A.G. EDWARDS & SONS, INC. )
v. ) Appeal Number 00-20044
SAMUEL J. SIMON, ASSESSOR, )
ST. LOUIS CITY, MISSOURI, )
DECISION AND ORDER
Parties have stipulated to the fair market value of the subject property. Stipulation approved. True value in money for subject property set at $11,230,987, assessed value as personal property of $3,743,632 Assessor’s imposition of a late filing penalty is set aside.
Complainant represented by Thomas L. Caradonna, St. Louis, Missouri.
Respondent represented by Susan Phelps, Assistant City Counselor, St. Louis, Missouri.
Case decided by Chief Hearing Officer, W. B. Tichenor.
The Commission takes this appeal to determine whether the imposition of a late filing penalty by the Assessor, in this appeal, is authorized by law.
The parties filed their Stipulation as to value on September 21, 2001. The Stipulated fair market value of the property under appeal was $11,230,987, assessed value as personal property of $3,743,632. The Assessor had imposed a 25% of fair market value for late filing of Complainant’s personal property tax return. The parties briefed the issue of the 25% late filing penalty. Respondent’s Reply Brief was received by the Commission on November 26, 2001, and was the last filing in this appeal on the pending issue.
The Hearing Officer, having considered the arguments put forth by each party in their respective briefs, enters the following Decision and Order.
Counsel for Complainant argues that since April 1, 2000, fell on a Saturday, that Complainant’s personal property return was timely filed with the Assessor on the next business day, April 3, 2000. Complainant’s argument rests upon Supreme Court Rule 44.01 in the computation of time. Counsel for Complainant also asserts that the Missouri Supreme Court decision in Evergreen Lawn Service, Inc. v. Director of Revenue, 685 S.W.2d 829 (Mo. banc 1985) provides a sound, equitable and just rational that should be applied in the present case to set aside the late filing penalty.
Counsel also advances a constitutional argument. The constitutional argument rests upon a violation of Article X, Section 3 of the Missouri Constitution and the Fourteenth Amendment to the U. S. Constitution. The claim is that taxpayers in the City of St. Louis are subject to the imposition of a late filing penalty of 25% of the fair market value of the property being valued, while taxpayers in all other parts of Missouri are only subject to a maximum penalty of $100 for a late filing of the personal property return. Complainant’s Brief & Complainant’s Reply Brief.
Respondent argues that the tax return had to be filed between January 1 and April 1, 2000, and that a filing of April 3, 2000, even though April 1, 2000, was a Saturday, was a late filing which mandates the imposition of the 25% late filing penalty. Respondent’s Brief and Complainant’s Reply Brief.
FINDINGS OF FACT
1. Jurisdiction over this appeal is proper. Complainant timely appealed to the State Tax Commission from the decision of the St. Louis City Board of Equalization.
2. The Stipulation to value of $11,230,897 (assessed value of $3,743,632) is approved.
3. April 1, 2000, was on a Saturday. The next business day when the Assessor’s Office was open was Monday, April 3, 2000.
4. Complainant, through an employee, hand delivered its 2000 personal property tax return to the St. Louis City Assessor’s Office, Personal Property Section, Room 117, on Monday, April 3, 2000. CP’s Exhibit B, p. 7, Lines 4-10 & Respondent’s Brief, p. 1, Fact 3.
5. Complainant’s filing of the 2000 personal property tax return with the Assessor on Monday, April 3, 2000, complied with Section 137.505, RSMo and Supreme Court Rule 44.01.
6. The imposition of the late filing fee by the Assessor was improper and not authorized by law.
CONCLUSIONS OF LAW
The Commission has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious. Article X, section 14, Mo. Const. of 1945; Sections 138.430, 138.431, RSMo. 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. Section 138.431.4, RSMo.
Filing Date for Personal Property Returns in St. Louis City
Every person, corporation, partnership or association, subject to taxation under the laws of this state and owning or controlling tangible personal property taxable by the cities (City of St. Louis) shall file with the assessor of the cities a return listing all such tangible personal property owned or controlled on January first of each year and estimating the true value thereof in money. The return shall be filed between the first day of January and the First day of April of each year, shall be signed by the taxpayer, and shall be certified by the taxpayer as being a true and complete list and statement of the tangible personal property and the estimated value thereof. Section 137.495, RSMo.
Late Filing Penalty in St. Louis City
If any person, corporation, partnership or association shall fail to file a return as required by Sections 137.485 to 137.550, the assessor shall ascertain the true amount and value of the taxable tangible personal property of such person, corporation, partnership or association on the best information available to him and shall assess said property at twenty-five percent above its value. Section 137.505, RSMo.
Late Filing Penalty in All Other Counties
The penalty for not filing of a tangible personal property return in all counties is a maximum of $100 and it is set aside if the party does file a return before May 1. Sections 137.280 & 137.345, RSMo.
Computation of Time
The last day of a period to be computed is to be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs to the end of the next day which is neither a Saturday, Sunday nor a legal holiday. Supreme Court Rule 44.01(a).
Due to the fact that April 1, 2000, the last day on which personal property returns were to be filed with the assessor, fell on a Saturday, that day and the day following (Sunday, April 2nd) were excluded as days ending the period proscribed by Section 137.495. Monday, April 3, 2000, became the last day for filing of the 2000 personal property return. Supreme Court Rule 44.01(a).
The holding of the Missouri Supreme Court in Evergreen Lawn Service, supra, provides the sound, equitable and just rationale that must be applied in the present appeal. In the pending case, as in Evergreen, the date for filing fell on a Saturday. Personal deliver and actual filing, here, as in Evergreen, was thwarted on Saturday. The filing on the next available business day of April 3rd was timely and proper. Evergreen, at 830-831.
Respondent’s argument relative to notification that the return must be filed on, by or before April 1, 2000, is of no avail. April 1st was a Saturday, Supreme Court Rule 44.01 is applicable. April 1st became April 3rd for purposes of complying with Section 137.495.
Respondent’s argument that Complainant could have mailed the return so that it was postmarked on or by April 1, 2000, is likewise of no merit. The practical effect of taking that course of action would have been that it would have reached the Assessor’s office no sooner than it did by the Complainant timely complying with Section 137.495 as properly applied under Rule 44.01.
Respondent’s argument that Complainant’s official signed the return on April 3, 2000, instead of April 1, 2000, is not controlling. Since April 3rd was the proper last day for filing the return, April 3rd was also the proper last day for signing the return.
Respondent’s argument relying upon Black’s Law Dictionary and the definition of between is not applicable in this case. There is no need to seek a meaning for the word between, when Rule 44.01 establishes that Saturday, April 1st was not the last day of the applicable period.
The Complainant timely filed its 2000 personal property tax return. The imposition of a late filing penalty under 137.505 was not authorized in this instance when April 1, 2000, fell on a Saturday. Accordingly, the 25% penalty must be and is set aside.
Missouri Statutes provide for a different penalty for late filing of a personal property tax return in St. Louis City and in all other counties in the state. In all counties in the state, except the City of St. Louis, there is a statutory notification and grace period for filing before the penalty can be imposed. Complainant has timely raised this constitutional claim before the Commission. However, the Commission is without authority to rule on the constitutionality of Section 137.505. Complainant’s constitutional claim is preserved for further review before the courts of this state.
The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization for St. Louis City for the subject tax day is SET ASIDE.
Stipulation of parties is approved.
The assessed value for the subject property for tax year 2000 is set at $3,743,632.
The late filing penalty is SET ASIDE.
A party may file with the Commission an application for review of this decision within thirty (30) days of the mailing of such decision. The application shall contain specific grounds upon which it is claimed the decision is erroneous. Failure to state specific facts or law upon which the appeal is based will result in summary denial. Section 138.432, RSMo 1994.
If an application for review of this decision is made to the Commission, any protested taxes presently in an escrow account in accordance with this appeal shall be held pending the final decision of the Commission. If no application for review is received by the Commission within thirty (30) days, this decision and order is deemed final and the Collector of St. Louis City, 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. If any or all protested taxes have been disbursed pursuant to Section 139.031(8), RSMo, either party may apply to the circuit court having jurisdiction of the cause for disposition of the protested taxes held by the taxing authority.
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 14, 2001.
STATE TAX COMMISSION OF MISSOURI
W. B. Tichenor, Chief Hearing Officer