State Tax Commission of Missouri
BEN VISCUSO,)
)
Complainant,)
)
v.)Appeal No.11-20004
)
ED BUSHMEYER, ASSESSOR,)
CITY OF ST. LOUIS, MISSOURI,)
)
Respondent.)
DECISION AND ORDER
HOLDING
Decision of the City of St. Louis Board of Equalization sustained the assessment made by the Assessor is AFFIRMED.True value in money for 2011 is set at $266,200, assessed value of $50,580.Complainant appeared in person.Respondent appeared by Assistant City Counselor Rich Kismer.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 City of St. Louis Board of Equalization, which sustained the valuation of the subject property.The Assessor determined an appraised value of $266,200, assessed value of $50,580, as residential property. A hearing was conducted on June 6, 2012, at the City of St. Louis, City Hall, St. Louis, 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 City of St. Louis Board of Equalization.
2.Complainant’s Evidence.Complainant testified on his own behalf and presented evidence.:
|
Exhibit |
Description |
Objection |
Ruling |
|
P1 |
Tax Bills 2009-2010 |
None |
Admitted |
|
P2 |
Cover Letter on BOE Decision |
None |
Admitted |
|
P3 |
Order Setting Case |
None |
Admitted |
|
P4 |
Summary of Salient Features |
Hearsay |
Document admitted as to address, square feet, and age.Appraisal data excluded. |
|
P5 |
Tax Bill 2011 |
None |
Admitted |
|
P6 |
Tax Bill 2010 |
None |
Admitted |
|
P7 |
Newspaper Articles |
Hearsay, Relevance |
Objection sustained |
|
P8 |
Newspaper Articles |
Hearsay, Relevance |
Objections sustained |
|
P9 |
Sheriff’s Receipt for subject |
None |
Admitted |
Complainant purchased the property in August 2009 at a tax sale for $125,000.
3.Respondent’s Evidence.Exhibit 1 was received into evidence.Exhibit 1 is an appraisal of the subject property by Appraiser Walter Carter.The appraiser presented a sales comparison approach using 3 sales occurring within .2 miles of the subject property, with sales dates of February 2010 to December 2010.The properties ranged in size from 1,319 to 1,696 square feet.The adjusted sales prices ranged from $226,00 to $291,000.The appraiser concluded on a value of $266,200.
4.Subject Property.The subject property is located at 4726 Prague Ave, St. Louis, Missouri.The property is identified by map parcel number 6219-00-00300.The property consists of a 4,560 square foot lot improved by a 1,568 square foot 2 story residence.
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.[1]
Presumption In Appeals
There is a presumption of validity, good faith and correctness of assessment by the Board of Equalization.[2] 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.[3]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.[4]It is the fair market value of the subject property on the valuation date.[5]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.[6]
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.[7]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.[8]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, 2011.[9]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.”[10]
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[11]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.[12]
Owner’s Opinion of Value
The owner of property is generally held competent to testify to its reasonable market value.[13]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[14]In the present appeal, Complainant did not present evidence of the market value of the property.Complainant presented evidence of the purchase of the subject property at a tax sale.He also presented his tax bills since he purchased the property.None of the exhibits establish the market value of the property on January 1, 2011.
The Complainant also presented articles from the St. Louis Post Dispatch.The Exhibit was excluded upon objection as hearsay and relevance.Taxpayers in appeals before the Commission often become quite enamored with newspaper and Internet articles about the decline in the housing market.The first problem with such documents as exhibits is that they are simply an out of court statement offered to prove the truth of itself.In other words they are hearsay.Furthermore, they are usually hearsay upon hearsay, since the person writing the article is generally relying upon other sources for the data about which they are writing and drawing their conclusions and opinions.Without the person who has written the article present to testify the proper foundation cannot be laid to receive the exhibit.
However, even assuming that in this instance, the authors[15] of the article had been present to lay the foundation and be cross-examined there is the additional evidentiary hurdle that must be cleared of the information contained in the article being relevant to the issues present in the appeal.Even if the article established a percentage or amount of dollar decline in real property values in St. Louis City, it does nothing to prove what a willing buyer and seller would have agreed to as the purchase price of Complainant’s property on January 1, 2011.The information contained in the article has no relevance as to the issue of overvaluation.It is therefore inadmissible on both the grounds of hearsay and relevance as objected to at hearing and was so excluded.
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 City of St. Louis for the subject tax day is AFFIRMED.
The assessed value for the subject property for tax year 2011 is set at $50,580.
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. [16]
The Collector of St. Louis City, 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 June 13, 2012.
STATE TAX COMMISSION OF MISSOURI
_____________________________________
Maureen Monaghan
Hearing Officer
Certificate of Service
I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 13thday of June, 2012, to:Ben Viscuso, 4726 Prague Avenue, St. Louis, MO 63109, Complainant; Rich Kismer, Associate City Counselor, 314 City Hall, St. Louis, MO 63103, Attorney for Respondent; Ed Bushmeyer, Assessor, 120 City Hall, St. Louis, MO 63103; Gregory Daly, Collector, 110 City Hall, St. Louis, MO 63103.
____________________________
Barbara Heller, Legal Coordinator
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
[2] 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).
[3] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).
[4] 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).
[6] 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.
[7] 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).
[8] 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).
[10] 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).
[13] 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).
[14] 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).