State Tax Commission of Missouri
AUSTIN MARKS,)
)
Complainant,)
)
v.)Appeal No.11-84000
)
DAN WARD, ASSESSOR,)
ST. FRANCOIS COUNTY, MISSOURI,)
)
Respondent.)
ORDER
AFFIRMING HEARING OFFICER DECISION
UPON APPLICATION FOR REVIEW
On November 1, 2011, Hearing Officer Maureen Monaghan entered her Decision and Order (Decision) affirming the assessment by the St. Francois County Board of Equalization.
Complainant filed his Application for Review of the Decision.[1]On January 17, 2012, Complainant requested that in light of the Respondent’s not filing a Response that Complainant prevail on his issues raised.
When an Application for Review is filed, the opposing party is given the opportunity to file a Response, but is not required to do so.Failure to file a Response to an Application for Review does not result in a default judgment in favor of the party filing the Application for Review.The Application for Review must be considered and a decision rendered based upon the merits of the claims raised.
CONCLUSIONS OF LAW
Standard Upon Review
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.[2]
The Hearing Officer as the trier of fact may consider the testimony of a witness and give it as much weight and credit as she may deem it entitled to when viewed in connection with all other circumstances.The Hearing Officer is not bound by the opinions of experts or owners who testify on the issue of reasonable value, but may believe all or none of the expert’s or owner’s testimony and accept it in part or reject it in part.[3]
The Commission will not lightly interfere with the Hearing Officer’s Decision and substitute its judgment on the credibility of witnesses and weight to be given the evidence for that of the Hearing Officer as the trier of fact.[4]
DECISION
Complainant presents the following grounds for his application for review:
1. The Hearing Officer erred by failing to address the lawfulness of the St. Francois County Tax Assessor’s increased valuation on Complainant’s property.
2. The Hearing Officer’s decision to affirm the St. Francois County Assessor’s valuation increase based on the repair/replacement of a damaged house roof is arbitrary and capricious and did not take into account the totality of the facts in this appeal.
3. The Hearing Officer’s Decision and Order affirming the St. Francois County Assessor’s increased valuation on Complainant’s property lacks fairness, county wide uniformity and violates the Complainant’s fourteenth amendment protection right to equal protection.
The Commission will address each of Complainant’s grounds.
Lawfulness of Increase
The Hearing Officer did not err by not addressing Complainant’s claim of an “unlawful increase.”Notwithstanding the various lines of argument made by Complainant this appeal is a case of alleged overvaluation.The issue is quite simple – what was the true value in money (fair market value) of the property under appeal on January 1, 2011.As properly put forth in the Decision there is a presumption of correct assessment by the Board of Equalization.[5]The Hearing Officer concluded that Complainant failed to present substantial and persuasive evidence to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2011.[6]There was no need for the Hearing Officer to address whether the increase in valuation from the previous assessment cycle was lawful, since the value set by the Board had not been proven to have been in error, the means or method for increasing the value from the 2009 value was irrelevant.
Affirming of Assessor’s Original Valuation
Complainant’s argument is not well taken.Irrespective of how the Assessor had addressed the matter of a new roof being put on the subject home in 2010.[7]Complainant failed to carry his burden of proof and establish that the true value in money as of January 1, 2011 was
$21,620.Accordingly, the Hearing Officer properly affirmed the Board’s finding of sustaining the Assessor’s value of $22,270.
Equal Protection
Complainant’s Fourteenth Amendment equal protection argument is void of any basis upon which the Decision of the Hearing Officer could be set aside.Complainant’s line of argument misses the point in this appeal.As previously addressed, the issue is not how or why an increase to the value of the property under appeal was made from the 2009 to the 2011 assessment.The issue is not whether each and every other residential property that may have had storm damage during 2010 and was then repaired prior to January 1, 2011, was given an increase in value for assessment purposes because of the repair.The issue is, as of January 1, 2011, with a new roof in place on Complainant’s home what would a willing buyer and seller have agreed to as the purchase/sale price of the property.
The evidence failed to establish an intentional plan by the Assessor and/or the Board of Equalization to assess Complainant’s property at a ratio greater than 19% of its true value in money.There was no evidence to establish that the average residential assessment ratio for residential property in St. Francois County was less than 19%.Therefore, Complainant’s property was assessed at the statutory rate of 19% of its true value in money.No denial of equal protection was established by the evidence in this record.
Summary and Conclusion
A review of the record in the present appeal provides support for the determinations made by the Hearing Officer.A reasonable mind could have conscientiously reached the same result based on a review of the entire record. The Commission finds no basis to support a determination that the Hearing Officer acted in an arbitrary or capricious manner or abused her discretion as the trier of fact and concluder of law in this appeal.[8]
The Hearing Officer did not err in her determination that Complainant failed to meet his burden of proof and accordingly, the presumption of the Board’s correct assessment was not rebutted.
ORDER
The Commission upon review of the record and Decision in this appeal, finds no grounds upon which the Decision of the Hearing Officer should be reversed or modified.Accordingly, the Decision is affirmed.The Decision and Order of the hearing officer, including the findings of fact and conclusions of law therein, is incorporated by reference, as if set out in full, in this final decision of the Commission.
Judicial Review
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.
Protested Taxes
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 ofSt. Francois 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 February 7, 2012.
STATE TAX COMMISSION OF MISSOURI
Bruce E. Davis, Chairman
Randy B. Holman, Commissioner
DECISION AND ORDER
HOLDING
Decision of the St. Francois County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.True value in money for 2011 is set at $22,270, assessed value of $4230.Complainant appeared pro se.Respondent appeared in person and by Assistant Prosecuting Attorney, Patrick King.Case heard and decided by Hearing Officer Maureen Monaghan.
ISSUE
The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2011.
SUMMARY
Complainant appeals, on the ground of overvaluation, the decision of the St. Francois County Board of Equalization, which sustained the valuation of the subject property.The Assessor determined an appraised value of $22,270, assessed value of $4230, as residential property.Complainant proposed a value of $21,620.A hearing was conducted on October 6, 2011, at the St. Francois County Courthouse,Farmington,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. Francois County Board of Equalization.
2.Complainant’s Evidence.Complainant testified in his own behalf.He testified his opinion of the true value in money for his property as of January 1, 2011, was $21,620.The opinion was based upon the 2009-10 valuation of the property by the Assessor; the Complainant testified that the value of his property did not increase and therefore the value should not have increased from the 2009 assessment cycle. Complainant testified that his roof was damaged in November 2010 and replaced in March 2011.The bill for the metal roof is not dated.The bill does not include the cost of labor. Complainant offered the following exhibits into evidence:
|
EXHIBIT |
DESCRIPTION |
DISPOSITION |
|
1 |
BOE Decision |
Received |
|
2 |
Increase Notice |
Received |
|
3 |
Estimate for Materials for Shingle Roof |
Received |
|
4 |
Bill for Metal Roof |
Received |
3.Respondent’s Evidence.Assessor Ward testified in his own behalf.Exhibit 1 was received into evidence.Exhibit 1 is the Property Record Card for the subject property.The property record card includes a photo of the subject property with the new roof.The record card shows a physical inspection of the property on October 12, 2010, and the photo is also dated in October 2010.
4.Subject Property.The subject property is located at 3505 Conway Road, Farmington, Missouri.The property is identified by map parcel number 9-20-4-12-1-13.The property consists of a one acre home site.The home site is improved by a single-family house.The house has a new metal roof installed in 2010.
5.Complainant Failed To Prove Value.Complainant failed to present substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2011.
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.[9]
Presumption In Appeals
There is a presumption of validity, good faith and correctness of assessment by the CountyBoardof Equalization.[10] 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.[11]When as in this case, Complainant fails to present any relevant evidence to establish the fair market (true value in money) value of the property being appealed, the Board presumption stands.
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.[12]It is the fair market value of the subject property on the valuation date.[13]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.[14]
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.[15]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.[16]Complainant’s opinion of value was not derived from any recognized methodology for the appraisal of real estate.
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, 20011.[17]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.”[18]
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[19]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.[20]
Owner’s Opinion of Value
The owner of property is generally held competent to testify to its reasonable market value.[21]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[22]In the present appeal, Complainant’s opinion of value was based upon the assessment for the 2009-10 assessment cycle.He believed the value should not change due to existing economic conditions.There are two fatal flaws to the taxpayer’s opinion of value.First, it assumes that the 2009-10 valuation of the property was at true value in money for January 1, 2009. Second, it assumes that current economic conditions for a property like the subject have resulted in no increase in value.
No market data was presented that would establish that the value of the property, as of January 1, 2009, was $21,620.Furthermore, no market data was introduced to establish that the subject property did not increase in value from 2009 to 2011 or data regarding the replacement of the roof having no impact on the market value. In short, the basis for the owner’s opinion of value was mere speculation, simply conjecture.Speculation and conjecture never form the proper elements or a proper foundation for an opinion of value.Absent sound and relevant market data, the owner’s opinion is not entitled to any probative weight.
Complainant failed to meet his burden of proof.
ORDER
The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization for St. Francois County for the subject tax day is AFFIRMED.
The assessed value for the subject property for tax year 2011 is set at $4230.
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.The application shall contain specific 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. [23]
The Collector of St. Francois County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending a 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 November 1, 2011.
STATE TAX COMMISSION OFMISSOURI
Maureen Monaghan
Hearing Officer
[1] Application for Review received by the Commission on November 18, 2011.Order Upon Filing of Application for Review was issued November 22, 2011 and Respondent was given until and including December 23, 2011, to file a Response.Respondent elected to not file a Response.
[2] 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).
[3] 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).
[4] Black v. Lombardi, 970 S.W.2d 378 (Mo. App. E.D. 1998); Lowe v. Lombardi, 957 S.W.2d 808 (Mo. App. W.D. 1997); Forms World, Inc. v. Labor and Industrial Relations Com’n, 935 S.W.2d 680 (Mo. App. W.D. 1996); Evangelical Retirement Homes v. STC, 669 S.W.2d 548 (Mo. 1984); Pulitzer Pub. Co. v. Labor and Indus. Relations Commission, 596 S.W.2d 413 (Mo. 1980); St. Louis County v. STC, 562 S.W.2d 334 (Mo. 1978); St. Louis County v. STC, 406 S.W.2d 644 (Mo. 1966).
[8] Hermel, Inc. v. STC, 564 S.W.2d 888 (Mo. 1978); Black v. Lombardi, 970 S.W.2d 378 (Mo. App. E.D. 1998); Holt v. Clarke, 965 S.W.2d 241 (Mo. App. W.D. 1998); Smith v. Morton, 890 S.W.2d 403 (Mo. App. E.D. 1995); Phelps v. Metropolitan St. Louis Sewer Dist., 598 S.W.2d 163 (Mo. App. E.D. 1980).
[10] 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).
[11] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).
[12] 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).
[14] 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.
[15] 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).
[16] 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); Quincy Soybean Company, Inc., v. Lowe, 773 S.W.2d 503, 504 (App. E.D. 1989), citing Del-Mar Redevelopment Corp v. Associated Garages, Inc., 726 S.W.2d 866, 869 (App. E.D. 1987); and State ex rel. State Highway Comm’n v. Southern Dev. Co., 509 S.W.2d 18, 27 (Mo. Div. 2 1974).
[18] 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).
[21] 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).
[22] 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).