Asbury Automotive St. Louis LLC v. Jake Zimmerman, Assessor St. Louis County

State Tax Commission of Missouri

 

ASBURY AUTOMOTIVE ST. LOUIS, LLC,	)
	)
Complainant(s),	)
	)
v.	)	Appeal No. 15-14793, 15-14794, 15-14795
	)	and 15-14797
JAKE ZIMMERMAN, ASSESSOR,	)
ST. LOUIS CO., MISSOURI,	)
	)
Respondent.	)

 

DECISION AND ORDER

Decisions of the St. Louis County Board of Equalization (BOE) are SET ASIDE.

Asbury Automotive St. Louis, LLC (Complainant) presented substantial and persuasive evidence to rebut the presumption of correct assessment by the BOE regarding valuations.

Commercial Assessed Values for the subject properties for tax years 2015 and 2016 is set at $342,400.

Complainant is represented by attorney William Clendenin.

Jake Zimmerman, Assessor of St. Louis County (Respondent) is represented by attorney Ed Corrigan

Case heard and decided on the record by Senior Hearing Officer John Treu (Hearing Officer).

ISSUES

Complainant appeals, on the grounds of overvaluation, the decisions of the BOE regarding four (4) parcels. The State Tax Commission (STC) takes this appeal to determine the assessed values in money for the subject properties on January 1, 2015.  The assessment as of January 1 of the odd numbered year remains the assessment as of January 1 of the following even numbered year unless there is new construction and improvement to the properties.  Section 137.115.1 RSMo.

EVIDENCE

            Complainant filed the following exhibits, which were admitted into the record.

EXHIBIT	DESCRIPTION
A	Appraisal Report
B	Written Direct Testimony of John C. Hottle, Sr.

 

Respondent filed no exhibits, written direct testimony or objections.

The parties were required to request an evidentiary hearing by February 8, 2017 or the appeals would be taken under advisement on the record and a Decision entered.

FINDINGS OF FACT

1. Jurisdiction. Jurisdiction over this appeal is proper.  Complainant timely appealed to the STC from the decision of the BOE.  The appeal was submitted on the record by agreement of the parties.
2. Identification of Subject Property. The subject properties are located at 630 Decker Lane (Appeal 15-14797/Parcel 17O331089), 638 Decker Lane (Appeal 15-14793/Parcel 17O330121), 640 Decker Lane (Appeal 15-14794/Parcel 17O330143) and 648 Decker Lane (Appeal 15-14795/Parcel 17O330198) in Creve Coeur, St. Louis County, MO.  (Exhibit A & B)
3. Description of Subject Property.  The subject properties consist of four (4) parcels of land improved with a parking lot with average visibility.  The properties consist of a total of 78,968 square feet with no buildings on them.  The land is generally level, above street grade, and rectangular.  (Exhibits A & B).
4. Assessment and Board of Equalization Values. The Assessor and Board of Equalization (BOE) determined the true market value (TMV) of properties to be the following:

Appeal Number & Parcel Number	Assessor TMV/ Assessed	BOE TMV/ Assessed
15-14793 & 17O330121	$362,200/ $115,900	$362,200/ $115,900
15-14794 & 17O330143	$352,000/ $112,640	$352,000/ $112,640
15-14795 & 17O330198	$296,000/ $94,720	$296,000/ $94,720
15-14797 & 17O331089	$354,800/ $113,530	$354,800/ $113,530
Total	$1,365,000/ $436,790	$1,365,000/ $436,790

(Complaints for Review of Assessment).

5. No Evidence of New Construction & Improvement. There was no evidence of new construction and improvement from January 1, 2015, to January 1, 2016; therefore, the assessed value for 2015 remains the assessed value for 2016.  Section 137.115.1, RSMo.
6. Presumption of Correct Assessment Rebutted. Complainant’s evidence was substantial and persuasive to rebut the presumption of correct assessments by the BOE and establish the true value in money of the subject properties as of January 1, 2015.   See, Presumption In Appeal, infra.
7. Case Submitted On Record. The parties were Ordered to request a face-to-face Evidentiary Hearing, on or before February 8, 2017, or the appeals would be submitted on the record.  Respondent did not respond.  Complainant responded that it was agreeable to submission of these appeals on the record.

 

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

Issuance of Decision Absent Evidentiary Hearing

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

Basis of Assessment

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

Presumption In Appeal

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

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 properties on January 1, 2015.  Hermel, supra.   There is no presumption that the taxpayer’s opinion is correct. The taxpayer in a Commission appeal still bears the burden of proof.  The taxpayer is the moving party seeking affirmative relief.   Therefore, the Complainant bears the burden of proving the vital elements of the case, i.e., the assessment was “unlawful, unfair, improper, arbitrary or capricious.”  See, Westwood Partnership v. Gogarty, 103 S.W.3d 152 (Mo. App. E.D. 2003); Daly v. P. D. George Co., 77 S.W.3d 645 (Mo. App. E.D. 2002); Reeves v. Snider, 115 S.W.3d 375 (Mo. App. S.D. 2003); Industrial Development Authority of Kansas City v. State Tax Commission of Missouri, 804 S.W.2d 387, 392 (Mo. App. 1991).

Standard for Valuation

Section 137.115, RSMo, requires that property be assessed based upon its true value in money which is defined as the price a property would bring when offered for sale by one willing or desirous to sell and bought by one who is willing or desirous to purchase but who is not compelled to do so.  St. Joe Minerals Corp. v. State Tax Commission, 854 S.W.2d 526, 529 (Mo. App. E.D. 1993); Missouri Baptist Children’s Home v. State Tax Commission, 867 S.W.2d 510, 512 (Mo. banc 1993).    True value in money is defined in terms of value in exchange and not value in use.  Daly v. P. D. George Company, et al, 77 S.W.3d 645, 649 (Mo. App E.D. 2002), (internal citation omitted).   It is the fair market value of the subject property on the valuation date. Hermel, supra.  Market value is the most probable price in terms of money which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeable and assuming the price is not affected by undue stimulus.

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

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.  Real Estate Appraisal Terminology, Society of Real Estate  Appraisers, Revised Edition, 1984; See also, Real Estate Valuation in Litigation,  J. D. Eaton, M.A.I., American Institute of Real Estate Appraisers, 1982, pp. 4-5; Property Appraisal and Assessment Administration, International Association of  Assessing Officers, 1990, pp. 79-80; Uniform Standards of Professional Appraisal Practice, Glossary.

 

Weight to be Given Evidence

            The Hearing Officer is not bound by any single formula, rule or method in determining true value in money, but is free to consider all pertinent facts and estimates and give them such weight as reasonably they may be deemed entitled.  The relative weight to be accorded any relevant factor in a particular case is for the Hearing Officer to decide.  St. Louis County v. Security Bonhomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977); St. Louis County v. STC, 515 S.W.2d 446, 450 (Mo. 1974); Chicago, Burlington & Quincy Railroad Company v. STC, 436 S.W.2d 650 (Mo. 1968).

The Hearing Officer as the trier of fact may consider the testimony of an expert witness and give it as much weight and credit as he may deem it entitled to when viewed in connection with all other circumstances.  The Hearing Officer is not bound by the opinions of experts who testify on the issue of reasonable value, but may believe all or none of the expert’s testimony and accept it in part or reject it in part.  St. Louis County v. Boatmen’s Trust Co., 857 S.W.2d 453, 457 (Mo. App. E.D. 1993); Vincent by Vincent v. Johnson, 833 S.W.2d 859, 865 (Mo. 1992); Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. 1991); Curnow v. Sloan, 625 S.W.2d 605, 607 (Mo. banc 1981).

Methods of Valuation

Proper methods of valuation and assessment of property are delegated to the Commission.  It is within the purview of the Hearing Officer to determine the method of valuation to be adopted in a given case.   See, Nance v. STC, 18 S.W.3d 611, at 615 (Mo. App. W.D. 2000); Hermel, supra;  Xerox Corp. v. STC, 529 S.W.2d 413 (Mo. banc 1975).  Missouri courts have approved the comparable sales or market approach, the cost approach and the income approach as recognized methods of arriving at fair market value.   St. Joe Minerals Corp. v. STC, 854 S.W.2d 526, 529 (App. E.D. 1993); Aspenhof Corp. v. STC, 789 S.W.2d 867, 869 (App. E.D. 1990).

Opinion Testimony by Experts

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

Complainant Proves Value

Complainant presented substantial and persuasive evidence to establish a fair market value, as of January 1, 2015, for the subject properties.  The evidence included an appraisal report and testimony by a Missouri State Certified General Appraiser.  Complainant’s expert developed an opinion of value relying upon the sales price per square foot of five comparable properties.  The properties sold from September 2012 through January 2015 and were located near the subject properties.  The adjusted price per square foot of the five comparable properties ranged from $11.06 to $15.73.  The appraiser determined a value of $13.50 per square foot should be utilized for the sales comparison approach.  Adjustments were made by the appraiser to the comparables for location, land size, accessibility, visibility and whether the comparables were corner or interior lots of land.  The appraiser ultimately opined a fair market value (true market value) of $1,070,000

 ORDER

The assessed valuation for the subject property as determined by the BOE for St. Louis County for the subject tax day is SET ASIDE.  True Market Values and Assessed Values for the subject properties for tax years 2015 and 2016 are set as follows:

Appeal Number & Parcel Number	True Market Value	Commercial Assessed Value
15-14793 & 17O330121	$283,550	$90,740
15-14794 & 17O330143	$276,060	$88,340
15-14795 & 17O330198	$232,190	$74,300
15-14797 & 17O331089	$278,200	$89,020

 

Application for Review

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

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

Disputed Taxes

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

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

SO ORDERED this 14^th day of March, 2017.

STATE TAX COMMISSION OF MISSOURI

 

John Treu

Senior Hearing Officer

 

Certificate of Service

I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 14th day of March, 2017, to: Complainants(s) counsel and/or Complainant, the County Assessor and/or Counsel for Respondent and County Collector.

 

Jacklyn Wood

Legal Coordinator