State Tax Commission of Missouri
ARNIE C. DIENOFF,)
)
Complainant,)
)
v.)Appeal No.08-10367
)
PHILIP MUEHLHEAUSLER, ASSESSOR,)
ST. LOUIS COUNTY, MISSOURI,)
)
Respondent.)
ORDER
DENYING APPLICATION FOR REVIEW
FINDINGS OF FACT
1.On July 15, 2009, Senior Hearing Officer W. B. Tichenor entered his Decision and Order (Decision) affirming the assessments by the St. Louis County Board of Equalization.
2.On August 14, 2009, at 11:58 pm, Complainant transmitted to the Commission by email attachment his Application for Review.Under Commission Rule, the Application for Review was deemed received on August 17, 2009.
3.The deadline for filing an Application for Review of the July 15th Decision was 5:00 p.m., August 14, 2009.
4.Complainant’s Application for Review was untimely filed.
CONCLUSIONS OF LAW
An Application for Review must be filed within thirty days following the date of mailing of the Hearing Officer’s Decision and Order.[1]
An application for review shall be accepted for filing by electronic transmission.Electronic filings received by the commission before 5:00 p.m. of a regular workday are deemed filed as of that day.Filings received after 5:00 p.m. are deemed filed on the next regular commission work day.Time of receipt is determined by the commission’s computer.[2]
DECISION
In accordance with 12 CSR 30-3.010(8), Complainant’s electronic filing at 11:58 p.m. on August 14, 2009, is deemed to have been filed on August 17, 2009.The deadline for filing an Application for Review of the July 15, 2009, Decision was 5:00 p.m., August 14, 2009. Complainant did not timely pursue his administrative remedy before the Commission.Therefore, the Commission cannot address the substantive claims presented by Complainant in his untimely filed Application for Review.
ORDER
Application for Review is denied due to it being untimely filed.
Judicial review of this Order may be had in the manner provided in Sections 138.432 and 536.100 to 536.140, RSMo within thirty days of the mailing date set forth in the Certificate of Service for this Order.
If judicial review of this decision is made, any protested taxes presently in an escrow account in accordance with this appeal shall be held pending the final decision of the courts unless disbursed pursuant to Section 139.031.8, RSMo.
If no judicial review is made within thirty days, this decision and order is deemed final and the Collector of St. Louis County, as well as the collectors of all affected political
subdivisions therein, shall disburse the protested taxes presently in an escrow account in accord with the decision on the underlying assessment in this appeal.
SO ORDERED September 1, 2009.
STATE TAX COMMISSION OF MISSOURI
Bruce E. Davis, Chairman
Jennifer Tidwell, Commissioner
Charles Nordwald, Commissioner
DECISION AND ORDER
HOLDING
Decision of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.Assessed value for the subject personal property for tax year 2008 is set at $850.00, true value in money of $2,550.Complainant appeared pro se.Respondent appeared by Associate County Counselor Paula J. Lemerman.Case heard and decided by Senior Hearing Officer W. B. Tichenor.
ISSUE
The Commission takes this appeal to determine the true value in money for the subject personal property (motor vehicle) on January 1, 2008.
SUMMARY
Complainant appeals, on the ground of overvaluation, discrimination, misclassification and other, the decision of the St. Louis County Board of Equalization, which sustained the valuation of the subject property.The Assessor assessed the property at $850, appraised value of $2,550, as personal property.Complainant proposed an appraised value of $375, assessed value of $125.A hearing was conducted on June 18, 2009, at the St. LouisCountyGovernmentCenter,Clayton,Missouri.
The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.
FINDINGS OF FACT
1.Jurisdiction.Jurisdiction over this appeal is proper.Complainant timely appealed to the State Tax Commission from the decision of the St. Louis County Board of Equalization.
2.Subject Property.The property that is the subject of this appeal consists of three motor vehicles.The three motor vehicles are: (1) 1986 Mercury Sable; (2) 1990 Eagle Premier;[3] and (3) 2006 Honda 250 CC Nighthawk Motorcycle.The Assessor’s 2008 assessed values for the vehicles are: (1) Sable – $100, appraised value of $300; (2) Eagle – $120, appraised value of $360; and (3) Honda – $630, appraised value of $1,890.[4]The subject property is identified by Assessor’s Account Number 432094504.[5]
3.Complainant’s Evidence.Complainant testified in his own behalf.
a.Mercury Sable.Mr. Dienoff stated his opinion of value as of January 1, 2008, for the Mercury Sable was $75 due to the age of the vehicle, model no longer made and difficulty in finding parts.No substantiation was provided for the owner’s opinion or the claims made as the basis for Complainant’s opinion of value.
b.Eagle Premier.Mr. Dienoff stated his opinion of value as of January 1, 2008, for the Eagle Premier was $100 due to its age, no longer made, American Motors no longer in business and transmission issues.Mr. Dienoff also testified the date of manufacture was 1989 so he concluded the car should be valued as a 1989 model.No substantiation was provided for the owner’s opinion or the claims made as the basis for Complainant’s opinion of value.
c.Honda Motorcycle.Mr. Dienoff stated his opinion of value as of
January 1, 2008, for the Honda Motorcycle was $200.The opinion of value was based on the owner’s claim that the vehicle had been blown over in a windstorm in December, 2007, the transmission cases had been cracked, it was not drivable on January 1, 2008, cost to repair was greater than the motorcycle value.No substantiation was provided for the owner’s opinion or the claims made as the basis for Complainant’s opinion of value.
4.Complainant’s Exhibits.Complainant offered into evidence the following exhibits:
|
EXHIBIT |
DESCRIPTION |
|
A |
Copy of email dated 6/18/09 – 12:25 AM from Complainant to Hearing Officer |
|
B |
Copy of 2008 Personal Property Tax Receipt Account No. 432084504 |
|
C |
Wikipedia Article, dated 6/18/09 – American Motors. |
Exhibits A and B were received into evidence.Objection was made to Exhibit C on the grounds of Hearsay and Relevance.Objection was sustained.Exhibit C is maintained in the case file, but is not part of the record for purposes of determining value of Complainant’s motor vehicles.
Exhibit A has no probative value since it is simply a restatement of what Complainant testified to at hearing, without any supporting documentation to the various claims made about the three motor vehicles.
Exhibit B is probative as to the assessed values of the three motor vehicles.
Exhibit C is non-relevant hearsay.It presents no evidence from which a determination can be made of the fair market value of any of the three motor vehicles under appeal.Therefore, it has no relevance for this appeal.
5.Complainant Failed To Meet Burden of Proof.Complainant’s evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money for each of the motor vehicles as of January 1, 2008.
6.Discrimination Claim Dismissed.Complainant presented no testimony or exhibits addressing any intentional plan by the Assessor or the Board of Equalization to assess the subject motor vehicles at a value greater than one-third of their fair market values.Complainant presented no testimony or exhibits to establish that his personal property is being assessed at a ratio greater than the average assessment ratio for personal property in St. Louis County for tax year 2008.No evidence having been presented on the claim of discrimination, the claim is dismissed.
7.Misclassification Claim Dismissed.Complainant presented no testimony or exhibits to establish that the three motor vehicles were improperly classified as personal property to be assessed at a ratio of one third of appraised value, or that they should have been otherwise classified.No evidence having been presented on the claim of misclassification, the claim is dismissed.
8.Other Claim Dismissed. The ground for appeal of Other was marked on the Complaint for Review of assessment.No explanation was provided as to any other ground for the appeal of the assessment.No evidence was presented on any other ground to warrant a changed in the assessment made by the Assessor and sustained by the Board, the claim is dismissed.
9.Respondent’s Evidence.Respondent presented the testimony of Linda Edison, Property Tax Analyst Supervisor for the St. Louis County Assessor.Ms. Edison testified to the process for valuation of Complainant’s vehicles.The following Exhibits were received into evidence:
|
EXHIBIT |
DESCRIPTION |
|
1 |
Dept. of Revenue Registration for Complainant’s 1990 Eagle (page 1); CARFAX VIN data on 1990 Eagle (page 2); NADA Vehicle Trade Value Summary for 1990 Eagle (page 3; NADA Model Year Indicator Chart (page 4). |
|
2 |
NADA – September – December 2007 – Deduct for Repairs for 2006 Honda |
Mercury Valuation.The valuation of the Mercury was at the base of $300 resulting in an assessed value of $100.This is the lowest value that is placed on a vehicle under the Assessor’s system for assessment of motor vehicles, since the tax levy is for each $100 of assessed valuation.[6]
Eagle Valuation.The Eagle was valued as a 1990 model at a value $190 less than the October 2007, NADA Central Used Car Guide for a Base Clean Trade-In Value.The VIN for the Eagle is 2E3CB66U5LH700465.[7]The tenth digit of the VIN represents the vehicle model year.The digit L stands for the Model Year 1990.[8] The automobile is a 1990 model as shown by the Department of Revenue registration and the VIN.[9]
Honda Nighthawk.The motorcycle was valued as a Rebel model, a lower valued model than the Nighthawk, at Rough Trade-In Wholesale, instead of average retail.[10]
10.Objections to Respondent’s Exhibits.
Exhibit 1 – Page 1:Complainant objected to page 1 of Exhibit 1 on the ground that it was not a certified copy of the Department of Revenue’s record.Objection was overruled.The computer printout showing the Make, Year and VIN of Complainant’s car is a business record of the Department of Revenue, but also of the Assessor’s Office of St. Louis County as part of this appeal.It is a document that can be used and relied on by assessors throughout the state in assessing automobiles.It is so recognized by the State Tax Commission.Lack of personal knowledge on the part of the witness as to the making of the record did not affect admissibility.[11]The document constitutes a public record and report and is therefore admissible.[12]The testimony of Ms. Edison on her obtaining the document laid sufficient foundation for its admissibility.
Exhibit 2:Complainant objected to Exhibit 2 on the ground that it was not identified and not a certified copy.Objection was overruled. The witness identified the document from which the exhibit was taken.The Hearing Officer recognized the exhibit as being part of an NADA publication.NADA publications are utilized by assessors in the state for valuing motor vehicles.By statute such publications are the recommended guide for information to determine value of motor vehicles described in such publications.[13]
CONCLUSIONS OF LAW AND DECISION
Jurisdiction
The Commission has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious.The hearing officer shall issue a decision and order affirming, modifying or reversing the determination of the board of equalization, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious.[14]
Presumptions In Appeals
There is a presumption of validity, good faith and correctness of assessment by the CountyBoardof Equalization.[15]The presumption of correct assessment is rebutted when the taxpayer presents substantial and persuasive evidence to establish that the Board’s valuation is erroneous and what the fair market value should have been placed on the property.[16]The failure of Mr. Dienoff to present any evidence in support of and to substantiate the claims made in his oral testimony results in a failure to have rebutted the presumption of correct assessment by the Board.
Standard for Valuation
Section 137.115, RSMo, requires that property be assessed based upon its true value in money which is defined as the price a property would bring when offered for sale by one willing or desirous to sell and bought by one who is willing or desirous to purchase but who is not compelled to do so.[17]True value in money is defined in terms of value in exchange and not value in use.[18]It is the fair market value of the subject property on the valuation date.[19]Market value is the most probable price in terms of money which a property should bring in competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeable and assuming the price is not affected by undue stimulus.
Implicit in this definition are the consummation of a sale as of a specific date and the passing of title from seller to buyer under conditions whereby:
1.Buyer and seller are typically motivated.
2.Both parties are well informed and well advised, and both acting in what they consider their own best interests.
3.A reasonable time is allowed for exposure in the open market.
4.Payment is made in cash or its equivalent.
5.Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.
6.The price represents a normal consideration for the property sold unaffected by special financing amounts and/or terms, services, fees, costs, or credits incurred in the transaction.[20]
Complainant’s Burden of Proof
In order to prevail, Complainant must present an opinion of market value and substantial and persuasive evidence that the proposed value is indicative of the market value of the subject property on January 1, 2007.[21]There is no presumption that the taxpayer’s opinion is correct. The taxpayer in a Commission appeal still bears the burden of proof.The taxpayer is the moving party seeking affirmative relief.Therefore, the Complainant bears the burden of proving the vital elements of the case, i.e., the assessment was “unlawful, unfair, improper, arbitrary or capricious.”[22]
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[23]Persuasive evidence is that evidence which has sufficient weight and probative value to convince the trier of fact.The persuasiveness of evidence does not depend on the quantity or amount thereof but on its effect in inducing belief.[24]
The owner of property is generally held competent to testify to its reasonable market value.[25]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[26]In this instance, Complainant mentioned certain factors he deemed to support his opinion of value.These included age of the two automobiles, the fact the two car models are no longer manufactured, difficulty of finding parts for the cars, a transmission issue with the Eagle and cracked transmission cases on the motorcycle.However, none of these factors provide evidence of what a willing buyer and seller would have agreed to as the purchase price for any of the vehicles on January 1, 2008.Furthermore, there was no substantiating evidence relative to any of the allegations concerning the condition of the motor vehicles on January 1, 2008.
Where the basis for claims such as those made by Mr. Dienoff are not supported by substantiating proof the reliability of the testimony is brought into question.Since there was no support for the claims asserted by the owner, the testimony is to be rejected.[27]No documentation was provided as to the transmission issues for the Eagle or for the motorcycle.A taxpayer does not meet his burden if evidence on any essential element of his case leaves the Commission “in the nebulous twilight of speculation, conjecture and surmise.”[28]The failure of Complainant to present evidence directing addressing the issue of the fair market value of the motor vehicles and supporting proof of the factors claimed leaves the Hearing Officer with nothing but speculation, conjecture and surmise as to the validity of the owner’s claims.No evidence was provided to establish that Mr. Dienoff has any particular expertise to qualify him to give an opinion of value on the fair market value of an automobile or a motorcycle.Accordingly no probative weight is given to the opinions of value stated by Mr. Dienoff.
Model Year for Eagle Premier
Complainant raised a frivolous claim that the 1990 Eagle Premier should be assessed as a 1989 model because of his assertion it was manufactured in 1989.Since Mr. Dienoff raised this issue, it was his burden and his alone to establish that date of manufacture of a motor vehicle establishes the model year.He presented no evidence on this point.The substance of his claim is that there is a tag on the inside of the door which gives a manufacture date in 1989.Assuming without finding, that to be the case, since Mr. Dienoff neglected to offer into evidence a photo of the claimed tag, it does not follow that the motor vehicle is a 1989 model Eagle Premier.
The owner could have submitted the automobile title to establish that it was a 1989 model, if in fact it was.However, he failed to do so.In short, Mr. Dienoff provided no basis upon which the Hearing Officer can find that the motor vehicle is anything other than a 1990 model.Nor did the taxpayer provide the Hearing Officer with any statute or regulation that Assessor’s are to assess motor vehicles based on year of manufacture, instead of model year.Complainant’s own Exhibit B states that the Eagle Premier is a 1990 model, not a 1989 model.
The recommended guide by statute for assessor in the valuation of motor vehicles is the NADA used car guide.[29]NADA provides value data based on model year, not on year of manufacture.Irrespective of the fact of model year established by Respondent’s exhibits, Complainant failed to prove his claim that the Eagle Premier was a 1989 model or that it should be valued as a 1989 model.
Summary and Conclusion
When a taxpayer elects to rely upon his unsubstantiated opinion of value he fails to meet the required burden of proof.An owner’s assertion establishes nothing.Absent supporting documentation, an opinion of value by an owner establishes no material fact as to the true value in money of property being valued.
Complainant provided no evidence to establish the fair market value of any of the motor vehicles that are the subject of this appeal.Accordingly, the presumption of correct assessment by the Board was not rebutted and it stands to establish value of Complainant’s personal property.
ORDER
The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization for St. Louis County for the subject tax day is AFFIRMED.
The assessed value for the subject property for tax year 2008 is set at $850.00.
A party may file with the Commission an application for review of this decision within thirty days of the mailing date set forth in the Certificate of Service for this Decision.The application shall contain specific facts or law as grounds upon which it is claimed the decision is erroneous.Said application must be in writing addressed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, MO65102-0146, and a copy of said application must be sent to each person at the address listed below in the certificate of service.
Failure to state specific facts or law upon which the appeal is based will result in summary denial. [30]
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 July 15, 2009.
STATE TAX COMMISSION OFMISSOURI
W. B. Tichenor, Senior Hearing Officer
[4] Exhibit B.The subject personal property has an assessment ratio of one-third. Section 137.115.1 RSMo.Therefore, appraised values are determined by taking the assessed value times three.
[11] Sections 490.680 & 536.070 (10) RSMo; Rule 803 (a) (5) Mo Evidence Restated; Courtroom Handbook on Missouri Evidence – 2008, William A. Schroeder, Principle 803(6), pp. 520 et seq.
[12] Rule 803 (a) (7), Mo. Evidence Restated; Courtroom Handbook on Missouri Evidence – 2008, William A. Schroeder, Principle 803(8), pp. 534 et seq.
[13] Section 137.115.9 RSMo.The assessor of each county and each city not within a county shall use the trade-in value published in the October issue of the National Automobile Dealers’ Association Official Used Car Guide, or its successor publication, as the recommended guide of information for determining the true value of motor vehicles described in such publication. In the absence of a listing for a particular motor vehicle in such publication, the assessor shall use such information or publications which in the assessor’s judgment will fairly estimate the true value in money of the motor vehicle.
[15] Hermel, Inc. v. STC, 564 S.W.2d 888, 895 (Mo. banc 1978); Chicago, Burlington & Quincy Railroad Co. v. STC, 436 S.W.2d 650, 656 (Mo. 1968); May Department Stores Co. v. STC, 308 S.W.2d 748, 759 (Mo. 1958).
[16] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).
[17] St. Joe Minerals Corp. v. State Tax Commission, 854 S.W.2d 526, 529 (Mo. App. E.D. 1993); Missouri Baptist Children’s Home v. State Tax Commission, 867 S.W.2d 510, 512 (Mo. banc 1993).
[18] Daly v. P. D. George Company, et al, 77 SW3d 645, 649 (Mo.App E.D. 2002), citing, Equitable Life Assurance Society v. STC, 852 SW2d 376, 380 (Mo.App. 1993); citing, Stephen & Stephen Properties, Inc. v. STC, 499 S.W.2d 798, 801-803 (Mo. 1973).
[20] Real Estate Appraisal Terminology, Society of Real Estate Appraisers, Revised Edition, 1984; See also, Real Estate Valuation in Litigation, J. D. Eaton, M.A.I., American Institute of Real Estate Appraisers, 1982, pp. 4-5; Property Appraisal and Assessment Administration, International Association of Assessing Officers, 1990, pp. 79-80; Uniform Standards of Professional Appraisal Practice, Glossary.
[22] See, Westwood Partnership v. Gogarty, 103 S.W.3d 152 (Mo. App. E.D. 2003); Daly v. P. D. George Co., 77 S.W.3d 645 (Mo. App. E.D. 2002); Reeves v. Snider, 115 S.W.3d 375 (Mo. App. S.D. 2003).Industrial Development Authority of Kansas City v. State Tax Commission of Missouri, 804 S.W.2d 387, 392 (Mo. App. 1991).
[25] Rigali v. Kensington Place Homeowners’ Ass’n, 103 S.W.3d 839, 846 (Mo. App. E.D. 2003); Boten v. Brecklein, 452 S.W.2d 86, 95 (Sup. 1970).
[26] Cohen v. Bushmeyer, 251 S.W.3d 345, (Mo. App. E.D., March 25, 2008); Carmel Energy, Inc. v. Fritter, 827 S.W.2d 780, 783 (Mo. App. W.D. 1992); State, ex rel. Missouri Hwy & Transp. Com’n v. Pracht, 801 S.W.2d 90, 94 (Mo. App. E.D. 1990); Shelby County R-4 School District v. Hermann, 392 S.W.2d 609, 613 (Sup. 1965).
[29] Section 137.115.9, RSMo – The assessor of each county and each city not within a county shall use the trade-in value published in the October issue of the National Automobile Dealers’ Association Official Used Car Guide, or its successor publication, as the recommended guide of information for determining the true value of motor vehicles described in such publication.