Barbara Vires v. Brooks (SLCO)

 

BARBARA VIRES,)

)

Complainant,)

)

v.) Appeal Number 09-10701

)

MICHAEL BROOKS, ACTING ASSESSOR,)

ST. LOUIS COUNTY,MISSOURI,)

)

Respondent.)

 

 

DECISION AND ORDER

 

HOLDING

 

Decision of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.True value in money for the subject property for tax years 2009 and 2010 is set at $184,500, residential assessed value of $35,050.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

Complainant appeals, on the ground of overvaluation, discrimination and other[1], the decision of the St. Louis County Board of Equalization, which sustained the valuation of the subject property.The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2009.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.A hearing was conducted on October 12, 2010, at the St. Louis County Government Center, Clayton, Missouri.Transcript of hearing was received by the Commission on December 20, 2010.

2.Assessment.The Assessor appraised the property at $184,500, a residential assessment of $35,050.[2]The Board of Equalization sustained the assessment.[3]

3.Subject Property.The subject property is located at 5155 Olde Silver Place, St. Louis County, Missouri.The property is identified by locator number 29L140232.The property consists of 10,544 square foot lot improved by a two-story style, single-family residence built in 1976.The gross living area is 2,108 square feet and has a full basement.The exterior is brick and frame construction.The home has a gable style roof covered with what appears to be composition roof shingles.There is a patio, deck, porch and a two-car attached garage.The residence has a total of eight rooms, four bedrooms, two full and one half bathrooms.There is one fireplace and the basement has 1,015 square feet of unfinished area.The residence is considered to be in fair condition.The quality of materials and workmanship is average, consistent with surrounding properties.No functional obsolescence is presumed and some deferred maintenance exists, including:settlement of front porch, damaged siding, damaged downspouts, some ground erosion on east side of dwelling due to inability to establish lawn from evergreen trees on neighboring property, broken seals on two front windows and rear sliding door, some grading issues around the patio on the lower level and some erosion at rear of

property where open drainage begins. The site improvements include a concrete driveway and a well-established lawn.[4]

4.Complainant’s Evidence.Complainant testified in her own behalf.Complainant filed Exhibits A through BB.[5]Counsel for Respondent objected to a majority of exhibits.The objections were sustained.Exhibits G, H, I, J, K, L, M, S and part of F were received into evidence.All other exhibits were excluded.[6]See, Rulings on Complainant’s Exhibits, infra.

There was no evidence of new construction and improvement from January 1, 2009, to January 1, 2010, therefore the assessed value for 2009 remains the assessed value for 2010.[7]

Complainant failed to present any evidence under an accepted methodology for the appraisal of the subject property.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 as of January 1, 2009, to be $125,000, as proposed.See, Complainant Failed To Prove Value of $125,000, infra.

Complainant also called as witnesses Leslie Bradnax[8] and Michael Brooks[9].There was no substantive evidence in the testimony of either witness to support Complainant’s opinion of value, a claim of discrimination or a claim of errors in the Board Decision.

5.Complainant’s Discrimination Claim.Complainant presented no evidence to establish a claim of discrimination or inequity in assessment.[10]See, Complainant Failed To Prove Discrimination, infra.Complainant was informed in detail prior to the evidentiary hearing as to the requirements to make a claim of discrimination or inequity in assessment.[11]

6.Complainant’s Other Claim.The Complaint for Review of Assessment gave as a ground of appeal – Other.The Complaint asserted that the BOE Decision was “full of errors.”Complainant was informed prior to the evidentiary hearings that the “other’ ground which she asserted did not present a claim for which relief could be granted in this proceeding.[12]Complainant provided no evidence under any recognized legal theory whereby the Commission could arbitrarily set the value propounded by the taxpayer simply because of allegations of errors in the Board Decision.See, Complainant’s Other Claim, infra.

7.Respondent’s Evidence.Respondent presented the appraisal[13] and testimony of David F. Godar, Missouri State Certified Residential Real Estate Appraiser.Mr. Godar concluded a fair market value for the subject property as of January 1, 2009 of $185,000, in support of the Assessor/Board value of $184,500.

The properties relied upon by Respondent’s appraiser were comparable to the subject property for the purpose of making a determination of value of the subject property. The properties were located within .13 of a mile to 1.44 of a mile of the subject.Each sale property sold at a time relevant to the tax date of January 1, 2009, in a range from May 2007 to December 2009.The sale properties were similar to the subject in style, quality of construction, age, condition, room, bedroom and bathroom count, living area, location, site size and other amenities of comparability.The appraiser made various adjustments to the comparable properties for differences which existed between the subject and each comparable.All adjustments were appropriate to bring the comparables in line with the subject for purposes of the appraisal problem.

Exhibit 1 met the standard of clear, convincing and cogent evidence in this appeal, under the provisions of Section 137.115, RSMo to sustain the original valuation of $184,500, presumed to have been made by a computer, computer-assisted method or a computer program, which had been sustained by the Board of Equalization.See, Respondent Proves Value of $184,500, infra.

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]

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.[15]The constitutional mandate is to find the true value in money for the property under appeal. By statute real and tangible personal property is assessed at set percentages of true value in money.[16]In an overvaluation appeal, true value in money for the property being appealed must be determined based upon the evidence on the record that is probative on the issue of the fair market value.As will be addressed below, Complainant provided no competent evidence which would establish the fair market value of her property as of January 1, 2009.

Presumption In Appeals

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[17]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.[18]The taxpayer in the present appeal provided no evidence that would establish that the valuation set by the Board was in error.No evidence was tendered by Complainant which would establish the fair market value of the property as of January 1, 2009.

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.[19]True value in money is defined in terms of value in exchange and not value in use.[20]It is the fair market value of the subject property on the valuation date.[21]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.[22]

 

Respondent’s appraiser valued the property under the Standard For Valuation.[23]Complainant presented no evidence which concluded a value under this required Standard.

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.[24]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.[25] Complainant failed to base her opinion of the value of the property under appeal on any recognized appraisal method.Mr. Godar concluded his value of fair market value based on the sales comparison approach.In the valuation of owner occupied homes, the sales comparison approach is the appraisal methodology most generally relied upon.This is especially true when there is sufficient recent sales data from comparable properties, as was the case in this instance.

Complainant Fails To Prove Value of $125,000

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, 2009.[26]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.”[27]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[28]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.[29]

Owner’s Opinion Based Upon Improper Elements and Foundation

The owner of property is generally held competent to testify to its reasonable market value.[30]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[31] Mrs. Vires stated her opinion of the fair market value of her property to be $125,000.[32]The opinion of value was based on information that the taxpayer submitted as Exhibits N, P and BB, which were excluded from evidence.The opinion was not concluded from any recognized and accepted appraisal methodology for the determination of fair market value for ad valorem tax appeals before the Commission.

Exhibit N

Exhibit N is the Comparable Sales Analysis Report for Tax Year 2009 of the Assessor’s Office dated 5/15/09 on the subject property.Objection was made on the grounds of hearsay, relevance, lack of foundation.The objections were sustained.The exhibit was excluded.[33]

The document is a copy of the Assessor’s record on the assessment of the Vires’ property.However, Ms. Vires did not prepare the document and could not lay a foundation for its admission into evidence.It is classic hearsay and absent testimony from an employee of the Assessor’s office to lay the foundation for it to be received into evidence, it must be excluded.Furthermore, it has no relevance to the taxpayer’s claim of a value of only $125,000 for her home.There is nothing contained in Exhibit N which in any manner establishes that on

January 1, 2009, a willing buyer and seller would have paid $125,000 for the property at 5155.In point of fact Exhibit N rebuts that claim by Ms. Vires.Exhibit N establishes that based upon the sales data on the five properties listed as comparables a total cost valuation of $184,500 can be established.Furthermore, the Exhibit establishes a Market Value of $195,600.

Exhibit P

Exhibit P is the Assessor’s Comparable Sales on property at 5143 Olde Silver Place.This exhibit was objected to on the grounds of hearsay, relevance, lack of foundation.The objections were sustained.The exhibit was excluded.[34]As with Exhibit N, the Complainant could not lay a foundation for the admission of this document either.The Exhibit concludes a market value of this property of $220,100.There is nothing in the document that provides any support for a value on the subject of only $125,000.Complainant provided no explanation as to how the Hearing Officer, under any accepted appraisal methodology was to extrapolate that the subject should be valued at $125,000 from the valuation of a different property at $220,100.A comparison of the Assessor’s mass appraisal of one property cannot be used to establish the true value in money of another property.It is not an acceptable appraisal technique in appeals before the Commission.

Exhibit BB

Exhibit BB is a document prepared by the taxpayer in support of her opinion of value of $125,000.The Exhibit lists assessment information on properties located at 5162 Olde Silver Place, 5143 Olde Silver Place and 5123 Olde Silver Place.It then provides the Assessor’s appraised value and per square foot appraised value for the 2007-08 and the 2009-10 assessment cycles.From this Ms. Vires calculated the amount in dollars and by percentage that each of the three properties had been reduced in appraised values.She also calculated the dollar and percentage amount that her property was increased in its appraised value from 2007 to 2009.

Counsel for Respondent objected to the Exhibit on the grounds of lack of foundation, hearsay and relevance.The objections were sustained and the exhibit was excluded from evidence.Ms. Vires failed to lay a foundation to establish that this methodology is a recognized appraisal technique.It is not.The document is based upon hearsay information concerning each of the alleged comparables.The owner of the subject property cannot testify regarding comparable sales without being qualified as an expert on valuation of real estate.[35]Ms. Vires was not qualified as an expert in the appraisal of real property.It matters not that these properties appear in some other documents purporting to be comparable properties to the subject.The person offering the exhibit and relying on other hearsay documents as a basis for this exhibit must be qualified as an appraisal expert in order for it to be admissible.

The information on the other three properties has no relevance to establish what a willing buyer and seller would have paid for the Vires’ property on January 1, 2009.What the Assessor appraised each of the other properties on Olde Silver Place in 2007 and 2009 has no relevance to the market value of the subject.Finally, there is nothing on the document which establishes the asserted true value in money of $125,000 for the property under appeal. In fact, that amount is not given on the document and nothing was provided to demonstrate how one might conclude that value from the Assessor’s appraised values on the other properties.

Rulings on Complainant’s Exhibits

The remaining exhibits tendered by Complainant failed to provide any competent evidence to provide a basis for concluding fair market value of the property under appeal.

Received Exhibits

Exhibits G, H, I, J, K, L, M, & S were received into evidence.The photographs of the subject property in Exhibit F were also received into the record.However, none of these documents either individually or collectively provide any information from which the hearing officer could conclude a value of $125,000 on January 1, 2009, for the Vires property.In fact, there is nothing which provides a basis to determine any value for the subject property.

Photographs of Subject in Exhibit F and Exhibit G.Photographs showing the property under appeal and the physical characteristics of the house and land are beneficial to provide a visual understanding for the Hearing Officer.Although a picture may be worth a thousand words, a picture is not worth a single dollar in attempting to establish value, since no photograph establishes what a willing buyer and seller might conclude as a purchase price on a given date with the existence of whatever physical condition is reflected by a photograph.In sum, the photographs of the subject help the Hearing Officer to understand the items of deferred maintenance that were recognized in Mr. Godar’s appraisal.Beyond that, they are not probative to establish Complainant’s asserted value.

Exhibit H – Section 138.060, RSMo.Complainant offered the copy of the statute to bring to the Hearing Officer’s attention the follow provisions:

[In St. Louis County,] “the assessor shall have the burden to prove the assessor’svaluation does not exceed the true market value of the subject property. … theassessor shall have the burden to establish the manner in which the physicalinspection was performed and shall have the burden to prove that the physicalinspection was performed in accordance with section 137.115, RSMo. … in theevent that the assessor fails to provide sufficient evidence to establish that thephysical inspection was performed in accordance with section 137.115, RSMo,the property owner shall prevail on the appeal as a matter of law.”

 

Complainant apparently offered the exhibit in support of her Other claim in the Complaint for Review of Assessment.That is that there were errors in the Board decision or errors in the procedure before the Board.

Section 138.060.1 opens with the following language – “The county board of equalization shall, in a summary way, determine all appeals from the valuation of property made by the assessor, and shall correct and adjust the assessment accordingly.”The language cited above, to which Mrs. Vires directed the Hearing Officer’s attention,[36] relates to the summary proceedings before the Board of Equalization.It is only in the last sentence of the subsection, after the foregoing cited language appears that there is provision relative to the procedure in hearings before the Commission.[37]

Therefore, the requirement that the assessor has the burden to prove that the assessor’s valuation does not exceed the true market value of the subject property is applicable in the summary proceedings before the Board, but is not a requirement in the procedure for appeals before the Commission.Likewise, the statutory provision which addresses the performance of the physical inspection under Section 137.115, RSMo is part of the process before the board of equalization.The ending sentence which is the only place where the state tax commission is identified does not make any reference to the Section 137.115, RSMo inspection.Accordingly, the language underlined on this topic by Complainant in the exhibit is irrelevant to the appeal before the Commission.

Furthermore, assuming without finding, that the physical inspection language was applicable to this proceeding, Complainant cannot prevail on this ground for the following reasons.First, the issue was not raised in the Vires’ Complaint.Failure of the assessor to establish a Section 137.115, RSMo inspection was not given as a ground for appeal to the Commission.Second, Exhibits K and L establish prima facie the inspection by the office of the Assessor in compliance with Section 137.115, RSMo.Mrs. Vires did not assert when these exhibits were presented at the hearing that the inspection had not been performed.[38]The evidence is undisputed that the inspection was performed.

Finally, the Commission is under the constitutional and statutory prescription to assess the property under appeal based upon its value, i.e. true value in money/fair market value.The Commission cannot arbitrarily set a value that is not reflective of what a willing buyer and seller would have paid for the property on January 1, 2009.See, Basis of Assessment, infra.

Exhibit I – BOE Decision. dated 8/21/09.The Board decision provides no evidence to conclude the value of $125,000 as asserted by Mrs. Vires.In point of fact, the decision notes that the taxpayer’s opinion of value before the Board was $145,000.

Exhibit J – Copy of Section 137.115.10 & .11.These subsections relate to a physical inspection of property when the assessed valuation has increased by more than fifteen percent since the last assessment.As has previously been addressed, Complainant did not raise as a ground for appeal this issue.Furthermore, Exhibits K and L, as was also previously discussed establish that the physical inspection was performed.The exhibit provides no basis upon which the Hearing Officer can conclude a value of $125,000 for the property under appeal.

Exhibit K & L – Assessor’s Office Inspection Notice.Exhibit K is the Property Owner’s Copy of the Assessor’s Office Inspection Notice, signed by “Barbara Vires.”The inspection was performed on April 28, 2009, at 12:31 p.m.Complainant’s written note on the document states: “copy left with owner on 4-28-09 following insp.”Exhibit L is the Postcard copy of Exhibit K, addressed to Complainant at the address of the subject, postmarked 5/8/2009.It contains the printed notation:Copy of Previous Physical Inspection Notice – per St. Louis County Ordinance 501.250.

A claim of failure to conduct inspection was not asserted.That issue is not before the Commission.It appears that the point Mrs. Vires is trying to make is that there was no “notice” that a physical inspection was going to be conducted.These two exhibits establish that notice was given to the property owner that the statutorily required inspection was conducted and Mrs. Vires was present when the inspection was done.There is nothing in either exhibit that is probative on the issue of what a willing buyer and seller would have paid for the property on January 1, 2009.

Exhibit M – Assessment Systems 2009 Informal Conference Worksheet.This exhibit was prepared by Mr. Godar as part of the informal conference on May 19, 2009.[39]It notes the owner’s opinion of value to now be $130,000, and the new appraised value to be $184,500.The exhibit provides no probative evidence to support a conclusion of fair market value of $125,000 as asserted by the owner on the Complaint and at the evidentiary hearing.

Exhibit S – Unit Work Record and Adjustment Form.This document simply provides basic information relative to the subject property and notes the Adjusted Appraised Value of the property under appeal to be $184,500.The Board on 8/21/2009 denied the appeal and sustained the value of $184,500.The Exhibit provides no evidence of a value of $125,000 for Complainant’s property.

Excluded Exhibits[40]

Exhibits N, P and BB been previously discussed above.Therefore, no further explanation relative to their exclusion from evidence is required.

Exhibits A, B, C, D, Q, R, T, U, V, W, X, Y, Z and AA are all either letters written by Mrs. Vires or letters written by a St. Louis County Employee in response to a letter from the taxpayer.The various topics, assertions or claims addressed by Mrs. Vires in any of these letters are irrelevant to a determination of the fair market value of the subject property.Accordingly, the Exhibits were excluded from evidence upon objections by Counsel for Respondent.To the extent Complainant sought to utilize these documents in support of her “Other” ground, that claim will be addressed below.

Exhibit E (Procedures for Board of Equalization Hearings) was only offered according to Mrs. Vires, “To show that it’s impossible for 17,000 appeals to be heard with 10-minute time limits in the time that they held the hearings.”[41]Whether or not that is the case, the exhibit has no relevance to the issue of overvaluation or discrimination, nor the Other claim presented by Mrs. Vires.

Exhibit F (Complainant’s Appeal to BOE) has no relevance to finding the value of the subject property.What a taxpayer may or may not present on the BOE appeal form or any attachments thereto is not a matter which is before the Commission in a de novo appeal.The Hearing Officer does not have the responsibility to go back over what a taxpayer presented or claimed in the Board appeal.The Hearing Officer is charged with the responsibility of considering evidence that is probative on what the true value in money of the property under appeal for the relevant tax day and rendering a decision as to value.BOE appeal forms are irrelevant hearsay.

Conclusion

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.”[42]All that the Hearing Officer has on this record is the unsupported and unsubstantiated opinion of value of $125,000 tendered by the owner.There is no evidence which supports that opinion.It is nothing but speculation, conjecture and surmise on the part of the Complainant.The owner’s opinion of value was not based upon proper elements or a proper foundation.It has no probative value in the appeal.

Complainant Fails To Prove Discrimination

In order to obtain a reduction in assessed value based upon discrimination or a lack of valuation consistency, the Complainant must (1) prove the true value in money of their property on January 1, 2009; and (2) show an intentional plan of discrimination by the assessing officials resulting in an assessment of that property at a greater percentage of value than other property, generally, within the same class within the same taxing jurisdiction.[43]Evidence of value and assessments of a few properties does not prove discrimination.Substantial evidence must show that all other property in the same class, generally, is actually undervalued.[44]The difference in the assessment ratio of the subject property the average assessment ratio in the subject county must be shown to be grossly excessive.[45]No other methodology is sufficient to establish discrimination.[46]

In other words, Complainant has the burden to prove the level of assessment for the subject property in 2009. This is done by independently determining the market value of the subject property and dividing the market value into the assessed value of the property as determined by the assessor’s office.Complainant must then prove the average level of assessment for residential property in St. Louis County for 2009.This is done by (a) independently determining the market value of a representative sample of residential properties in St. Louis County; (b) determining the assessed value placed on the property by the assessor’s office for the relevant year; (c) dividing the assessed value by the market value to determine the level of assessment for each property in the sample; and (d) determining the mean and median of the results. The difference between the actual assessment level of the subject property and the average level of assessment for all residential property, taken from a sufficient representative sample in St. Louis Countymust demonstrate a disparity that is grossly excessive.[47]

Complainant’s discrimination claim fails because she failed to establish the market value of the property under appeal.Without establishing market value for the subject property, Complainant cannot establish the assessment ratio for the subject.Without establishing the subject property’s ratio, it cannot establish that the property is being assessed at a higher percentage of market value that any other property.

Even if Complainant had established market value for the property under appeal, the discrimination claim would still fail because she did not demonstrated that a statistically significant number of other residential properties within St. Louis County are being assessed at a lower ratio of market value than her property.Complainant completely failed to provide any evidence of a statistically sufficient sampling of residential properties in St. Louis County that would provide the basis to determine assessment ratios.

Because Complainant failed to establish the market value of her property and that her property was being assessed at a higher percentage of market value than a statistically significant number of other properties in St. Louis County, she failed to establish discrimination or an inequitable assessment.Accordingly, the property under appeal must be assessed at the statutory assessment ratio of 19% of its true value in money.[48]

Complainant’s Other Claim

Complainant asserted as her “Other” ground for appeal errors in the BOE Decision.Mrs. Vires’ apparent theory of her case was that if she demonstrated what she believed to be errors that occurred at the Board or in the overall assessment of her property that the Commission would have to conclude whatever value she tendered irrespective of presenting a valuation based upon recognized appraisal practice.The taxpayer’s theory holds no legal water.

Mrs. Vires sought to support her assertion of errors in the BOE Decision or in the overall assessment process by her various letters to county government officials.The general theme that runs through Complainant’s correspondence centers on the assertion of other homes decreased in the Assessor’s appraised value from the 2007 assessment cycle, while the property under appeal increased in its appraised value.This neither establishes an error at the Board hearing level or in the overall assessment process.

More importantly this claim is simply not the basis for the Commission to carry out its constitutional and statutory duties in this appeal.The Hearing Officer, acting on behalf of the Commission, does not review the actions of the local board of equalization in any given hearing that it may hold.The duty of the Hearing Officer is to consider the evidence that addresses the issue of what a willing buyer and seller would have agreed to as the purchase price of the property under appeal on the first day of January of the given assessment cycle.Simply because a taxpayer presents what he or she believes are errors or irregularities in the board hearing process, or the overall assessment process does not translate into the Hearing Officer concluding value simply based on some value the Complainant presents.

Hearings before the Commission are de novo.They are not hearings to sit in judgment on how the procedure before the board was conducted.Nor are hearings a process to attempt to answer the question, “Why did the value on one property decrease while the value on another property increased?”The answer to the question has no material impact to move the inquiry forward as to what is the true value in money of the subject property.The answer to the question is irrelevant to conclude what a willing buyer and seller would pay for a given property.

Because all of the various claims and assertions made in Complainant’s miscellaneous correspondence, and her arguments from responses made by county officials, have no relevance in this appeal, it is unnecessary to attempt in any fashion to address them in any detail.The purpose of the appeal to the Commission is to make a determination of the value of the property being appealed, in order that it can be assessed at the appropriate percentage of value.Complainant’s Other claim in this appeal is without merit, simply because it has nothing to do with establishing the fair market value of the property under appeal.When a taxpayer proposes some ground upon which value should be determined other than the true value in money of the subject property, the taxpayer has the burden to establish from statute or case law that their theory is correct for ad valorem assessment purposes.Complainant failed to meet this burden.

Respondent Proves Value of $184,500

The Respondent has imposed upon him by the provisions of Section 137.115.1, RSMo, the burden of proof to present clear, convincing and cogent evidence to sustain a valuation on residential property which is made by a computer, computer-assisted method or a computer program.There is a presumption in this appeal that the original valuation, which was sustained by the Board of Equalization, was made by a computer, computer-assisted method or a computer program.There was no evidence to rebut the presumption, therefore, in order to sustain the valuation of the subject property at $184,500, appraised value, Respondent’s evidence must come within the guidelines established by the legislature and must clearly and convincingly persuade the Hearing Officer as to the value sought to be sustained.

The statutory guidelines for evidence to meet the standard of clear, convincing and cogent include the following:

(1)The findings of the assessor based on an appraisal of the property by generally accepted appraisal techniques; and

 

(2) The purchase prices from sales of at least three comparable properties and the address or location thereof.As used in this paragraph, the word comparable means that:

 

(a)Such sale was closed at a date relevant to the property valuation; and

 

(b) Such properties are not more than one mile from the site of the disputed property, except where no similar properties exist within one mile of the disputed property, the nearest comparable property shall be used.Such property shall be within five hundred square feet in size of the disputed property, and resemble the disputed property in age, floor plan, number of rooms, and other relevant characteristics.[49]

 

Clear, cogent and convincing evidence is that evidence which clearly convinces the trier of fact of the affirmative proposition to be proved.It does not mean that there may not be contrary evidence.[50]The quality of proof, to be clear and convincing must be more than a mere preponderance but does not require beyond a reasonable doubt.[51]“For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder’s mind is left with an abiding conviction that the evidence is true.”[52]

The foregoing guidelines for evidence to be clear, cogent and convincing were met by the Godar appraisal.First, a conclusion of value was reached based upon an appraisal of the taxpayer’s property.The appraisal was performed under generally accepted appraisal techniques.Sales of six properties were used in the appraisal.The properties sold at times relevant to the valuation date of January 1, 2009.The sale properties were located in an area within .13 of a mile to less than a mile and a half.[53]The properties were similar to the property being appraised in age, floor plan, number of rooms, and other relevant characteristics.Accordingly, the statutory standard was met by Exhibit 1.

Having met the statutory requirements as to the type of evidence which must be presented to qualify as clear, convincing and cogent, the only inquiry remaining is whether that evidence[54] instantly tilted the scales in the affirmative when weighed against the evidence in opposition and the fact finder’s mind was left with an abiding conviction that the evidence is true?There was no substantive evidence presented which weighed against the evidence of Mr. Godar’s appraisal and testimony.Therefore, the scales of the Hearing Officer’s mind were instantly tilted in the affirmative as to the proposition of the value of $185,000 being correct.Furthermore, the Hearing Officer’s mind had an abiding conviction that the evidence was true.

The conclusion of value of $185,000 was clearly, convincingly and cogently established.In any case in St. Louis County where the assessor presents evidence which indicates a valuation higher than the value finally determined by the assessor or the value determined by the board of equalization, whichever is higher, for that assessment period, such evidence will only be received for the purpose of sustaining the assessor’s or board’s valuation, and not for increasing the valuation of the property under appeal.[55]Under the Commission rule just cited and Supreme Court decision[56] the assessed value cannot be increased above $35,050[57] in this particular appeal.

Conclusion

Complainant failed to: (1) rebut the presumption of correct assessment by the Board; (2) meet her burden of proof to establish the value she proposed; (3) meet her burden of proof to establish a claim of discrimination; and (4) prove any other ground upon which the Hearing Officer could conclude a value of only $125,000 for the subject property.

Respondent presented clear, convincing and cogent evidence to establish the fair market value of the property as of January 1, 2009, to be $184,500, as originally determined by the Assessor, and as set by the Board.Accordingly, the assessed value of $35,050 must be affirmed.

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 years 2009 and 2010 is set at $35,050.

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, 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 application for review is based will result in summary denial. [58]

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.If no Application for Review is filed with the Commission within thirty days of the mailing date set forth in the Certificate of Service, the Collector, 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.

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 February 1, 2011.

STATE TAX COMMISSION OFMISSOURI

 

 

_____________________________________

W. B. Tichenor

Senior Hearing Officer

w.b.tichenor@stc.mo.gov

 

 

 

 

Certificate of Service

 

I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 1^stday of February, 2011, to:Barbara Vires, 5155 Olde Silver Place, St. Louis, MO 63128,Complainant; Paula Lemerman, Associate County Counselor, County Government Center, 41 South Central Avenue, Clayton, MO 63105, Attorney for Respondent; Michael Brooks, ActingAssessor, County Government Center, 41 South Central Avenue, Clayton, MO 63105; John Friganza, Collector, County Government Center, 41 South Central Avenue, Clayton, MO 63105.

 

 

 

___________________________

Barbara Heller

Legal Coordinator

Barbara.Heller@stc.mo.gov

 

 

 

Contact Information for State Tax Commission:

Missouri State Tax Commission

301 W. High Street, Room 840

P.O. Box 146

Jefferson City, MO 65102-0146

573-751-2414

573-751-1341 Fax