STATE TAX COMMISSION OF MISSOURI
| ANDREW G. SMITH, | ) | |
| ) | ||
| Complainant, | ) | |
| ) | ||
| v. | ) | Appeal Nos. 16-10019 |
| ) | 16-10044 | |
| JAKE ZIMMERMAN, ASSESSOR | ) | |
| ST. LOUIS COUNTY, MISSOURI, | ) | |
| ) | ||
| Respondent. | ) |
DECISION AND ORDER
HOLDING
The decision of the Board of Equalization of St. Louis County (BOE) sustaining the assessment made by Respondent Jake Zimmerman, Assessor, St. Louis County, (Respondent) is SET ASIDE. Complainant Andrew G. Smith (Complainant) presented substantial and persuasive evidence to rebut the presumption of correct assessment by the BOE and establishing that the tax situs of his personal property and business personal property on January 1, 2016, was Warren County, not St. Louis County.
Complainant, an attorney, appeared pro se.
Respondent appeared by counsel Edward Corrigan and counsel Steven Robson.
Case heard and decided by Senior Hearing Officer Amy S. Westermann (Hearing Officer).
ISSUE
The issue in this case is whether St. Louis County was the proper tax situs, more specifically, whether St. Louis County was the county in which Complainant resided for purposes of ad valorem taxation of Complainant’s personal property and business personal property on January 1, 2016.
Respondent had valued Complainant’s personal property at $1,330 and Complainant’s business personal property at $500, as of January 1, 2016. Complainant appealed to the BOE. Complainant did not challenge Respondent’s valuation of the personal property and the business personal property; rather, Complainant alleged that St. Louis County was not the proper tax situs as he was not a resident of St. Louis County on January 1, 2016. Complainant alleged that he was a resident of Warren County. The BOE did not provide a substantive decision on Complainant’s appeal, which had the effect of sustaining Respondent. Complainant appealed to the State Tax Commission (STC).
The STC takes this appeal to determine whether St. Louis County is the proper jurisdiction for ad valorem taxation of Complainant’s personal property and business personal property.
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 STC.
- Evidentiary Hearing. The issue of tax situs (residence) was presented at an evidentiary hearing on February 1, 2017, in Division 8 of the 21st Judicial Circuit at the St. Louis County Courthouse in Clayton, Missouri. At the evidentiary hearing, along with their pre-filed exhibits and evidence, both Complainant and Respondent presented the testimony of several witnesses.
- Identification of Subject Property. Complainant’s personal property is identified by account number I00596180. Complainant’s business personal property is identified by account number B0065555A. (Exhibit H; Exhibit I)
- Description of Subject Property. The personal property consists of one 2006 Subaru Forester Wagon. (Exhibit G; St. Louis County Assessor Property Database) The business personal property consists of miscellaneous office furniture and computer hardware. (St. Louis County Assessor Personal Property Record Card; St. Louis County Assessor Property Database)
- Assessment. Respondent valued Complainant’s personal property at $1,330 and valued Complainant’s business personal property at $500 as of January 1, 2016.
- Board of Equalization. The BOE did not provide a substantive decision on Complainant’s appeal, which had the effect of sustaining Respondent.
- Complainant’s Evidence. To support Complainant’s claim that St. Louis County was not the proper tax situs for his personal property and business personal property on the ground that Complainant was not a resident of St. Louis County on January 1, 2016, Complainant offered the following as evidence:
| Exhibit A | Missouri Certificate of Title issued to Complainant on August 31, 2006, for a 2006 Subaru Forester, showing Complainant’s address as 671 Innsbrook Est., Innsbrook, MO 63390-5334 |
| Exhibit B | Missouri Driver License issued to Complainant on October 15, 2014, showing Complainant’s address as 671 Whitetail Creek Dr., Innsbrook, MO 63390 |
| Exhibit C | Warren County, Missouri, Voter Identification Card registered to Complainant on January 29, 1996; showing Complainant’s address as 671 Whitetail Creek Dr., Innsbrook, MO 63390; and showing a voting location of The Village Hall, 1835 Hwy F, Innsbrook, MO 63390 |
| Exhibit D | Missouri Voter Registration Application signed by Complainant, dated January 26, 1996, showing the address where Complainant “live[s]” as 671 Innsbrook Estates, Wright City, Warren County, MO 63390; showing the address where Complainant “get[s]” mail “if different from” the previous address as 14 S. Central #204, Clayton, MO 63105; and showing that Complainant registered as a rural voter living five miles south of Wright City and who neighbors are Innsbrook Estates |
| Exhibit E | 2016 Warren County Tax Statement for Complainant’s real property with an address of 671 Whitetail Creek Dr., Innsbrook Estates; and showing a mailing address of 221 Pebble Acres Dr., St. Louis, MO 63141-0000 |
| Exhibit F | Copy of recorded General Warranty Deed dated December 15, 1995, conveying title of Lot 671 of Plat 30 of Innsbrook Estates, Warren County, Missouri, from Gerald Galluppi and Kelly A. Galluppi to Complainant |
| Exhibit G | 2016 Warren County Assessment List signed by Complainant; dated February 20, 2016; showing Complainant’s address as 671 Whitetail Creek Dr., Innsbrook, MO 63390; and declaring Complainant’s personal property consisting of one 2006 Subaru Forester |
| Exhibit H | 2016 St. Louis County Personal Property Declaration Form signed by Complainant; dated February 4, 2016; showing Complainant’s pre-printed mailing address as 221 Pebble Acres Dr., St. Louis, MO 63141-8033; showing a line marked through the pre-printed information identifying Complainant’s personal property and the handwritten notation “N/A”; and showing Complainant’s written-in “changed” address as 671 Whitetail Creek Dr., Innsbrook, MO 63390 and “date moved” as December 1995 |
| Exhibit I | 2016 St. Louis County Business Personal Property Declaration Form signed by Complainant; dated April 2, 2016; showing Complainant’s pre-printed mailing address as 10408 Manchester Rd., Suite 209, St. Louis, MO 63122-1556; showing handwritten notations of “N/A” in the fields for reporting business personal property; and showing Complainant’s written-in “home address” as 671 Whitetail Creek Dr., Innsbrook, MO 63390 and describing “activities of business” as law office |
| Exhibit J | Letter from Charlie Boyce, Trustee, Innsbrook Owners’ Association, dated April 3, 2015, regarding residential usage of Complainant’s Warren County residence; and map of Innsbrook Estates Plat Thirty, which includes Complainant’s lot, Lot 671, recorded in the Warren County Records on May 20, 1993 |
Complainant also offered as evidence his own testimony; the testimony of Charlie Boyce (Boyce), President/CEO of Innsbrook Corporation and a Trustee of the Innsbrook Homeowners’ Association; and the testimony of Steve Waters (Waters), Salesperson for Innsbrook.
Complainant’s Testimony
Complainant testified that he was divorced and living in an apartment in St. Louis County during 1995. Complainant testified that, in December 1995, he bought a home in Warren County, 671 Whitetail Creek Drive, Innsbrook, Missouri, (the Warren County home) “with the full intent to establish [his] domicile in Warren County.” (Tr. 9-10) Complainant testified that, in January 1996, he filed a declaration of personal property with the Warren County Assessor’s Office. Complainant testified that he reported to St. Louis County on its declaration form that he had moved out of St. Louis County as of December 1995. (Tr. 10) Complainant testified that, also in January 1996, he established his voting residence in Warren County and removed himself from the voting rolls of St. Louis County and that his voting residence “continues in Warren County to this day.” (Id.) Complainant testified that he is a sole proprietor (tax lawyer), not a corporation or other legal entity, and that his private practice has been located in St. Louis County since prior to 1995. (Id.) Complainant testified that he changed his “domicile” from St. Louis County to Warren County in 1995 and that for 18 years the assessors of both Warren County and St. Louis County recognized Complainant’s “domicile” as Warren County for purposes of ad valorem taxation of his personal property and business personal property. (Id.)
Complainant testified that, in 2014, Wendy Nordwald (Nordwald), the current assessor for Warren County, informed Respondent that Complainant had changed his “domicile” to St. Louis County, which Respondent accepted. (Id.) Complainant testified that this change was in error and that he made phone calls and wrote letters to both Nordwald and Respondent and presented evidence of his residence in Warren County to no avail. (Id.) Complainant testified that he purchased his vehicle in 2006 and that it is registered in Warren County. Complainant further testified that his driver’s license is addressed in Warren County; that he attends movies, fireworks displays, plays, and concerts in Warren County; that he worships at either Holy Rosary or Harmony Church in Warren County; that his bank has branches in Warren County; that he plays golf, swims, walks, watches birds, fishes, watches television, socializes, reads, explores, and plays games in Warren County; and that he always returns to his home in Warren County. (Tr. 12)
Complainant testified that he purchased a home in St. Louis County (the St. Louis County home) in 2001 “for investment,” which he stays in when working in St. Louis County. (Id.) Complainant acknowledged that the deed of trust for the St. Louis County home states that the house would be Complainant’s principal residence for a period of one year, but Complainant testified that the term “principal residence” was not defined by the deed of trust. (Tr. 12-13) Complainant further testified that he changed his mailing address on the 2014 Warren County Personal Property Tax Declaration from the address of the Warren County home to the address of the St. Louis County home because he was having trouble with the Warrenton post office in
Warren County returning some of his mail. (Tr. 13)
On cross-examination, Complainant testified that he sleeps at the St. Louis County home when he is working in St. Louis County. (Tr. 19) Complainant testified that he spends almost all of his time in St. Louis County during tax season, which “runs from the middle of January till April 15th.” (Id.) Complainant testified that he does not live an average of four days a week in his Warren County home. (Tr. 22) Complainant testified that he had been married to his wife, Mrs. Smith, for three years at the time of the Evidentiary Hearing and acknowledged that Mrs. Smith had signed personal property declarations for the years 2014, 2015, and 2016 declaring her address to be in St. Louis County. (Tr. 23) Complainant testified that Mrs. Smith had resided in St. Louis County prior to their marriage and that he hopes she will move to Warren County with Complainant when he retires. (Tr. 24) Complainant testified that he would not sell the St. Louis County home immediately upon retiring because he owns rental property in St. Louis County that needs work and because Mrs. Smith has relatives in St. Louis County. Complainant also testified that must retain for a period of 10 years the “45 years” of clients’ records located in the basement of the St. Louis County home and that he did not wish to “put those in storage.” (Tr. 28) Complainant testified that eventually he would sell the St. Louis County home but that he and Mrs. Smith might maintain an apartment in St. Louis County. (Tr. 29) Complainant further testified that he is not required to maintain a secondary home as a condition for having his Warren County home in Innsbrook. (Tr. 29)
Boyce’s Testimony
Boyce testified that he is President and CEO of the Innsbrook Corporation and a Trustee of the Innsbrook Homeowners’ Association. (Tr. 30) Boyce testified that, in the fall of 2015, Complainant provided Boyce with a letter (Complainant’s Exhibit J) stating that Complainant was eligible to be a permanent resident of Innsbrook and asked Boyce to sign it, which he did. (Tr. 32-33) Boyce testified that Nordwald subsequently called Boyce about the letter while he was traveling, and Boyce did not think that he and Nordwald had discussed the substance of the letter at that time. Boyce testified that “there may have been another quick phone conversation at some time after that.” (Tr. 35-36)
At the outset of cross-examination, counsel for Respondent objected to the direct testimony of Boyce on the ground that the testimony constituted “a legal conclusion of a lay witness” related to a set of indentures for Innsbrook Estates that previously had been ruled irrelevant. [1] (Tr. 37) Counsel for Respondent also objected to the letter Boyce had described, labeled as Complainant’s Exhibit J. (Tr. 38) The Hearing Officer noted the objection, reserved ruling, and allowed questioning to continue with regard to Boyce’s personal knowledge of the letter and the excluded indentures. (Tr. 38, 44) Boyce testified that the content of the letter “came from our legal counsel.” (Tr. 40) Boyce testified that a use restriction in the indentures, Section 4.01, stated that a “chalet shall not be used directly or indirectly for any purpose other than a recreational residence.” (Tr. 44-45) Boyce testified that a chalet was a style of construction of “cottage type . . . cabins . . . kind of a rustic type of construction.” (Tr. 45) Boyce testified that Complainant’s Warren County home was a chalet. (Id.) Boyce testified that owners of chalets are “[t]ypically not” permitted to reside in their chalets permanently or on a year-round basis but that “one or two plats . . . when they were initially marketed . . . there were some that were allowed” for permanent residence. (Tr. 46) Boyce testified that the plat on which the Warren County home was located “does not expressly permit a primary residence.” (Tr. 48)
Water’s Testimony
Waters testified that he is a real estate salesperson for Innsbrook Properties. (Tr. 49) Waters testified that, when Complainant purchased the Warren County home, he and Complainant had discussed Complainant’s intent to move to Warren County, but Waters testified that “it was also understood that Complainant would maintain a residence somewhere outside Innsbrook.” (Tr. 50) Respondent waived cross-examination of Waters. (Tr. 53)
Exhibits
Respondent objected to Complainant’s exhibits A, B, C, D, E, F, G, H, and I on “[r]elevance grounds” without specifying how or why the exhibits were not relevant. (Tr. 55) Respondent subsequently withdrew his objection to Exhibit F, and the exhibit was received into the record. (Tr. 58) Following argument from the parties on the remainder of the exhibits, the Hearing Officer overruled Respondent’s objections to Exhibits A, B, C, D, E, G, H, and I, which were received into the record. (Tr. 55; 60) Respondent also objected to Exhibit J, the letter signed by Boyce, on the ground that it was irrelevant in that it related to the use restrictions, which had already been excluded as irrelevant. The Hearing Officer sustained Respondent’s objection to Exhibit J, which was excluded from the record.
- Respondent’s Evidence. To support Respondent’s argument that Complainant was a resident of St. Louis County on January 1, 2016, and, thus, St. Louis County was the proper jurisdiction in which to tax Complainant’s personal property and business personal property for tax year 2016, Respondent offered the following as evidence:
| Written Direct Testimony | Suzanne Strain (Strain), Manager, Personal Property Appraisal for St. Louis County |
| Written Direct Testimony | Nordwald, Assessor of Warren County, Missouri |
| Exhibit 1 | 2016 St. Louis County Personal Property Declaration Form signed by Complainant; dated February 4, 2016; and showing Complainant’s pre-printed mailing address as 221 Pebble Acres Dr., St. Louis, MO 63141-8033; showing a line marked through the pre-printed information identifying Complainant’s personal property and the handwritten notation “N/A”; and showing Complainant’s written-in “changed” address as 671 Whitetail Creek Dr., Innsbrook, MO 63390 and “date moved” as December 1995 |
| Exhibit 2 | Letter from Respondent to Complainant signed by Strain and dated February 5, 2016, rejecting the Business Personal Property Declaration form filed by Complainant because the form “did not provide any information on the tangible personal property owned or controlled by the business on January 1.” |
| Exhibit 3 | 2014 Warren County Assessment List signed by Complainant; dated January 2, 2014; showing Complainant’s pre-printed mailing address as 10408 Manchester Rd., Suite 209, St. Louis, MO 63122-1559; showing a written-in mailing address of 221 Pebble Acres Dr., St. Louis, MO 63141; showing a checkmark in the “YES” box indicating a change of address to 221 Pebble Acres Dr., St. Louis, MO 63141; showing a written-in address different from mailing address of 671 Whitetail Creek Dr., Innsbrook, MO 63390; and showing a hand-written notation by the Warren County Assessor stating: “[Complainant], Please notify St. Louis Co. Assessor’s Office you reside in their (sic) County.” |
| Exhibit 4 | Section 137.090 of the Revised Statutes of Missouri |
| Exhibit 5 | State Tax Commission of Missouri Assessor Manual, Chapter 2, pp. 7-12 |
| Exhibit 6 | Letter from Complainant to Strain dated December 3, 2015, stating Complainant’s opposition to taxation by St. Louis County and including Complainant’s reasons and documentation supporting his position |
| Exhibit 7 | Certified copy of Recorded Deed of Trust dated January 16, 2001, for Complainant’s residence at 221 Pebble Acres Dr., Town and Country, MO 63141 |
| Exhibit 8 | 2015 St. Louis County Personal Property Declaration form signed by Complainant’s wife, Jane H. Smith (Mrs. Smith); dated February 6, 2015; and showing Mrs. Smith’s pre-printed mailing address as 221 Pebble Acres Dr., St. Louis, MO 63141-8033; and showing one 2011 Subaru Forester as Mrs. Smith’s personal property subject to taxation in St. Louis County
2014 St. Louis County Personal Property Declaration form signed by Mrs. Smith under her previous name Jane T. Hall; dated February 27, 2014; showing Mrs. Smith’s written-in “changed” mailing address as 221 Pebble Acres Dr., St. Louis, MO 63141; and showing “date moved” as November 30, 2013 |
| Exhibit 9 | Duplicate of Exhibit 3 |
| Exhibit 10 | Certified copy of recorded General Warranty Deed dated December 15, 1995, conveying title of Lot 671 of Plat 30 of Innsbrook Estates, Warren County, Missouri, from Gerald Galluppi and Kelly A. Galluppi to Complainant |
| Exhibit 13[2] | Complainant’s 2015 Warren County Assessment List signed by Complainant and dated February 19, 2015; showing handwritten notations from an employee of the Warrant County Assessor’s Office stating “W—Innsbrook A-Frame – see notes K—“ and stating “3/5/2015—emailed 2014 & 2015 to St. Louis Co.” |
| Exhibit 14 | Complainant’s 2016 Warren County Assessment List written on a 2014 form received by the Warren County Assessor’s Office on February 26, 2016, showing Complainant’s address as 671 Whitetail Creek Drive, Innsbrook, MO 63392; indicating that Complainant’s address had not changed |
| Exhibit 15 | Complainant’s 2016 Warren County Assessment List received by the Warren County Assessor’s Office on February 26, 2016, showing handwritten notations from an employee of the Warren County Assessor’s Office stating, “has A Frame at Innsbrook,” “can’t claim @ Innsbrook,” and “current address @ 221 Pebble Acres Dr. St. Louis 63141.” |
| Exhibit 16 | Letter from Nordwald to Complainant dated March 5, 2015, stating that the Warren County Assessor’s Office had received Complainant’s 2015 personal property declaration; that Nordwald had forwarded Complainant’s 2015 information to the St. Louis County Assessor’s Office; that Nordwald had previously advised Complainant to claim his personal property for 2014 to St. Louis County; and that Nordwald had forwarded Complainant’s 2014 information to the St. Louis County Assessor’s Office. |
| Exhibit 17 | Subpoena Duces Tecum issued to Warren G. Wobbe, Jr., (Wobbe) President, Innsbrook Properties ordering his appearance at the Evidentiary Hearing and the production of the Occupancy Log for the Warren County home |
| Exhibit 18 | Occupancy Log for the Warren County home, January 1, 2015, to January 24, 2017 |
Respondent also offered as evidence the live testimony of Strain, Nordwald, and Wobbe.
Strain’s Testimony
In her Written Direct Testimony, Strain testified that she has served as the Manager of Personal Property Department of the St. Louis County Assessor’s Office since November 6, 2013. Strain testified that her job duties require her to be responsible for planning, organizing, and implementing the valuation of all personal property in St. Louis County according to the Revised Missouri Statutes, specifically Chapter 137.
Strain testified that she received Complainant’s 2016 St. Louis County Personal Property Declaration Form for his personal property and his business personal property. Strain testified that, in 2014, Complainant filed his declaration with Warren County and changed his address from the Warren County home to the St. Louis County home. Strain testified that, in March 2015, Nordwald notified Respondent’s office of Complainant’s change of address, which caused Strain to research the St. Louis County tax rolls. Strain testified that Complainant did not have an account related to the address of the St. Louis County home, but there was an active personal property account for “a Jane T. Smith” at that address. Strain testified that she added Complainant to the St. Louis County tax rolls for 2014 and mailed him a 2014 tax bill and a 2015 declaration form. Strain testified that she conducted research, which showed that Complainant owns the St. Louis County home, Complainant works in St. Louis County “14 hours a day, [seven] days a week during tax time,” and that he “always has a place to stay overnight in St. Louis County.” Strain testified that from this information she formed the opinion that Complainant should be assessed in St. Louis County because “the majority of his time appears to be spent in St. Louis County,” even though he spends weekends in Warren County. Strain testified that her research indicated that the deed to the St. Louis home indicated Complainant was to use the home as a “principal residence.”
Strain testified that Complainant’s business personal property was removed from the St. Louis County tax rolls in 2010 based on Complainant’s 2010 Business Personal Property Declaration, which indicated that Complainant was a sole proprietor living in Warren County. Strain testified that “the clerk who processed the declaration removed [Complainant’s] account from our tax rolls, and forwarded a copy to the Warren County Assessor’s office. This is a standard practice for our department to accept the information as submitted by the taxpayer.”
On cross-examination, Strain testified that she believed Complainant was a resident of St. Louis County because Complainant owned the St. Louis County residence. (Tr. 83) Strain testified that she thought the difference between a recreational property and a home was that a recreational property is “not where you spend the majority of the time.” (Tr. 87) Strain testified that she determined that Complainant was a resident of St. Louis County by following the statute. (Tr. 88) Strain further testified that she considered other “factors” in determining that Complainant was a resident of St. Louis County:
[Complainant] brought up that [he is] a registered voter in Warren County. However, when you registered to vote, you just have to testify to the fact that this is my address, you don’t have to prove that that is where you live. Same thing with your driver’s license. You just have to give a piece of mail with a –a current address on it as to – that you receive mail at that address.. . .
It may say that you intend to live there. It does not necessarily mean that you do live there.
(Tr. 89-90)
Strain further testified that she determined that Complainant was a resident of St. Louis County based on the facts that he “owned a residence . . . owned a rental property . . . and operated a business in St. Louis County.” (Tr. 91) Strain testified that she was aware that Complainant’s vehicle was registered in Warren County and that Missouri law requires an assessor to take into account the county of the vehicle registration in determining residency. (Tr. 92-93) Strain testified that she did not consider Complainant’s certifications stating that he was a resident of Warren County and not of St. Louis County “based on conversations with Warren County, they would not assess [Complainant].” (Tr. 93) Strain testified that “since you own a residence in St. Louis County, and you own a vehicle, then yes, we have the right to assess you.” (Id.) Strain testified that she “had no idea” what Complainant’s intent was. (Tr. 94) When questioned about Complainant’s change of mailing address on the 2014 Warren County Assessment List, Strain testified that she knew, “based on this form, and based on conversation with Warren County, that they were not going to assess [Complainant].” (Tr. 97) Strain testified that St. Louis County assessed Complainant’s personal property and business personal property because the St. Louis County home was an address in St. Louis County, because Complainant owned a vehicle registered in the State of Missouri, and because she believed that Complainant had taxable situs and residence in St. Louis County. (Id.) Strain testified that “[m]ailing addresses can be anywhere.” (Id.)
When asked why Strain believed that the amount of time one spends at a particular residence to be important in determining which residence to use for taxation of personal property and business personal property, Strain testified based on her personal experience:
We have land in Shannon County, and we go down there, I don’t know, every three years. But I don’t consider myself a resident of Shannon County just because we have land there, and a home there, and we can go there. I consider myself a resident of St. Louis County because the majority of my time is spent here. This is where I work, this is where, if I had a business[,] it would be in the St. Louis area, this is where my family is. I would consider myself a resident of St. Louis County, based on the majority of my time is spent here.
. . .
It is my opinion, but I never have used the word domicile in my life I don’t think. So I – I never tried to determine [Complainant’s] domicile. I determined [Complainant’s] residence.
(Tr. 99-100)
Strain testified that she thought it relevant to the determination of Complainant’s residence that Mrs. Smith lived in St. Louis County because Complainant and Mrs. Smith had been married “only three years . . . to me, if you’re a newly married person, you would spend most of your time together, and you would live together, and not live in two separate places. . . . [t]hat’s just my opinion.” (Tr. 101) Strain acknowledged that she had no legal basis for her opinion concerning the effect a taxpayer’s marital status has on residency. (Tr. 102) Strain acknowledged that she did not investigate the reason Mrs. Smith had declared the address of the St. Louis County home. (Id.)
Nordwald’s Testimony
In her Written Direct Testimony, Nordwald testified she has been the Warren County Assessor since September 1, 2005. Nordwald testified that she received Complainant’s 2014 Personal Property Declaration form, on which Complainant had “scratched out” his previous mailing address of “Ste. 209, 10408 Manchester Road, 63122-1556 and added 221 Pebble Acres Drive, 63141.” Nordwald testified that “where the form provides for the question ‘Has your address changed?’ [Complainant] marked YES, and he provided an address of 221 Pebble Acres, St. Louis, MO 63141.” Nordwald testified that she used this information to determine that Complainant’s 2014 Personal Property Declaration form and all subsequent years was filed in the wrong county. Nordwald testified that she confirmed with Respondent’s office that 221 Pebble Acres Drive was a residential home located in St. Louis County. Nordwald further testified that she relied on Section 137.090.1 to determine whether Complainant’s 2014, 2015, and 2016 declarations were filed in the wrong county; that she mailed Complainant’s 2014 Personal Property Declaration form back to him with the instruction to notify St. Louis County that he resided there; and that Complainant obtained and “filled out” blank 2015 and 2016 Personal Property Declaration forms from the Warren County Personal Property Department and returned them to the Warren County Assessor’s Office.
On direct examination during the Evidentiary Hearing, Nordwald testified that when Complainant submitted his 2014 Personal Property Declaration form, “noting that he had an address of 221 Pebble Acres Drive,” “upon investigation. . . discovered that our office had previously – previously accepted [Complainant’s] declarations in error, as his real estate located in Warren County was a recreational property, and it had the restrictions on it that prohibited him from living there temporarily . . . or permanently.” (Tr. 124) Nordwald testified that her research revealed that Complainant owned the St. Louis County home, which she concluded was “his permanent residence” because she “knew that couldn’t live in Warren County.” (Tr. 126) Nordwald testified that she had contacted the developer of Innsbrook and that she had “a list of parcels that are – where permanent residence is allowed, and [the Warren County home] is not, or his parcel is not included on that list.” (Tr. 127)
On cross-examination, Nordwald testified that she is not a lawyer. (Tr. 129) Nordwald testified that “what is recorded in [the] Warren County Recorder of Deeds Office I must follow.” (Id.) Nordwald testified that to fulfill her duty to “fairly and equally assess everyone, I must apply the law equally to everyone, and that’s what I did.” (Id.) In response to questioning regarding Nordwald’s application of the law, she testified:
Chalet owners must maintain domicile residence elsewhere. Permanently or temporarily. [The Warren County home] follows that—that rule. Just as everyone else that is in those areas.
. . .
That’s how I interpret the statue (sic), and how I run my office.
(Tr. 130)
In response to questioning about any evidence Nordwald had to indicate Complainant intended to be domiciled in St. Louis County, Nordwald testified, “What you intend to do is anything that you want to state.” (Tr. 131) Nordwald testified that assessors use information from the Department of Revenue concerning the county in which a vehicle as registered “as a guideline to check, to make sure where – when a car is registered, and when the tags are due, and where the last county of registration are.” (Tr. 133) Nordwald testified that the database is not always accurate. (Id.) Nordwald testified that where taxpayers have used “many addresses,” her office investigates and researches the taxpayers to determine where they live. (Tr. 135) When questioned about whether she had considered Complainant’s documentation of living, relaxing, and leisure time activities as evidence that Warren County was where he should be assessed, Nordwald testified that all of Complainant’s receipts were on a weekend. (Tr. 138) Nordwald further testified that one receipt was for the rental of a condominium at Innsbrook. (Tr. 139)
Nordwald further testified that she had asked Complainant to obtain a letter from Innsbrook stating that Complainant was “physically living” at the Warren County home:
That’s what I require everyone to do.
. . .
I require everyone to present me with a letter that says they are living there.
. . .
365 days a year.
. . .
You have to . . . provide me with a letter, because the indentured statements and what is recorded in the recorder of deeds says, ‘You must maintain temporary – you cannot live there temporary, or permanently,’ I must have in my hands, a letter that says you can live there 365 days. I did not say any differently than that. Those are my rules.
. . .
Because I have very low tax rates, much lower than St. Louis County, and if I allow one taxpayer to be treated differently than another taxpayer, and they come in all the time to try to get a lower tax bill, I have to make sure that I’m treating everyone fairly.
(Tr. 139-41)
Nordwald then testified that she did not have a letter from every resident of Innsbrook, signed by Innsbrook but that she required such a letter if “you have deed restrictions.” (Tr. 141) Nordwald testified that this was her “rule” but that she had not made up the rule because “[e]very assessor before me, my predecessors, we’ve all had that rule.” Nordwald testified that, when Complainant notified her office that he had an address in St. Louis County, she conducted research and discovered the St. Louis County home had 2,000 square feet as compared to the Warren County home, a chalet with 700 square feet, and concluded that he didn’t live at the Warren County home. (Tr. 142-45)[3]
Wobbe’s Testimony
Wobbe testified and produced an Occupancy Log for the Warren County home pursuant to a subpoena duces tecum issued by the STC. On direct examination, Wobbe testified that he is the President of Innsbrook Properties, Inc.; Executive Vice-President of the Innsbrook Corporation; and a Trustee for the Homeowners’ Association. (Tr. 157) Wobbe testified that the Occupancy Log contained a running record of entries into the Warren County home. Wobbe testified that the Occupancy Log was controlled through the Innsbrook security system so that “when an owner of a building activates or deactivates his security, [the log] records a time, date, whether it was an entrance by a user code.” (Tr. 159) Wobbe testified that the Occupancy Log was created in the regular course of business at or near the time of the acts and events recorded on the log and that the log “had been in existence since [the Warren County home] was built.” (Id.) Wobbe testified that the Occupancy Log was “[p]art of the promotion of our development . . . the sense of security . . . helps us monitor who enters a property,” whether the entrant was the owner, service personnel, or burglars. (Tr. 160) Wobbe testified that Innsbrook contains “[r]ecreational chalets, which are intended for secondary homes . . . villas . . . which can be used either recreationally or for primary residence . . . cottages which can be used as secondary or primary residents (sic). . . . [a]nd . . . custom homes for primary residents (sic). (Tr. 163)
Wobbe testified that the Warren County home was a chalet “used as a secondary residence, not a primary resident (sic).” (Id.) Wobbe testified that, based upon his review of the Occupancy Log, Complainant “tends to occupy the property on weekends.” (Tr. 164) Referring to the Occupancy Log, Wobbe testified that the log showed “many occasions” of “entry on a Thursday or a Friday” and “either exit on Sunday evening or Monday morning.” (Tr. 164, 167) Wobbe further testified that some owners used their chalets for “two to three week extended stays.” (Tr. 167) Wobbe testified that, generally, if the homeowners’ association gained “knowledge, either through neighbors, or tracking,” that a recreational chalet was being “resided in on a primary basis,” the trustees would contact legal counsel and a cease and desist letter would be issued to the owner. (Tr. 168) Wobbe testified that the Occupancy Log for the Warren County home did not indicate “an activity or usage that would be coupled with the idea of somebody . . . residing in this on a full-time basis.” (Id.) Wobbe testified that no such letter had been issued to Complainant. (Tr. 169)
On cross-examination, Wobbe testified that “[w]e only go through the [logs] that we feel are problematic.” (Tr. 173) Wobbe testified that an investigation of usage might be based upon a report from neighbors and may or may not be associated with a “disturbance.” (Tr. 172-74)
In response to questioning from the Hearing Officer, Wobbe testified that an example of an acceptable long-term usage of a recreational chalet would be a situation in which an owner has a primary residence in another state where the owner lives for “six months and a day” then he “come[s] to Innsbrook for three months out of the season.” (Tr. 175) Wobbe further testified, “So when it comes to – to situations with empty nesters, you can – you can see an extended period of time for usage.” (Id.) Wobbe testified that it would be within the trustees’ discretion to determine what constitutes overuse of a building in Innsbrook. (Id.) Wobbe testified that “[t]he majority of our customer base is St. Louis. . . . they may have a residence in St. Louis, they’re – they’re just utilizing Innsbrook for extended stays when . . . the weather permits.” (Tr. 176-77)
Exhibits
Respondent’s Exhibits 1 through 18 were received into evidence without any specific objection by Complainant. However, Complainant objected to the answer to Question No. 10 in Strain’s Written Direct Testimony as hearsay. The Hearing Officer sustained the objection and the answer to Question No. 10 was stricken. The portions of the answers to Question Nos. 8 and 10 in Nordwald’s Written Direct Testimony that related to the excluded use restrictions also were stricken.
- Post-trial Briefs Filed. Per request of the parties, the Hearing Officer ordered the simultaneous filing of post-trial briefs. The parties simultaneously filed their opening briefs on March 24, 2017, and simultaneously filed their reply briefs on April 24, 2017. The appeals were taken under advisement as of April 25, 2017.
- Presumption Rebutted – Proper Tax Situs is Warren County as Complainant was not a Resident of St. Louis County on Subject Tax Date.Complainant’s evidence was substantial and persuasive to rebut the presumption that he was a resident of St. Louis County on January 1, 2016.
CONCLUSIONS OF LAW AND DECISION
Jurisdiction
The STC 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 BOE, 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[4].
Basis of Assessment
The Constitution mandates that real property and tangible personal property be assessed at its value or such percentage of its value as may be fixed by law for each class and for each subclass. 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%; agricultural property at 12%; personal property at 33.33%. Section 137.115.5.
Every person owning or holding real property or tangible personal property on the first day of January, including all such property purchased on that day, shall be liable for taxes thereon during the same calendar year. Section 137.075. “Missouri generally taxes ‘all personal property with a Missouri tax situs pursuant to § 137.075.’” Johnson v. Otey, 299 S.W.3d 308, 310 (Mo. App. S.D. 308, 310 (Mo. App. S.D. 2009), quoting State ex rel. Leggett v. Sovran Leasing Corp., 909 S.W.2d 664, 665 (Mo. banc 1995). “The tax situs of personal property normally is the owner’s domicile.” Johnson, 299 S.W.3d at 310, citing Bi Go Markets, Inc. v. Morton, 843 S.W.2d 916, 918–20 (Mo. banc 1992).
Assessment of Personal Property and Business Personal Property and Residency
All tangible personal property of whatever nature and character situate in a county other than the one in which the owner resides shall be assessed in the county where the owner resides. Section 137.090.1. However, houseboats, cabin cruisers, floating boat docks, and manufactured homes, as defined in section 700.010, used for lodging shall be assessed in the county where they are located, and tangible personal property belonging to estates shall be assessed in the county in which the probate division of the circuit court has jurisdiction. Id. Section 137.090.1 applies to taxpayers who are natural persons and who are not corporations, partnerships, or some other legal entity. Compare Section 137.095.
Here, Complainant argues that he should not be assessed by Respondent because Complainant is “domiciled” in Warren County even though he also has a residence in St. Louis County. Essentially, Complainant is arguing that the term “reside” used in Section 137.090.1 is synonymous with the term “domicile.”
The legislature did not define “reside” in Section 137.090.1; consequently, we must look to the plain and ordinary meaning of each term as found in the dictionary. Black’s Law Dictionary (10th ed. 2014) defines “reside,” in relevant part, as:
- The act or fact of living in a given place for some time . . . 2. The place where one actually lives, as distinguished from a domicile . . . Residence usu. just means bodily presence as an inhabitant in a given place; domicile usu. requires bodily presence plus an intention to make the place one’s home. A person thus may have more than one residence at a time but only one domicile. Sometimes, though, the two terms are used synonymously . . . 3. A house or other fixed abode; a dwelling . . . .
Black’s Law Dictionary (10th ed. 2014) defines “domicile,” in relevant part, as:
- The place at which a person has been physically present and that the person regards as home; a person’s true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere. . . . 2. The residence of a person or corporation for legal purposes. . . . “Tax statutes frequently speak in terms of residence, intending it to be the equivalent of domicile. For example, the New York estate tax speaks in terms of residence and non-residence. Similarly …, the United States imposes an estate tax on any resident or citizen of the U.S. Although both statutes use the term ‘residence,’ its usage has been construed to mean ‘domicile.’” Robert C. Lawrence III, International Tax and Estate Planning § 1.03(a)(4), at 8–9 (1989).
Merriam-Webster’s Online Dictionary defines the word “reside” as, “to dwell permanently or continuously . . . occupy a place as one’s legal domicile . . . .” Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/reside (Last retrieved June 14, 2017).
“The words ‘residence’ and ‘domicile’ may be used interchangeably.” King v. Walsh, 484 S.W.2d 641, 644 (Mo. banc 1972). The Missouri Supreme Court has defined residence or domicile as:
The place with which a person has a settled connection for certain legal purposes, either because his home is there, or because that place is assigned to him by law, … and also as that place where a man has his true, fixed and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning.
King, 484 S.W.2d at 644. “The domicile at the time of making the assessment determines the place of taxation of all property taxable at the place of residence of its owner.” State ex rel. Ziegenheim v. McCausland, 55 S.W. 218, 218 (Mo. 1900).
A person can have more than one residence but only one domicile, and domicile is said to be inclusive of residence, having a broader and more comprehensive meaning than residence. M.R. v. S.R., 238 S.W.3d 205, 208 (Mo. App. W.D. 2007); State ex rel. Quest Communications Corp. v. Baldridge, 913 S.W.2d 366, 370 (Mo. App. S.D. 1996), quoting 25 Am.Jur.2d Domicile Section 4 (1966). Some Missouri courts have treated “residence” and “domicile” as having slightly different meanings in the context of certain situations. See State ex rel. Quest Communications Corp, 913 S.W.2d at 369-70 (where defendant had a home in Missouri and a home in Texas, spent part of the calendar year at each home, had a Texas driver’s license, was registered to vote in Texas, and filed his federal income tax return showing Texas as his domicile, “residence” was defined in a different manner than “domicile” for purposes of Missouri’s general venue statute); see M.R., 238 S.W.3d at 208 (for purposes of the Missouri Adult Abuse Act, venue proper in the county where victim resided, which meant in the county in which she either was domiciled or had a residence).
Where a statute uses words with a definite and well known meaning at common law, we shall presume that the words are used in the sense in which they were understood at common law, and they will be so construed unless it clearly appears such a construction was not so intended. State ex rel. Quest Communications Corp., 913 S.W.2d at 369. “At common law, the words ‘domicile’ and ‘residence’ are almost invariable employed as synonymous and interchangeable.” Fowler v. Clayton School Dist., 528 S.W.2d 955, 957 (Mo. App. 1975). “The Missouri Supreme Court has instructed that the primary rule of statutory construction is to glean legislative intent by understanding the statute according to its objective.” George v. Jones, 317 S.W.3d 662, 666 (Mo. App. S.D. 2010) (internal quotations omitted). “[A] proper analysis [ ] must consider the context in which the General Assembly used the words, the purposes that it intended to accomplish, and the evils that it intended to cure.” George, 317 S.W.3d at 666, quoting Harper v. Dir. of Revenue, 118 S.W.3d 195, 199 (Mo. App. 2003). “[T]he meaning of the word ‘resident’ depends upon the purpose in the law where the word is employed.” State ex rel. Quest Communications Corp., 913 S.W.2d at 369 (quotation omitted).
The objective of Section 137.090.1 is to ensure that the personal property and the business personal property of a Missouri taxpayer, which is capable of being moved between and among counties, is taxed in only one county. The “evil” it is intended to cure is to ensure ad valorem taxes are assessed on a Missouri taxpayer’s personal property and business personal property in Missouri only once per tax year. In light of this objective and the “evil” it is intended to cure, and given the plain and ordinary meaning of “residence” and “domicile” and the treatment of those terms by Missouri courts, it is reasonable and logical to conclude that for the purposes of Section 137.090.1 the legislature intended the term “reside” to be synonymous with the term “domicile.” Stated another way, where a natural person has multiple residences in multiple counties, the key is to determine which residence is his primary residence, i.e., the residence the person intends to make his permanent home, which appears to be the center of his affairs, or which is the place where he votes or exercises the rights and duties of a citizen. See Chariton County, 59 Mo. at 243.
“The question of residence or domicile is one of fact, a question often difficult to determine.” King, 484 S.W.2d at 644. Residency is to be determined from the acts and intentions of an individual citizen. George, 317 S.W.3d at 664, quoting State ex rel. Thomas v. Neeley, 128 S.W.3d 920, 927 (Mo. App. 2004). “Residence is largely a matter of intention, to be determined not only from the utterances of the person whose residence is in issue but also from his acts and in the light of all the facts and circumstances of the case.” King, 484 S.W.2d at 644. Conduct is an important factor in determining intention. George, 317 S.W.3d at 664, quoting Barrett v. Parks, 352 Mo. 974, 180 S.W.2d 665, 666 (Mo. 1944). Intent is subjective. Fowler, 528 S.W.2d at 959. Accordingly, the rule is that where the behavior of the person is at odds with his professed intent, the former will control, for actions speak louder than words. Id. “Where the facts conflict, there is a presumption strongly in favor of an original or former residence as against an acquired one.” George, 317 S.W.3d at 664, citing Marre v. Reed, 775 S.W.2d 951, 955 (Mo. banc 1989).
“In determining the issue of residence, the fact finder is entitled to believe all, none, or part of the declarations of the person subject to the inquiry.” George, 317 S.W.3d at 664, quoting Fritzshall v. Bd. of Police Comm’rs, 886 S.W.2d 20, 23 (Mo. App. 1994). If the evidence would warrant either of two opposed findings, a court must uphold the factual determinations made by the fact finder. George, 317 S.W.3d at 664, citing Fritzshall, 886 S.W.2d at 23.
The time one spends at one residence or the other is not necessarily determinative of domicile; rather, it is the person’s intention of making the residence his home that is more important. “Physical stay or residence in any particular place will not, of itself, constitute a domicile. State ex rel. Ramey v. Dayton, 77 Mo. 678, 682 (Mo. 1883). “The physical act of staying must be accompanied with the mental determination of making a home or domicile in the place where the party stays or abides.” State ex rel. Ramey, 77 Mo. at 682, citing Chariton County, 59 Mo. at 243.
Investigation by Hearing Officer
In order to investigate appeals filed with the STC, 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. 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.
Here, in addition to considering all of the relevant evidence presented by the parties, the Hearing Officer inquired of Complainant and of some of the witnesses during the evidentiary hearing.
Burden of Proof
Weight to be Given Evidence
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 weighs the evidence, which means its weight in probative value rather than the quantity or amount of evidence. George, 317 S.W.3d at 669. “The weight of the evidence is not determined by mathematics, but depends on its effect in inducing belief.” Id. (quotation omitted). When faced with conflicting evidence, the Hearing Officer must weight that evidence to determine which reasonable inference to draw therefrom. Id.
The determination of the credibility of witnesses is a function of the factfinder. Missouri Church of Scientology v. State Tax Commission, 560 S.W.2d 837, 843 (Mo. banc 1977); Board of Education, Mt. Vernon Schools, Mt. Vernon v. Shanks, 542 S.W.2d 779, 782 (Mo. banc 1976). The Hearing Officer may determine a question of fact solely upon a finding of lack of credibility of uncontradicted and unimpeached testimony of a party who has the burden of proof. Scientology, supra; Koplar v. State Tax Commission, 321 S.W.2d 686, 694 (Mo. 1959); May Department Stores Co. v. State Tax Commission, 308 S.W.2d 748, 761 (Mo. 1958).
An administrative agency may not arbitrarily ignore relevant evidence not shown to be disbelieved. Only if it makes a specific finding that undisputed or unimpeached evidence is incredible and is unworthy of belief may it disregard such evidence. Knapp v. Local Govern. Emp. Retire. Sys., 738 S.W.2d 903, 913 (Mo. App. W.D. 1987).
Discussion
Here, Complainant argues that he was not a resident of St. Louis County on January 1, 2016, and, therefore, Respondent cannot assess ad valorem taxes against Complainant’s personal property and business personal property for 2016. Respondent counter argues that Complainant was a resident of St. Louis County on January 1, 2016, and, therefore, his property was properly assessed. The determination of Complainant’s residence on the subject tax date requires an intensive analysis of the specific facts in this case.
Although not immediately conclusive of whether Complainant was a resident of St. Louis County on January 1, 2016, Complainant presented substantial evidence that he was a resident of Warren County on the tax date at issue. Substantial evidence is that which is relevant, adequate, and reasonably supports a conclusion. Cupples Hesse Corp., 329 S.W.2d at 702.
The evidence of Complainant’s actions was congruent with Complainant’s credible testimony that he intended to make the Warren County home his primary residence. In particular, Complainant’s evidence established that Complainant has owned the Warren County home since 1995. Complainant’s evidence also established that he intended to abandon St. Louis County in late 1995 and intended to make the Warren County home his residence. In January 1996, within a month of purchasing the Warren County home, Complainant registered to vote in Warren County and listed the address of the Warren County home as the address of his residence. Warren County issued a Voter Identification Card to Complainant identifying his ward/precinct as “Innsbrook” and identifying the address of Complainant’s residence as the address of the Warren County home. When Complainant purchased the St. Louis County home in 2001, Complainant did not register to vote in St. Louis County. When Complainant purchased his vehicle in 2006, he titled the vehicle with the State of Missouri and identified the address of his residence as the address of the Warren County home. When Complainant renewed his Missouri driver’s license in 2014, he identified the address of his residence as the address of the Warren County home. Respondent did not refute or discredit any of this evidence.
The substantial nature of Complainant’s evidence is but the first element of the analysis. To rebut the presumption of correct assessment, Complainant’s evidence also must be persuasive. Persuasive evidence is that which causes the trier of fact to believe, more likely than not, the conclusion advocated is the correct conclusion. Id.
Complainant’s evidence in this case was persuasive because it demonstrated Complainant consistently and persistently intended to make the Warren County home his primary residence and that Complainant’s intention was not questioned by St. Louis County for 18 years. Respondent did not dispute that Complainant’s personal property declarations were accepted and his property was assessed by the Warren County Assessor from 1996 to 2014. Respondent presented evidence to show that Complainant changed his mailing address to the St. Louis County home on his 2014 Personal Property Declaration form filed with the Warren County Assessor’s Office, which allegedly caused Nordwald to inform Respondent that Complainant was a resident of St. Louis County. However, Complainant testified that he did not intend to change the address of his primary residence but only his mailing address because he was having trouble with the post office returning some of his mail. Notably, at the time Complainant changed his mailing address on the 2014 Personal Property Declaration form, he had already maintained the Warren County home as his primary residence for approximately 18 years and had owned the St. Louis County home for approximately 13 years. On the surface, these facts seemingly conflict, but “there is a presumption strongly in favor of an original or former residence as against an acquired one.” George, 317 S.W.3d at 664, citing Marre v. Reed, 775 S.W.2d 951, 955 (Mo. banc 1989). Complainant demonstrated his intent to make the Warren County home his primary residence before he purchased the St. Louis County home. Despite the change of mailing address in 2014, Complainant’s actions showed that he never relinquished the intent to make the Warren County home his primary residence.
Respondent presented evidence that Mrs. Smith had declared on personal property declaration forms for 2014, 2015, and 2016 that her residence was the St. Louis County home. However, Complainant’s evidence indicated that he and Mrs. Smith had been married only since 2014 and that Mrs. Smith had been residing in St. Louis County before the couple married. Complainant credibly testified that he was planning to retire from the practice of tax law as soon as he completed “one more project,” probably sometime in 2017, and that he had hope that, in retirement, Mrs. Smith would relocate her home to the Warren County home. Given the stage of life of Complainant and Mrs. Smith in relation to the short period of time the couple had been married as of January 1, 2016, one cannot conclude that Mrs. Smith’s declaration of home address in St. Louis County negated Complainant’s evidence regarding the lengthy history of acts demonstrating his intention to make the Warren County home his primary residence. “If a married man has two places of residence at different times of the year, [the residence] that will be deemed his domicile which he himself selects or describes or deems to be his home, or which appears to be the centre (sic) of his affairs, or where he votes or exercises the rights and duties of a citizen.” Chariton County, 59 Mo. at 242-43.
Although the relatively short amount of time Complainant spent at the Warren County residence from January 1, 2015, to January 24, 2017, shown on the Occupancy Log cannot be overlooked, case law instructs that the amount of time Complainant spends at one residence or the other is not alone outcome determinative of his primary residence on January 1, 2016. Complainant’s subjective intent and objective behavior are more important.[5]
Moreover, the record is devoid of any evidence establishing that Respondent made his decision to assess Complainant’s personal property and business personal property based on an analysis of the Occupancy Log. Even if such an analysis had been conducted, it would not have automatically resulted in a proper determination of Complainant’s primary residency. Anecdotally, according to the Occupancy Log, Complainant was present at the Warren County home January 1, 2016, through January 4, 2016. Consistent with Complainant’s testimony, the Occupancy Log showed that Complainant, a tax attorney, spent less time at the Warren County home during “tax season” than during other times of the calendar year. This information does not contradict Complainant’s stated intent and the objective acts demonstrating his intent to make the Warren County home his primary residence.
Complainant testified that he abandoned St. Louis County in favor of Warren County in 1995 by informing Respondent’s office of his change of physical address. Strain testified that Complainant had no personal property account in St. Louis County prior to 2014 and that Complainant’s business personal property account had been deactivated in 2010 due to a notice of change of address to the Warren County home. Complainant has been registered to vote in Warren County since 1996. Complainant’s vehicle has been registered in Warren County since 2006, the year after Nordwald took office as the assessor. Complainant’s driver’s license has identified Warren County as Complainant’s home at least since the last date it was issued in 2014. Nordwald admitted that Complainant’s personal property and business personal property had been assessed in Warren County prior to 2014, even though she claimed the prior assessments were in error. Under the totality of the circumstances, the weight of the relevant evidence compels the conclusion that, more likely than not, Complainant’s primary residence was the Warren County home as of January 1, 2016.
ORDER
On January 1, 2016, Complainant was not a resident, as the term is used in Section 137.090.1, of St. Louis County. Consequently, the proper tax situs of Complainant’s personal property and business personal property on January 1, 2016, was Warren County, not St. Louis County. The decision of the BOE is SET ASIDE. [6]
Application for Review
A party may file with the STC an application for review of this decision within 30 days of the mailing date set forth in the Certificate of Service for this Decision. The application shall contain specific facts or law as grounds upon which it is claimed the decision is erroneous. Said application must be in writing addressed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, MO 65102-0146, and a copy of said application must be sent to each person at the address listed below in the certificate of service.
Failure to state specific facts or law upon which the application for review is based will result in summary denial. Section 138.432, RSMo
Disputed Taxes
The Collector of St. Louis County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending the possible filing of an Application for Review, unless said taxes have been disbursed pursuant to a court order under the provisions of Section 139.031.8, RSMo.
Any Finding of Fact which is a Conclusion of Law or Decision shall be so deemed. Any Decision which is a Finding of Fact or Conclusion of Law shall be so deemed.
SO ORDERED June 30, 2017.
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 30th day of June, 2017, to: Complainant(s) counsel and/or Complainant, the County Assessor and/or Counsel for Respondent and County Collector.
Jacklyn Wood
Legal Coordinator
[1] Respondent’s Exhibit 11, a copy of the Declaration of Trust and Restrictions of Innsbrook Estates Subdivision, Warren County, Missouri, (use restrictions) was excluded from evidence by Order of the Hearing Officer on December 22, 2016.
[2] Respondent’s Exhibit 11, a copy of the use restrictions, was excluded from evidence by Interlocutory Order of the Hearing Officer on December 22, 2016. During Respondent’s direct examination of Nordwald at the Evidenitary Hearing, counsel for Respondent made an offer of proof regarding the use restrictions “in support of [Respondent’s] defense of the assertion that [the] Warren County residence is being used as a permanent residence by [Complainant]. (Tr. 113-121) Following the offer of proof and argument from the parties, the Hearing Officer excluded the use restrictions as irrelevant and noted Respondent’s continuing objection to their exclusion for the record. Respondent’s Exhibit 12, a copy of the Innsbrook Estates Plat Thirty map, was excluded so as to be consistent with the ruling excluding Complainant’s Exhibit J, which included a copy of the same plat map.
[3] On re-direct examination and subsequent re-cross examination, Nordwald testified that Complainant was “harassing” her by coming to her office and calling her on the telephone, demanding that she put him on the Warren County 2014 tax rolls. (Tr. 152) Nordwald testified that she explained that she would not provide Complainant with a blank personal property declaration form because he needed to claim his personal property assets in St. Louis County. (Tr. 154) Nordwald and Complainant, who was conducting the questioning, disputed the events as recalled by Nordwald. (Tr. 156) Complainant objected to Nordwald’s testimony and asked that the “whole line of questioning be stricken.” (Id.) The Hearing Officer received the testimony to be given the weight deemed necessary in context with all of the other evidence. (Id.)
[4] All statutory references are to RSMo 2000, as amended, unless otherwise stated.
[5] Throughout the proceedings in these appeals, Respondent and Nordwald attached great importance to the fact that the Warren County home is located in a privately developed, incorporated community governed by a board of trustees and is allegedly subject to a set of property use restrictions recorded with the Warren County Recorder of Deeds. The restrictions were excluded from evidence as irrelevant to the determination of whether Complainant was a resident of St. Louis County on January 1, 2016, by Order of the Hearing Officer prior to the Evidentiary Hearing. Related evidence was excluded as irrelevant during the Evidentiary Hearing. Throughout the Evidentiary Hearing, Respondent and Nordwald continued to attempt to argue that the use restrictions prohibited the Warren County home from being used as Complainant’s primary residence, so he could not have resided in Warren County on the subject tax date. However, the focus of the inquiry is whether Complainant resided in St. Louis County on January 1, 2016. Such evidence serves only to blur the picture because evidence of whether Complainant was utilizing the Warren County home in violation of any recorded use restriction would have been more prejudicial than probative on the issue of whether he was a resident of St. Louis County. Nordwald’s testimony implied that it is her practice to review recorded use restrictions to determine which personal property declarations to reject on the basis that a use restriction allegedly prohibits the owner from permanently residing on a parcel of real property. Nordwald testified that she obtains lists of real property owners at Innsbrook who allegedly have such restrictions and requires the owners to provide her with a letter stating whether the owners “physically” lived there. (Tr. 127-29, 139-45) Notably, Missouri law does not explicitly authorize or direct a county assessor to determine that a taxpayer cannot file a personal property declaration in a particular county based on a recorded use restriction attached to that taxpayer’s title to real property. Recorded use restrictions are private agreements, contracts, between a real property owner and the entity which oversees enforcement of the restrictions, not between the assessor and the property owner or the assessor and the entity. In such situations, the entity is bound by the terms of the agreement in addressing a real property owner’s non-compliance with a use restriction. Furthermore, even though a use restriction might be recorded, the restriction might be routinely violated by a property owner or a violation might be accepted, overlooked, ignored, or waived by the private entity which oversees its enforcement – which would be unknown to a county assessor drawing a conclusion as to residency based on the mere fact that a use restriction was recorded. On cross-examination, Complainant testified that the Innsbrook Homeowner’s Association had not taken enforcement action against him for any reason even though the association had authority to take enforcement action against him if he “were a disturbance” because Complainant is a member of the homeowners’ association. (Tr. 25) The evidence as a whole implied that both Strain and Nordwald drew a legal conclusion as to Complainant’s county of residence based in part upon their interpretation of the use restriction related to the Warren County home and the deed to the St. Louis County home. The record reveals that neither Strain nor Nordwald attended law school, and they are not legal professionals; therefore, they were not qualified to draw legal conclusions based on these documents. A determination of a taxpayer’s residence for purposes of Section 137.090.1 should be based on a taxpayer’s declaration, which is a certified statement, along with the specific, objective facts.
[6] The Decision and Order in this case should be construed narrowly and should not be read to mean that a taxpayer can elect to shift his or her primary residence for purposes of Section 137.090.1 on a whim. Where a taxpayer has multiple residences in multiple counties, the determination of which residence should be used for ad valorem taxation of a taxpayer’s personal property and business personal property must be based on the substantial and persuasive nature of the specific facts and circumstances of each case.