value, the property owner can prove discrimination by showing an “intentional systematic undervaluation . . . of other taxable property in the same class.”  State ex rel. Ashby Rd. Partners, LLC, v. State Tax Comm’n, 297 S.W.3d 80, 85 (Mo. banc 2009) (internal quotation omitted).  In the absence of intentional discrimination, a discrimination claim requires proof that the level of assessment is “so grossly excessive as to be inconsistent with an honest exercise of judgment.”  Savage, 722 S.W.2d at 78.  A “mere overvaluation” does not prove unconstitutional discrimination because “while practical uniformity is the constitutional goal, absolute uniformity is an unattainable ideal.”  Id. at 78-79.

Complainants claim Respondent “intentionally and systematically discriminated by under assessing residential properties other than the subject properties in these appeals.”  Application for Review at 6.  The experts for both parties testified Respondent’s computer assisted mass appraisal system targeted a 95% appraisal level for residential properties by reducing the sale prices of comparable properties by 5%.  Both experts testified the 5% reduction of comparable sale prices equally affected the appraisal of all St. Louis County residential properties.  The evidence establishes Respondent appraised Complainants’ properties according the same methodology applied to all St. Louis County residential property.  There is no persuasive evidence showing Complainants’ properties were uniquely exempted from Respondent’s generally applicable appraisal methodology.  Complainants’ claims of intentional discrimination are denied.

Alternatively, Complainants claim the actual assessment level applied to their properties was grossly excessive relative to the median assessment level of St. Louis county residential properties.  Application for Review, at 6.  In their application for review, Complainants expressly rely “on the presumptively correct determination of fair market value by the [BOE].” Application for Review at 9.  By asserting the BOE decisions represent the fair market value of each of their properties, Complainants effectively concede their properties were actually assessed at the statutory rate of 19% of fair market value.[5]  The hearing officer gave Complainants the benefit of the doubt and, consistent with their theory of the case, determined the subject properties were actually assessed at 19%.  The remaining unresolved issue was whether the 19% assessment level was grossly excessive relative to the approximately 17% median assessment level.  The hearing officer concluded this disparity was not so grossly excessive as to result in a discriminatory assessment.

Complainants assert the hearing officer’s comparison of the 19% assessment level to the 17% median assessment level is foreclosed by Zimmerman v. Mid-Am. Fin. Corp., 481 S.W.3d 564 (Mo. App. 2015).  Zimmerman held the actual assessment level is based on the assessor’s original value, even when that value is adjusted by the BOE.  Zimmerman, 481 S.W.3d at 575.  Zimmerman reasoned the assessor’s original value determined the actual assessment level because the original value was the “basis” of the property owner’s “tax bill” and “tax liability.”  Id. at 574.  Zimmerman therefore tied the actual assessment level to the valuation decision establishing the property owner’s tax liability.  By doing so, Zimmerman is consistent with the principle that an assessment is discriminatory if it causes the property owner “to bear an unfair share of the property tax burden compared to the other properties.”  Crowell v. Cox, 561 S.W.3d 882, 892 (Mo. App. 2018).[6]  Because the purpose of the discrimination remedy is to relieve a property owner of a disproportionate tax burden, it follows that the actual level of assessment is based on the valuation decision establishing the property owner’s actual tax liability.  Thus, when a reviewing body remedies the assessor’s overvaluation by reducing the value to market value, the corrected valuation may cure any alleged discrimination by narrowing the disparity between the actual assessment level and the common assessment level to an acceptable level.  See Ulman v. Evans, 247 S.W.2d 693, 697 (Mo. 1952) (the BOE’s reduction of the assessor’s valuation of the plaintiff’s lot “may have obviated the discrimination of which the plaintiff claims”).

This case is materially distinguishable from Zimmerman and akin to Ulman.  Unlike Zimmerman – where the court assumed the assessor’s original value was basis of the property owner’s tax liability – the record in this case shows Complainants’ actual tax liabilities were based on the market values assigned by the BOE and the Commission.  Thus, the actual assessment level establishing Complainants’ actual tax liabilities was based on the values assigned by the BOE or the Commission, and not, as in Zimmerman, by Respondent’s original value.[7]  Because Complainants’ properties were ultimately assessed and taxed based on fair market value, the actual assessment level was 19%.  The hearing officer correctly concluded, given the record in this case, that the actual assessment level was 19%.

There is no bright-line test to determine when an assessment transitions from an error in judgment to “grossly excessive” and discriminatory.  Zimmerman, 481 S.W.3d at 575.  Savage held a 59% disparity was grossly excessive.  Savage, 722 S.W.2d at 78.  Zimmerman held a 43% disparity was grossly excessive.  Zimmerman, 481 S.W.3d at 576.  Similarly, in Ben Enterprises v. Morton, Appeal No. 89-11166, 1991 WL 130907 at *6-7 (Mo. State Tax Comm’n May 17, 1991), the Commission compiled a list of cases from other jurisdictions holding disparities in excess of 30% were grossly excessive to support the conclusion a 9.6% disparity was not grossly excessive.[8]

While Savage, Zimmerman, and cases from other jurisdictions establish a disparity in excess of 30% is generally grossly excessive, the Commission has repeatedly concluded disparities of less than 15% are not grossly excessive.[9]  The median assessment levels calculated by Gloudemans and Myers (17.043% – 17.136%) are between 10.31% and 9.81% below the 19% actual assessment level applied to Complainants’ properties.   This disparity is considerably less than the 43% disparity in Zimmerman, the 59% disparity in Savage, and is within the range the Commission previously concluded is permissible.  While lesser disparities may be grossly excessive in some circumstances, Complainants provide no persuasive authority or argument showing the less than 11% disparity in this case is grossly excessive.  Complainants’ discrimination claims are denied.

  1. The hearing officer made sufficient factual findings regarding the median assessment level.

 

Complainants assert the hearing officer’s findings of fact are insufficient to permit meaningful judicial review.   This argument fails because judicial review is directed at the Commission’s final decision, not the hearing officer’s decision and order.  Crowell v. Cox, 525 S.W.3d 578, 582 (Mo. App. 2017) (sections 536.100 to 536.140 authorize the circuit court “to examine and correct the agency decision”); Snider v. Casino Aztar/Aztar Missouri Gaming Corp., 156 S.W.3d 341, 346 (Mo. banc 2005) (appellate courts review the Commission’s decision).[10]  Because the judicial review is directed at the Commission’s decision, Complainants’ assertion the hearing officer’s findings are insufficient for judicial review misses the mark.

Even though judicial review is directed at the Commission’s decision, section 138.431.5 provides the parties “shall be duly notified of a hearing officer’s decision and order, together with findings of fact and conclusions of law.”  The hearing officer’s decision and orders satisfy this requirement.   Generally, findings of fact must:

constitute a factual resolution of the matters in contest before the commission; must advise the parties and the circuit court of the factual basis upon which the commission reached its conclusion and order; must provide a basis for the circuit court to perform its limited function in reviewing administrative agency decisions; must show how the controlling issues have been decided.

 

St. Louis Cty., 515 S.W.2d at 448.  A detailed summary of the evidence is not required.  Iron Cty. v. State Tax Comm’n, 480 S.W.2d 65, 69 (Mo. 1972).

Complainants assert the hearing officer failed to make sufficient factual findings regarding the median level of residential assessment in St. Louis County in 2017. The hearing officer detailed the data and methodology in the ratio studies and found the median assessment levels of 17.043% and 17.136% calculated in the studies were so similar it was immaterial which level was utilized.  These findings are sufficient to show the factual basis for the decision and “how the controlling issues have been decided.”  St. Louis Cty., 515 S.W.2d at 448.

  1. The hearing officer made sufficient findings regarding fair market value.

Complainants assert the hearing officer failed to make sufficient findings regarding the fair market value of the subject property in each appeal.  By arguing the BOE decisions reflect fair market value, Complainants effectively concede their properties were valued at fair market value and actually assessed at 19%.  Consistent with Complainants’ argument, the hearing officer gave Complainants the benefit of the doubt and determined the subject properties were actually assessed at 19%.  The only unresolved issue then was whether the 19% assessment level is grossly excessive relative to the median assessment level, leaving no need for the hearing officer to separately list the alleged market value of thousands of separate properties.

  1. The hearing officer made sufficient findings comparing the median and actual assessment levels.

 

Complainants assert the hearing officer failed to compare the median level of assessment with the actual level of assessment of the subject property in each appeal.   The hearing officer found the median assessment level was over 17% based on the “similar” assessment levels (17.043% and 17.136%) calculated in the ratio studies.  Decision and Order, at 20.  The hearing officer then proceeded to do exactly what Complainants assert she failed to do: she compared the 17% median assessment level to the actual 19% assessment level applied to the subject properties and concluded the disparity was not so grossly excessive as to be discriminatory.  These findings, adopted herein by the Commission, are sufficient to show the factual basis for the decision and “how the controlling issues have been decided.”  St. Louis Cty., 515 S.W.2d at 448.

  1. The hearing officer did not hold Respondent’s appraised values were equally inaccurate

 

Complainants assert the hearing officer rejected their discrimination claim based on an “erroneous blanket conclusion” there was no discrimination because all of Respondent’s valuations were “equally inaccurate.”  Application for Review, at 11.  The hearing officer did not conclude there was no discrimination because all of Respondent’s valuations were equally inaccurate.  The hearing officer correctly concluded there was no discrimination because Complainants failed to present substantial and persuasive evidence showing the actual assessment level was grossly excessive compared to the median assessment level for St. Louis County residential properties.

  1. The hearing officer did not disregard substantial and persuasive evidence of discrimination.

 

Complainants assert the hearing officer disregarded evidence showing Respondent systematically undervalued residential real property by applying a 5% reduction in sales prices.  The hearing officer found Respondent’s computer assisted mass appraisal system applied a 5% reduction to comparable sales.  The hearing officer also found this 5% reduction applied equally to Respondent’s valuation of all St. Louis County residential properties, including Complainants’ properties.  Complainants’ disagreement with the hearing officer’s factual findings do not render those findings erroneous.

  1. The hearing officer did not disregard substantial and persuasive evidence regarding time of sale adjustments and property data.

 

Finally, Complainants assert the hearing officer disregarded evidence showing Respondent failed to make sufficient time of sale adjustments to comparable sales or maintain accurate property data.   The hearing officer was the trier of fact and was free to believe or disbelieve Complainants’ evidence on this issue.  The Commission’s independent review of the record shows no persuasive basis for the Commission to conclude otherwise.

 

CONCLUSION

            Complainants did not produce evidence of intentional discrimination.  Complainants did not present substantial and persuasive evidence showing the actual assessment level of the subject properties was grossly excessive relative to the median assessment level of St. Louis County residential property.  Complainants’ discrimination claims are denied.

ORDER

            The Commission affirms the hearing officer’s decisions and orders denying Complainants’ claims of discriminatory property tax assessments.

The parties may seek judicial review as provided in section 138.432 and sections 536.100 to 536.140.   If judicial review is sought, any protested taxes presently in escrow pursuant to this appeal shall he held pending a final judicial decision, unless disbursed pursuant to section 138.031.8.

If judicial review is not timely sought, this decision and order is deemed final, and the Collector of St. Louis County, and the collectors of all affected political subdivisions, shall disburse all protested taxes presently in escrow in a manner consistent with this decision and order.

SO ORDERED December 4, 2019.

STATE TAX COMMISSION OF MISSOURI

[1] The Commission has authority, “under such rules as may be prescribed by law, to hear appeals from local boards in individual cases and, upon such appeal, to correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious.”  Mo. Const. art. X, § 14.  Section 138.430.1 authorizes the Commission to hear appeals concerning assessment, valuation, the method or formula used in determining valuation, or assignment of a discriminatory assessment.  Section 138.432 authorizes the Commission to “affirm, modify, reverse, or set aside the decision and order of the hearing officer[.]”  All statutory citations are to RSMo 2000, as amended.

[2] The hearing officer’s decisions and orders are incorporated into the Commission’s decision and order.

[3] For example, if Respondent values a property at $100,000, but fair market value is $110,000, Respondent’s valuation is 0.91, or 91% (100,000 ÷ 110,000) of fair market value.  In this hypothetical, the assessment level is calculated by multiplying the 19% statutory assessment rate by the 0.91 valuation ratio (0.19 x 0.91), resulting in an assessment level of 0.173 or 17.3% of fair market value.

 

[4]  Like Gloudemans, Myers calculated the overall assessment level by multiplying the median ratio of appraised value to market value (0.90192) by the statutory assessment level (0.19) to calculate the overall assessment level of 0.17136, or 17.136%.

[5] Section 137.115.5(1)(a) provides residential real property shall be assessed at 19% of its true value.

[6] See also Allegheny Pittsburgh Coal Co. v. Cnty. Comm’n of Webster Cnty., W. Va., 488 U.S. 336, 346 (1989) (“the fairness of one’s allocable share of the total property tax burden can only be meaningfully evaluated by comparison with the share of others similarly situated relative to their property holdings”) (emphasis added)).  A taxpayer’s “allocable share” of the property tax burden is calculated by multiplying the assessed value by the local tax levy.  A discrimination claim is based on assessed value, not a comparison of the tax levies imposed by different local taxing authorities.

[7] Section 138.060.2 confirms this conclusion.  In pertinent part, section 138.060.2 provides: “The county clerk shall keep an accurate record of the proceedings and orders of the board, and the assessor shall correct all erroneous assessments, and the clerk shall adjust the tax book according to the orders of such board and the orders of the state tax commission….”  (Emphasis added).  Because “the assessor shall correct all erroneous assessments . . . according to the orders of” the BOE and the Commission, and the clerk must “adjust the tax book” accordingly, the plain language of section 138.060.2 demonstrates the assessor’s erroneous assessments are not the actual assessment level establishing the property owner’s actual tax liability.  To the contrary, when, as in this case, the record demonstrates the statutory mandate was followed, the assessor’s corrected, erroneous assessment is discarded for tax purposes, and does not represent the actual assessment level for that property.

[8] See Piscataway Ass’n Inc., v. Twp. of Piscataway, 376 A.2d 527 (N.J. Super 1977) (30.8% disparity); Cty. of Ada, v. Red Steer Drive-Ins of Nevada, Inc., 609 P.2d 161 (Idaho 1980) (37% disparity); Chastain’s Inc., v. State Tax Comm’n, 241 P.2d 167 (Idaho 1952) (30.4% disparity); Kavet v. Bd. of Assessors, 379 N.E.2d 587 (Mass 1978) (44.6% disparity); Washington Cty. Bd. of Supervisors v. Greenville Mill, 437 So.2d 401 (Miss. 1983) (150% disparity); Louisville & Nashville Ry. Co. v. Pub. Serv. Comm’n, 631 F.2d 426 (6th Cir. 1980) (58.7% disparity); People ex rel. McDounough v. Grand Trunk Western Ry. Co., 192 N.E. 645 (Ill. 1934) (34.3% disparity); City of Dallas v. Union Tower Corp., 703 S.W.2d 275 (Tx. App. 1985) (40.6% disparity); see also In re Quality Beverage Co., Inc., 170 B.R. 310, 313 (S.D. Tex. Bankr. 1994) (disparities between 33% and 75% are grossly excessive).

[9] See Foci Enterprise, LLC v. Zimmerman, Appeal No. 15-10103 (Mo. St. Tax Comm’n April 3, 2018) (3% disparity not grossly excessive); Arsenal Street, LLC v. Bushmeyer, 2009 WL 1266292, *7 (Mo. St. Tax Comm’n April 29, 2009) (9.8% disparity not grossly excessive); West County BMW v. Muehlheausler, 2009 WL 752505 *8 (Mo. St. Tax Comm’n Mar. 17, 2009) (14% disparity not grossly excessive); Ben Enterprises, 1991 WL 130907 (9.6% disparity not grossly excessive);Town & Country Racquet Club v. Morton, 1989 WL 41005 *13 (Mo. St. Tax Comm’n Mar. 3, 1989) (5% disparity not grossly excessive).

[10] The statutory basis for this conclusion is as follows.  Section 138.432 authorizes the Commission to resolve appeals from the hearing officer’s decision by entering its own decision and order with findings of fact and conclusions of law.  Section 138.432 further provides “[t]he decision of the commission shall be subject to judicial review in the manner provided by subsection 4 of section 138.470.”  Section 138.470.4 provides for judicial review pursuant to “sections 536.100 to 536.140.”  Section 536.100.1 authorizes judicial review only if the person aggrieved by the agency’s “final decision” has “exhausted all administrative remedies[.]”  Thus, the “final decision” subject to judicial review following the exhaustion of “all administrative remedies” is the Commission’s decision, not the hearing officer’s decision and order.