State Tax Commission of Missouri
C. HARVEY & DONNA KASSEBAUM, )
)
Complainants, )
)
v. ) Appeal Number 09-10435
)
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 SET ASIDE. True value in money for the subject property for tax years 2009 and 2010 is set at $640,000, residential assessed value of $121,600. Complainant Donna Kassebaum appeared pro se. Respondent appeared by Associate County Counselor, Paula Lemerman.
Case heard and decided by Senior Hearing Officer W. B. Tichenor.
ISSUE
Complainants appeal, on the ground of overvaluation and discrimination, 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 November 3, 2010, at the St. Louis County Government Center, Clayton, Missouri.[1]
2. Assessment. The Assessor appraised the property at $649,000, a residential assessment of $123,310.[2] The Board reduced the value to $637,900, a residential assessed value of $121,200.[3]
3. Subject Property. The subject property is located at 35 Flynn Forest Lane, Glendale, Missouri. The property is identified by parcel number 22L140950. The property consists of 13,701 square foot lot improved with a two-story, single family residence built in 2000. The gross living area is 4,039 square feet. It has a full basement. The exterior is brick veneer and frame siding. There is a front porch, rear deck and a free formed lower level patio. There are two separate attached garages totaling 770 square feet of parking for three vehicles plus storage. The residence has a total of ten rooms, five bedrooms, three full and one half bathrooms. The unfinished basement has 2,451 square feet. The house is considered to be in average condition, and the quality of materials and workmanship is good, except for some trim components on the exterior. There is no functional obsolescence, but some items of deferred maintenance relative to painting, sealing and replacement or repair exist.
4. Complainant’s Evidence – Opinion of Value. Ms. Kassebaum testified on behalf of Complainants. The method which she used to arrive at a range of value from $558,260 to $602,000 was to pick houses within the range of the square footage of her home and add the price per square foot, the price of the sale and the total living area and divide the resulting figure to get an average and then multiply the average times the square foot area of the subject house.[4]
The procedure employed does not qualify as a recognized method for appraising property for ad valorem tax purposes before the Commission. See, Methods of Valuation, infra.
Complainant’s evidence as to her opinion of value 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 in a range from $558,260 to $602,000.[5]
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.[6]
5. Complainants’ Tendered Exhibits. By Order issued August 2, 2010, Complainants were given until and including August 20, 2010,[7] to file the original of all exhibits to be used in their case in chief and serve a copy upon the Counsel for Respondent. Complainant’s Exhibits were to be marked with letters beginning with the letter A, with the appeal number.[8] Ms. Kassebaum tendered Exhibits A through SS.[9] It was determined at the evidentiary hearing that Complainants had failed to comply with the Commission Order on serving a copy of the exhibits on Counsel for Respondent.[10] Exhibits A through SS were excluded from evidence for failure to comply with the Commission’s Orders. See, Exclusion of Exhibits A through SS, infra.
6. Respondent’s Evidence. Respondent presented the appraisal report[11] and testimony of Kyle Armstrong, Residential Appraiser – Senior for St. Louis County. Mr. Armstrong concluded a value of $640,000 for the subject property as of January 1, 2009, based upon the development of the sales comparison approach to value.
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 three properties were located within less than one mile of the subject (.56 to .80 of a mile). Each sale property sold at a time relevant to the tax date of January 1, 2009 (March 2008 – October 2008). 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.
11. Respondent’s Evidence Established Value. Respondent’s evidence met the standard of substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the value of the subject, as of January 1, 2009, to be $640,000. See, Methods of Valuation and Respondent Proves Value of $640,000, 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.[12]
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.[13] 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.[14] 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 of the property under appeal.
Presumption In Appeals
There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[15] 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.[16] Complainants failed to meet their burden of proof and rebut the presumption of correct assessment. Respondent, however, provided substantial and persuasive evidence that rebutted the presumption of correct assessment by establishing that the value of the subject property was $640,000.
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.[17] True value in money is defined in terms of value in exchange and not value in use.[18] It is the fair market value of the subject property on the valuation date.[19] 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.[20]
The Respondent’s appraiser valued the property under appeal in accordance with the Standard for Valuation.[21]
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] Ms. Kassebaum did not present an opinion of value for the subject property which was established relying on any recognized and accepted appraisal methodology. Mr. Armstrong’s appraisal, submitted on behalf of Respondent, concluded the fair market value of the property under appeal to be $640,000 relying on the sales comparison approach to value.
Complainants Fail To Prove Value of $553,260
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, 2009.[24] 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.”[25]
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[26] 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.[27]
Exclusion of Exhibits A through SS
As set out in Finding of Fact 5, Ms. Kassebaum failed to comply with the exchange orders issued in this appeal. The Order of August 2, 2010, setting the exhibit exchange specifically stated: “Upon finding that a party has willfully failed to comply with this order, sanctions may be imposed which may include exclusion of the non-complying party’s evidence or dismissal of the appeal. 12 CSR 30-3.060.” That directive was again included in the
August 18th Order which reset the date for filing and exchanging exhibits.
Counsel for Respondent informed the Hearing Officer via email on September 13, 2010, that she had not received Exhibits A through SS. This resulted in the Hearing Officer issuing his Order of September 15th in which the following was stated:
“Complainants failed to comply with the Commission Order on filing of exhibits issued August 18, 2010 which required that a copy of all exhibits be served upon Counsel for Respondent.
Complainants are given until and including September 30, 2010 to file with Counsel for Respondent a copy of Exhibits A through SS marked in accordance with the list of Complainants’ Exhibits in the Order of the Hearing Officer issued on September 9, 2010. Complainants shall file their certificate of service of said exhibits on Counsel for Respondent with the Hearing Officer on September 30, 2010.”
Complainants did not file on or before September 30, 2010, with Counsel for Respondent a copy of Exhibits A – SS. Complainants did not file on or before September 30, 2010, with the Hearing Officer, a copy of their certificate of service of said exhibits on Counsel for Respondent. A complainant appearing before the Commission is expected to comply with the orders of the Commission. When, as in this instance, a taxpayer elects to ignore the clear language of specific orders and simply decides to do as she wishes, the sanction of exclusion is appropriate.
Exhibits Not Probative of Value
The Hearing Officer had reviewed all of the tendered exhibits in advance of the evidentiary hearing. All of the exhibits, with the exception of Exhibit A,[28] were objectionable on the grounds of hearsay, relevance and lack of foundation as to supporting a recognized appraisal methodology. Because the method which Ms. Kassebaum concocted was worthless as an appraisal approach, the various documents which she thought in some form or fashion supported her averaging process were likewise worthless. Some of the exhibits purporting to show assessment history on the subject or other properties were likewise of no probative benefit. They provided no relevant information as to what a willing buyer and seller would have agreed to as the purchase price for the property under appeal on January 1, 2009.
In summary, the taxpayer offered a multitude of documents which had no probative benefit to establish the true value in money as of January 1, 2009, for the subject property. Accordingly, notwithstanding the failure to comply with the Commission’s Orders on exchange of exhibits, the tendered exhibits did not constitute evidence of value or support a conclusion of value under any acceptable appraisal approach.
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] In the present case, the opinion of a range of value for the subject property proffered by Ms. Kassebaum was not based upon any appraisal methodology. The averaging method relied upon by Complainant does not constitute proper elements or a proper foundation for a conclusion of value. Accordingly, no probative weight can be given to the conclusion that the value of the subject as of January 1, 2009, would be in a range from $558,260 to $602,000.
The owner of the subject property cannot testify regarding comparable sales without being qualified as an expert on valuation of real estate.[31] Ms. Kassebaum was not qualified by education, training and experience as an expert in the appraisal a real estate. Therefore, her attempt to utilize what she deemed to be comparable sales cannot be accepted.
It matters not that some of the properties she used in her averaging calculations may have appeared as comparables in data from the Assessor’s records, or even in Mr. Armstrong’s appraisal. A person testifying regarding comparable sales is not permitted to appropriate the credentials and expertise of an expert to bootstrap their attempt at valuation. If the person
seeking to testify regarding alleged comparable sales does not stand on their one feet as a qualified expert they cannot testify as to what may or may not be a comparable sale property.
Summary and Conclusion
Ms. Kassebaum failed to present a conclusion of value grounded in proper appraisal methodology. The Exhibits which she tendered and which were excluded did not provide any conclusions of value that were grounded in proper appraisal methodology, with the exception of her Exhibit A, which was received into the record as Exhibit 1. Complainants failed to meet the burden of proof to present substantial and persuasive evidence to rebut the presumption of correct assessment and establish value.
Respondent Proves Value of $640,000
Respondent presented substantial and persuasive evidence to establish a fair market value as of January 1, 2009, to be $640,000 for the subject property. Respondent’s appraiser developed an opinion of value relying upon an established and recognized approach for the valuation of real property, the sales comparison or market approach. The sales comparison approach is generally recognized to be the most reliable methodology to be utilized in the valuation of single-family residences.
The adjustments made by Mr. Armstrong were consistent with generally accepted guidelines for the appraisal of property of the subject’s type. The adjustments properly accounted for the various differences between the subject and each comparable. The net and gross adjustments as a percentage of the sales prices of each comparable fell within what are generally recognized to be acceptable ranges. This provides validity for the comparability of the sales selected for the appraisal problem.
Complainants’ Attempt To Submit Rebuttal Exhibits
On October 25, 2010, the Commission received a packet of documents from Complainants.[32] Ms. Kassebaum had by phone requested to be permitted to file rebuttal exhibits. By Order issued October 8, 2010, the provisions for filing rebuttal exhibits were set out as follows:
“Any rebuttal exhibits to be filed by Complainants shall be marked by Complainants with letters in sequence as Rebuttal A, Rebuttal B, etc. With any such rebuttal exhibits Complainants shall file their Rebuttal Exhibit List. Said list shall list the Rebuttal Exhibits in order with a description of each document and the part or parts of Respondent’s Exhibit 1 that the rebuttal exhibit purports to rebut. Rebuttal exhibits must be filed with the Commission on or before October 22, 2010[33], and a complete copy of each rebuttal exhibit and the Rebuttal Exhibit List must be served upon Paula Lemerman, Counsel for Respondent. Failure to comply with this Order will result in the exclusion of any rebuttal exhibits.”
The packet of documents submitted on October 25th, did not include a Rebuttal Exhibit List. It did not identify the part or parts of Exhibit 1 which the exhibit purported to rebut. The documents were not marked as ordered as Rebuttal Exhibit A, Rebuttal Exhibit B, etc. A copy of the Rebuttal Exhibit List and the exhibits were not served upon Counsel for Respondent. Therefore, the documents were excluded from the record in the appeal. In addition, a review of same revealed that none of the documents rebutted any part of the Armstrong appraisal, but only provided more irrelevant information.
ORDER
The assessed valuation for the subject property as determined 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 2009 and 2010 is set at $121,600.
Application for Review
A party may file with the Commission an application for review of this decision within thirty days of the mailing date set forth in the Certificate of Service for this Decision. The application shall contain specific facts or law as grounds upon which it is claimed the decision is erroneous. Said application must be in writing addressed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, MO 65102-0146, and a copy of said application must be sent to each person at the address listed below in the certificate of service.
Failure to state specific facts or law upon which the application for review is based will result in summary denial. [34]
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 March 15, 2011.
STATE TAX COMMISSION OF MISSOURI
_____________________________________
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 15th day of March, 2011, to: Donna Kassebaum, 35 Flynn Forest Lane, St. Louis, MO 63122, Complainant; Paula Lemerman, Associate County Counselor, Attorney for Respondent, County Government Center, 41 South Central Avenue, Clayton, MO 63105; Michael Brooks, Acting Assessor, 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
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] Residential property is assessed at 19% of true value in money (fair market value), Section 137.115.5(1), RSMo
[7] Complainant’s Request to be given until September 7, 2010, to file and exchange exhibits was granted by Order issued August 18th.
[8] Respondent was also required to likewise file and exchange its exhibits with the Commission and Complainant.
[9] The exhibits are identified individually in an Order, dtd9/9/10, the list identifying the exhibits is incorporated by reference into this Decision, as if set out in full herein. Ms. Kassebaum failed to mark the exhibits as she had been ordered, therefore, the Hearing Officer marked the exhibits for the purpose of identification.
[15] 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)
[16] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959)
[17] 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).
[18] 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).
[20] 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.
[21] Exhibit 1, Signature Page – Definition of “True Value in Money” as set forth by the state of Missouri
[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).
[25] 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).
[28] Exhibit A was a copy of Respondent’s Exhibit 1 – the Armstrong Appraisal, therefore, it was in the record in any event. So Exhibit A was simply duplicative of an exhibit that had been properly filed and exchanged in accordance with the Commission’s Orders.
[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] State ex rel. Mo. Hwy Transp. Com’n v. McDonald’s Corp., 872 S.W.2d 108 (Mo.App. E.D. 1994); State ex rel. Mo. Hwy Transp. Com’n v. Pracht, 801 S.W.2d 90 (Mo.App. E.D. 1990)
[32] The packet of documents was the same as a packet of documents which the Commission had received from Ms. Kassebaum on October 4th, 2010 and which had been returned with the Order of October 5th. The documents were returned at that time because they had been submitted after the deadline for filing exhibits of September 7, 2010. Order Setting Evidentiary Hearing, dated 10/5/10