Brian & Christena Cassidy v. Zimmerman (SLCO)

January 23rd, 2013

 State Tax Commission of Missouri






v.) Appeal No.11-10419











Decision of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor is SET ASIDE.Complainant presented substantial and persuasive evidence to rebut the presumption of correct assessment by the Board of Equalization.Evidence presented by Complainant and Respondent provided basis for Hearing Officer’s conclusion of true value in money.

True value in money for the subject property for tax years 2011 and 2012 is set at $717,240, residential assessed value of $136,280.

Complainants appeared pro se.

Respondent appeared by Associate County Counselor, Paula J. Lemerman.

Case heard and decided by Senior Hearing Officer W. B. Tichenor.


Complainants appeal, on the ground of overvaluation, 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, 2011.The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.


1.Jurisdiction.Jurisdiction over this appeal is proper.Complainants timely appealed to the State Tax Commission from the decision of the St. Louis County Board of Equalization.

2.Evidentiary Hearing.The Evidentiary Hearing was held on November 15, 2012, at the St. Louis County Government Center, 41 South Central Avenue, Clayton, Missouri.The hearing was continued to and concluded on November 28, 2012.

3.Subject Property.The subject property is identified by locator number 20Q340010.The property is located at 1101 Templeton Place, Town & Country, Missouri.A description of the property is provided in Exhibit B[1] and Exhibit 1[2].

4.Subject Living Area.The living area of the subject is 4,443 square feet.[3]See, Determination of Subject Living Area, infra.

5.Assessment.The Assessor appraised the property at $753,300, a residential assessed value of $143,120.The Board sustained the assessment.[4]

6.Complainants’ Evidence.Complainants offered the following exhibits at the evidentiary hearing:




Exhibit List


Appraisal – 1/1/11 – Roger Buelter[5] – $660,000


Owner’s Appeal Presentation


Settlement Statement – 7/22/05 – $645,000


How Much is Your House Worth – Good Housekeeping – 3/11


County Property Value Dip Is Historic – St. Louis – 8/3/10


St. Louis County Assessor Property Values Dropped – St. Louis Real Estate News – 3/15/11


Got Money? Capitalize on Economic Misery – St. Louis Post-Dispatch – 3/22/09


Housing Prices Still In Steep Decline – The Atlantic – 5/9/11


St. Louis Area Home Price Declines v. Assessor’s Property Values – St. Louis Real Estate News – 10/22/09


Complainants’ Tendered Comparables


No objection was made to Exhibits A or B, they were received into evidence.Counsel for Respondent objected to Exhibits C, and E through K.Objections were sustained.See, Complainant’s Exhibits, infra.Exhibit D was not objected to per se, but Counsel for Respondent asserted due to its representing a dated sale, little weight could be given to it for a valuation on 1/1/11.See, Sale of Subject, infra.

There was no evidence of new construction and improvement from January 1, 2011, to January 1, 2012, therefore the assessed value for 2011 remains the assessed value for 2012.[6]

Complainant’s evidence was substantial and persuasive to rebut the presumption of correct assessment by the Board and to be considered in the Hearing Officer’s conclusion of value.See, Hearing Officer Concludes Value, infra.

7.Respondent’s Evidence.Respondent tendered the appraisal report (Exhibit 1) of Terry Kraus[7].Exhibit 1 was received into evidence, without objection.Mr. Kraus testified as to his appraisal and opinion of value at the evidentiary hearing. The appraisal concluded a value of $764,000, therefore it could only be received to sustain the original assessment made by the Assessor and sustained by the Board and not for the purpose of raising the assessment above that value.See, Evidence of Increase in Value, infra.

8.Standard of Proof for Respondent.In order to sustain the Assessor’s original value of $753,300, the Respondent was required to meet the standard of clear, convincing and cogent evidence.See, Presumption In AppealsComputer-Assisted Presumption and Respondent’s Burden of Proof, infra.The Kraus appraisal as presented did not constitute clear, convincing and cogent evidence.See, Respondent’s Burden of ProofStatutory Standard Not Met to Sustain Assessor’s Value, infra.The Kraus appraisal as adjusted to account for the Subject Living Area constituted substantial and persuasive evidence persuasive to rebut the presumption of correct assessment by the Board and to be considered in the Hearing Officer’s conclusion of value.See, Hearing Officer Concludes Value, infra.

9.Conclusion of Value. The True Value in Money of the subject property as of 1/1/11 was $717,240, a residential assessed value of $136,280.See, Hearing Officer Concludes Value – Summary and Conclusion, infra.



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.[8]

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.[9]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.[10]

Presumption In Appeals

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[11]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.When some substantial evidence is produced by the Complainant, “however slight,” the presumption disappears and the Hearing Officer, as trier of facts, receives the issue free of the presumption.[12]The presumption is not evidence of value.

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.[13]

Board Presumption and Computer-Assisted Presumption

As just addressed there exists under operation of case law the presumption of correct assessment by the Board of Equalization.As will be addressed below (See, Evidence of Increase in Value and Respondent’s Burden of Proof, infra), there exists by statutory mandate a presumption that the Assessor’s original valuation was made by a computer, computer-assisted method or a computer program – the computer-assisted presumption.These two presumptions operate with regard to the parties in different ways.The Board presumption operates in every case to require the taxpayer to present evidence to rebut it.If Respondent is seeking to prove a value different than that set by the Board, then it also would be applicable to the Respondent.The computer-assisted presumption only comes into play if the Respondent is seeking to sustain the original assessment and it has not been shown that it was not the result of a computer assisted method.Such is the case in this appeal.

Board Presumption

The Assessor’s original value in this appeal was determined by the Board to be correct.Accordingly, the taxpayer must rebut that presumption in order to prevail.The taxpayer must establish by substantial and persuasive evidence that the value concluded by the Board is in error and what the correct value should be.The burden, of course, is discharged by simply establishing the fair market value of the property as of the valuation date, since once fair market value is established it, a fortiori,[14] proves that the Board’s value was in error.The computer-assisted presumption plays no role in this process.

Upon presentation of Exhibit B and the testimony of Mr. Buelter, the presumption in this appeal, as it related to the Complainant’s case, in chief disappeared.The submission of the appraisal report, performed by a state certified real estate appraiser, established prima facie that the Board’s value was in error.The appraisal established prima facie what the fair market value that should have been placed on the property.Standing on its own the Buelter appraisal established a fair market value as of January 1, 2011, of $660,000.

Computer-Assisted Presumption

The computer-assisted presumption can only come into play in those instances where the Respondent is seeking to have the Assessor’s original valuation affirmed.In those cases, such as this, where the Assessor’s original value has been sustained by the Board, and the Respondent has tendered evidence to support that value, the Hearing Officer then imposes the computer-assisted presumption on Respondent’s evidence.The effect of the computer-assisted presumption coming into operation is that the standard of proof for the Respondent is then raised from substantial and persuasive to clear, convincing and cogent as established by statute.As will be addressed in Respondent’s Burden of Proof, infra, the Hearing Officer is not persuaded that the standard was met by the Kraus appraisal.

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.[15]True value in money is defined in terms of value in exchange and not value in use.[16]It is the fair market value of the subject property on the valuation date.[17]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.[18]


Both appraisers concluded value under the Standard.[19]

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.[20]

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.[21]As will be addressed in detail below, the Hearing Officer has reviewed, considered, analyzed and weighed the testimony and appraisals of both expert witnesses in order to arrive at his conclusion of value.

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.[22]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.[23]Both appraisers concluded their opinions of value relying on the comparable sale approach.

Opinion Testimony by Experts

If specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert on that subject, by knowledge, skill, experience, training, or education, may testify thereto.

The facts or data upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reliable, the facts or data need not be admissible in evidence.[24]

Both appraisers were qualified as experts on the valuation of the subject property.The data upon which each appraiser relied were of the type that would be reasonably relied upon by residential real estate appraisers valuing the subject property.

Complainants’ Failed To Prove Value of $608,327 or $628,988

In order to prevail, Complainants 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.[25]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.”[26]A valuation which does not reflect the fair market value (true value in money) of the property under appeal is an unlawful, unfair and improper assessment.

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[27]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.[28]As will now be addressed, Complainants failed to meet the required evidentiary standard with regard to their opinions of value of $608,327 or $628,988.

Complainants’ Exhibits

Exhibit A:The list of exhibits if information only and provides no evidence to establish the fair market value of the property under appeal.

Exhibit B:The Buelter appraisal rebuts both the opinion of $608,327 and $628,988 therefore it does not constitute substantial and persuasive evidence in support of either opinion of value.

Exhibit C:This document forms the basis for the opinion of value of which Mr. Cassidy presented of $628,988.The Exhibit contains a great deal of hearsay and irrelevant material.It does not conclude a fair market value based on any accepted appraisal methodology.Therefore, Counsel for Respondent’s objections based upon lack of foundation, hearsay and relevancy were sustained and the Exhibit was not received into the record.

Exhibit D:The 2005 Settlement Statement was received into evidence.However, it has no probative weight to establish the proposed value of $608,327 or $628,988.Nor does it constitute substantial and persuasive evidence for the purchase price as the value for 1/1/11.See, Sale of Subject, infra.

Exhibits E – J:The collection of newspaper, magazine and internet articles is nothing but irrelevant hearsay.None of the documents in any manner address what a willing buyer and seller would have agreed to as the purchase price for the Cassidy home on 1/1/11.The articles have a lot of generalized hearsay about the economy and housing prices, however, none of it is acceptable to establish the fair market value for the subject property.There is no rational basis upon which the Hearing Officer can derive from any or all of the articles that the subject’s value as of 1/1/11 would be either $608,327 or $628,988.

Exhibit K:Complainant did not file this document as per the Order for Filing and Exchange of Exhibits.It was only offered to the Hearing Officer and Respondent’s Counsel at the evidentiary hearing on November 15th.As the Order stated, “Any document not filed and exchange as per this order, will not be received into evidence at the evidentiary hearing, rebuttal exhibits excepted.”Exhibits were to be filed on or before October 16, 2012.The Exhibit does not constitute a rebuttal of any of the information contained in either Exhibit 1 or the testimony of Mr. Kraus.Counsel for Respondent’s objections on the grounds of hearsay, lack of adjustments, no recognized appraisal methodology were all well taken.Therefore, the Exhibit was excluded on the grounds of objection offered by Respondent’s Counsel and the mandate of the Order for filing and exchanging of exhibits.The spreadsheet does not establish the value of $608,327 or $628,988 and was not relied upon by Mr. Cassidy in concluding his opinion of $628,988.

Owner’s Opinion of Value

The owner of property is generally held competent to testify to its reasonable market value.[29]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[30]The owner’s opinion stated on the Complaint for Review of Assessment of $608,327 was actually abandoned at hearing.The owner’s opinion testified to by Mr. Cassidy of $628,988 was not supported by any relevant market data utilized in any recognized appraisal methodology.Accordingly, the opinion of value of $628,988 was not based upon proper elements or a proper foundation.The opinion of value offered by Mr. Cassidy can be given no probative weight to either rebut the presumption of correct assessment by the Board, or to establish the true value in money for the subject as of 1/1/11.

Sale of Subject

Evidence of the actual sales price of property is admissible to establish value at the time of an assessment, provided that such evidence involves a voluntary purchase not too remote in time.The actual sale price is a method that may be considered for estimating true value.[31] The sale of the subject as evidenced by Exhibit D is too dated to be probative on the issue of fair market value as of 1/1/11.Complainant’s purchased the property in August, 2005 for $645,000.[32]The purchase sixty-four months prior to the valuation date is a sale too remote in time to be relevant to what a willing buyer and seller would have agreed to as the purchase price as of 1/1/11.

Determination of Subject Living Area

The two appraisers utilized different square footages for the gross living area of the Complainants’ house.Mr. Buelter used the square footage of 4,443.This was derived from both county records and his measuring of the second floor to address the matter of the vaulted area of the home.Mr. Kraus used the square footage of 4,600.This was derived from Assessor’s Floor Plan Sketch contained in his appraisal.The area was basically determined based on an estimation of the area on the second floor which would have been taking out by the cathedral or vaulted ceiling.

Of these two methodologies, the Hearing Officer is persuaded that Mr. Buelter’s reliance on both the Assessor’s records and his own measurements to ascertain the second floor area is the most reliable.Accordingly, for purposes of the appraisal of the Cassidy’s home, the living area of 4,443 is appropriate.

Evidence of Increase in Value

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.[33]The evidence presented by the Respondent indicated a value of $764,000, which would be a residential assessed value of $145,160.However, under the Commission rule just cited and Supreme Court decision[34] the assessed value cannot be increased above $143,130 in this particular appeal.

Respondent’s Burden of Proof

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 $753,300, 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.[35]


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.[36]The quality of proof, to be clear and convincing must be more than a mere preponderance but does not require beyond a reasonable doubt.[37]“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.”[38]

Statutory Standard Not Met to Sustain Assessor’s Value

Mr. Kraus concluded his value of the subject to be $764,000.This was based upon his findings from an appraisal based upon generally accepted appraisal techniques.He did use the sales of three properties which sold in the time frame from June, 2009 to December 2010.This is a range of time that is relevant to a valuation of Complainants’ property as of 1/1/11.The properties were all located within a mile of the subject.Sale 1 was within 500 square feet of living area to the subject.Sales 2 and 3 were not within 500 square feet of living area to the subject when using Mr. Kraus’ living area of 4,600. The three sale properties were otherwise similar to the Cassidy property in age, floor plan, number of rooms, and other relevant characteristics.

The problem which arises in the mind of the Hearing Officer is that the living area of 4,600 used by Mr. Kraus was not correct.Accordingly the adjusted sales prices were each in error.The statute uses the word “shall” when establishing the 500 square foot standard for variance in size.The statute however does not talk in terms of living area, which is the usual factor which appraisers address when developing the comparable sales approach.Instead the statute uses the word “size.”The Hearing Officer has always interpreted and applied the word “size” to mean living area of the house under appeal.This will be done in this instance.

If the word “shall” is used in its ordinary, everyday usage, then any sale property not coming within the 500 square foot standard would have to be excluded from consideration as not being “comparable” properties.In this case, based upon the square footage of 4,600, sales 2 and 3 would not be considered comparable based on size.Sale 2 is 533 square feet smaller than the subject.Sale 3 is 838 square feet smaller than the subject.This would result in the Kraus appraisal having only one sale property for a determination of value instead of three as required by the statute.The Hearing Officer is not persuaded that this is the appropriate manner in which to ascertain true value in money in appeals before the Commission when the clear and convincing standard is to be followed.

A strict adherence to the 500 square foot factor means that a sale property otherwise comparable to the property being appraised that was only 501 square feet larger or smaller than the subject would violate the statutory mandate.Such application of the statute flies in the face of simple logic, not to mention common sense.Variations in living area for a property beyond the 500 square foot model reasonably go to the weight to be given the adjusted sale price concluded for such a property, rather than excluding the sale altogether.

The case law directive cited above requires that for evidence to meet the clear and convincing standard 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.”The Kraus appraisal, as presented, when weighing the other appraisal evidence in this record, simply does not “instantly tilt the scales in the affirmative that the value of $764,000 is correct.Nor is the mind of the Hearing Officer left with an abiding conviction that the value is true as the fair market value of the property on 1/1/11.Since that is the case, the appraisal is not sufficient to sustain the Assessor’s original computer assisted value of $753,300, irrespective of the Board’s affirmation of that value.

Hearing Officer Concludes Value

Buelter Appraisal

The Buelter appraisal standing on its own constitutes substantial and persuasive evidence of a fair market value of $660,000.That is to say a reasonable mind can easily find it adequate to support that conclusion of value.It does not mean that all other reasonable minds would find it so.Reasonable minds may, of course, differ.

The sale properties relied upon by Complainants’ appraiser all sold in a time period relevant to a valuation on 1/1/11.The properties were located within 1.35 to 1.7 miles of the subject.No evidence was presented to establish that the location of the comparables was sufficiently different from the subject’s location as to render any of the properties as non-comparable.Nor did the appraiser deem it necessary to make any adjustment for any difference in location.The Hearing Officer has no basis upon which to place any negative weight against the Buelter appraisal based on this factor. The one mile mandate addressed above under Respondent’s Burden of Proof is not applicable to appraisals not seeking to sustain am Assessor’s computer generate or assisted valuation.It is simply a factor to be considered in weighing the evidence.

Mr. Buelter’s had two of his comparables that were smaller than the subject by 853 and 968 square feet of living area respectively.As addressed above, this does not exclude these sales, but simply must be considered in the weight of the evidence.The 500 square foot standard, like the one mile criterion, is a factor to be considered, but does not render such sales as not useful in concluding value.These two sales which exceed the standard by 353 and 468 square feet can still be part of the valuation process.This exemplifies, as does the Kraus sales data, that finding comparables very similar in living area for 4,000 + square foot houses sometimes presents a challenge.

Kraus Appraisal

The other appraisal evidence present in the record must be evaluated and considered when weighing the Buelter conclusion of value.The immediate problem in the Kraus appraisal is the matter of the adjustments made by Mr. Kraus for living area.The Hearing Officer has utilized the $45 per square foot employed by Mr. Kraus for this adjustment to recalculate the living area adjustment for the three Kraus comparables using the 4,443 square foot area.When these calculations are made, the adjusted sale prices for the comparables are:$761,345, $769,175 and $726,600.

Kraus comparables 1 and 2 both present evidence indicating a valuation higher than the Board value.Under Section 138.060, RSMo, 12 CSR 30-3.075 and the Court’s holding in Ashby Road Partners (See, Evidence of Increase in Value, supra) those indicated values cannot be considered to increase the assessed value above $143,130 or, in other words, to sustain the assessor value of $753,300.Accordingly, the Hearing Officer concludes that weight can be given to comparables 1 and 2 for a value of $753,300, but not for the higher values indicated under the recalculation.Kraus comparable 3, since its indicated value is only $726,600 can simply be weighed as substantial and persuasive evidence.

Comparison of Comparable Sales

The Hearing Officer is satisfied that each appraiser made his individual adjustments for differences in amenities between the subject and the comparables based upon his best expert judgment.The Hearing Officer has no basis upon which to make differing adjustments for either appraisal, for to do so would result in the Hearing Officer becoming an appraiser, instead of a trier of fact.Nor is the Hearing Officer persuaded that the adjustments made by one appraiser for differences in amenities is stronger than the same adjustment made by the other appraiser.

Therefore, the evidence presented provides indicated values on six separate properties as comparables.The per square foot sale price of these properties fall as follows: $147.71, $168.50, $168.70 $175.81, $176.12 and $185.81.[39]This provides a good range of values, with the four sales in the middle (two Buelter comps and two Kraus comps) lying in a very close range.The adjusted sales prices on a per square foot basis (utilizing the 4,442 square feet for the subject) give the following values (in the same order as just set forth):$153.09, $145.85, $171.36, $173.12, $148.26 and $163.54.This comparison between the per square foot sales price and the per square foot adjusted sales price provides the individual variance for each of the sale properties.Those variances are:


Comparable Sale

Sale Price

Adjusted Price



Buelter Comp 1





Buelter Comp 2





Buelter Comp 3





Kraus Comp 1





Kraus Comp 2





Kraus Comp 3






The smaller the variance the more comparable the sale property is to the subject property.Therefore, ranking the properties based on variance from the smallest to the highest, puts the six comparables in the following order: Kraus Comp 2, Kraus Comp 1, Buelter Comp 3, Kraus Comp 3, Buelter Comp 1 and Buelter Comp 2.The adjusted sales prices in that order are: $769,175, $761,175, $680,160, $726,600, $648,020 and $658,720.However, the value which the Hearing Officer can consider for the Kraus Comps 2 and 1 must be capped at $753,300 to reflect the assessed value of only $143,130.See, Evidence of Increase In Value, supra.

The Hearing Officer weights the indicated values as follows: 25-25-23-11-11-5.This produces the following weighted values (rounded to the nearest $10): $188,320, $188,330,[41] $156,440, $79,930, $71,280 and $32,940.The indicated value for the subject property is: $717,240.

Summary and Conclusion

The adjusted sales data by the two appraisers provides substantial and persuasive evidence to rebut the presumption of correct assessment by the Board.There is substantial and persuasive evidence upon which a conclusion of value can be made.The weighted value based on the closest comparability to the subject established the indicated value of the subject as of 1/1/11 to be: $717,240.A residential assessed value of $136,275.60, rounded to $136,280.


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 SET ASIDE.

The assessed value for the subject property for tax years 2011 and 2012 is set at $136,280.

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. [42]

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 January 10, 2013.



p class=MsoNormal style=’mso-pagination:none’>W. B. Tichenor

Senior Hearing Officer

Certificate of Service


I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 10th day of January, 2013, to:Brian Cassidy, 1101 Templeton Place, Chesterfield, MO 63017, Complainant; Paula Lemerman, Associate County Counselor, Attorney for Respondent, County Government Center, 41 South Central Avenue, Clayton, MO 63105; Jake Zimmerman, Assessor, County Government Center, 41 South Central Avenue, Clayton, MO 63105; Eugene Leung, Director of Revenue, County Government Center, 41 South Central Avenue, Clayton, MO 63105.


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


573-751-1341 Fax

[1] Exhibit B – Pages 1& 2 of 6; Floorplan Sketch; Subject Property Photo Addendum


[2] Description of the Improvements-Subject Property; Addendum Page 1 of 3; Photos of Subject


[3] Exhibit B – Improvements, Page 1 of 6 and Sales Comparison Grid – Gross Living Area, Page 2 of 6


[4] Exhibit 1 – Assessment Information and Tax Data, Addendum Page 1 of 3; Residential property is assessed at 19% of its appraised value (true value in money, fair market value) – Section 137.115.5, RSMo


[5] Missouri Certified Residential Real Estate Appraiser


[6] Section 137.115.1, RSMo.


[7] Missouri Certified Residential Real Estate Appraiser


[8] Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo.


[9] Article X, Sections 4(a) and 4(b), Mo. Const. of 1945


[10] Section 137.115.5, RSMo


[11] 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)


[12] United Missouri Bank of Kansas City v. March, 650 S.W.2d 678, 680-81 (Mo. App. 1983), citing to State ex rel. Christian v. Lawry, 405 S.W.2d 729, 730 (Mo. App. 1966) and cases therein cited.


[13] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959)


[14] By even greater force of logic; even more so – Blacks Law Dictionary, Seventh Edition, p. 61


[15] 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).


[16] Daly v. P. D. George Company, et al, 77 S.W.3d 645, 649 (Mo. App E.D. 2002), citing, Equitable Life Assurance Society v. STC, 852 S.W.2d 376, 380 (Mo. App. 1993); citing, Stephen & Stephen Properties, Inc. v. STC, 499 S.W.2d 798, 801-803 (Mo. 1973).


[17] Hermel, supra.


[18] 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.


[19] Exhibit B – Definition of Market Value, Page 4 of 6; Exhibit 1 – Definition of Value; Definition of “True Value in Money” as set forth by the State of Missouri, Page 4 of 4


[20] 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).


[21] 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).


[22] 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).


[23] 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).


[24] Section 490.065, RSMo; State Board of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. SC. 2004); Courtroom Handbook on Missouri Evidence, Wm. A. Schroeder, Sections 702-505, pp. 325-350; Wulfing v. Kansas City Southern Industries, Inc., 842 S.W.2d 133 (Mo. App. E.D. 1992).


[25] Hermel, supra.


[26] 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).


[27] See, Cupples-Hesse, supra.

Substantial and persuasive evidence is not an extremely high standard of evidentiary proof.It is the lowest of the three standards for evidence (substantial & persuasive, clear and convincing, and beyond a reasonable doubt).It requires a small amount of evidence to cross the threshold to rebut the presumption of correct assessment by the Board.The definitions, relevant to substantial evidence, do not support a position that substantial and persuasive evidence is an extremely or very high standard.

“Substantial evidence: Evidence that a reasonable mind would accept as adequate to support a conclusion; evidence beyond a scintilla.”Black’s Law Dictionary, Seventh Edition, p. 580.

The word scintilla is defined as “1. a spark,2. a particle; the least trace.” Webster’s New World Dictionary, Second College Edition.Black’s definition at 1347 is “A spark or trace <the standard is that there must be more than a scintilla of evidence>.”There must be more than a spark or trace for evidence to have attained the standard of substantial.Once there is something more than a spark or trace the evidence has reached the level of substantial.Substantial evidence and the term preponderance of the evidence are essentially the same.“Preponderance of the evidence.The greater weight of the evidence; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”Black’s at 1201.Substantial evidence is that a reasonable mind would accept as adequate to support the conclusion.Preponderance is sufficient to incline a fair and impartial mind to one side of the issue rather than the other, i.e. support the proposed conclusion.


[28] Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975).


[29] 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).


[30] 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).


[31] St. Joe Minerals Corp., supra.


[32] Since 2007, Complainants invested $22,737 into improvements on their home -Exhibit C.


[33] Section 138.060, RSMo; 12 CSR 30-3.075.


[34] The Supreme Court of Missouri has interpreted Section 138.060.The Court stated:

“Section 138.060 prohibits an assessor from advocating for or presenting evidence advocating for a higher ‘valuation’ than the ‘value’ finally determined by the assessor. … . Because the legislature uses the singular terms ‘valuation’ and ‘value’ in the statute, however, it clearly was not referring to both true market value and assessed value.While the assessor establishes both true market value and assessed value, which are necessary components of a taxpayer’s assessment, as noted previously, the assessed value is the figure that is multiplied against the actual tax rate to determine the amount of tax a property owner is required to pay.The assessed value is the ‘value that is finally determined’ by the assessor for the assessment period and is the value that limits the assessor’s advocacy and evidence.Section 138.060.By restricting the assessor from advocating for a higher assessed valuation than that finally determined by the assessor for the relevant assessment period, the legislature prevents an assessor from putting a taxpayer at risk of being penalized with a higher assessment for challenging an assessor’s prior determination of the value of the taxpayer’s property.”State ex rel. Ashby Road Partners, LLC et al v. STC and Muehlheausler, 297 S.W.3d 80, 87-88 (Mo 8/4/09)


[35] Section 137.115.1(1) & (2).


[36] Grissum v. Reesman, 505 S.W.2d 81, 85, 86 (Mo. Div. 2, 1974).


[37] 30 AmJur2d. 345-346, Evidence section 1167.


[38] Matter of O’Brien, 600 S.W.2d 695, 697 (Mo. App. 1980).


[39] $147.71 (Buelter – Comp 3), $168.50 (Buelter – Comp 1), $168.70 (Kraus – Comp 1), $175.81 (Kraus – Comp 2), $176.12 (Buelter – Comp 2) and $185.81 (Kraus Comp 3).


[40] The percentage is calculated by dividing the original sale price per square foot into the variance, so that the percentage is the percentage variance from the original price.


[41] 25% of 753,300 = $188,325, therefore the first sale was rounded down to $188,320, and the second sale was round up to $188,330.


[42] Section 138.432, RSMo.