CASINO AZTAR, )
)
Complainant, )
)
v. ) Appeal Number 99-76503
)
DONNA SNIDER, ASSESSOR, )
PEMISCOT COUNTY, MISSOURI, )
)
Respondent. )
DECISION AND ORDER
HOLDING
Decision of the Pemiscot County Board of Equalization sustaining the assessment made by the Assessor, SET ASIDE, Hearing Officer finds true value in money for the subject property for tax year 1999 to be $4,237,791, assessed value of $1,411,200.
Complainant appeared by Counsel, Thomas L. Caradonna, St. Louis, Missouri.
Respondent appeared by Counsel, Stephen P. Sokoloff, Kennett, Missouri.
Case heard and decided by Chief Hearing Officer, W. B. Tichenor.
ISSUES
The Commission takes this appeal to determine the true value in money for the subject property on January 1, 1999. Specifically, the only issue of valuation is the value of the marine vessel, City of Caruthersville and a wharf barge, Scott.
SUMMARY
Complainant appeals the decision of the Pemiscot County Board of Equalization which sustained the valuation of the subject property. The Assessor determined an appraised value of $17,210,160 (assessed value of $5,736,720, as personal property). A hearing was conducted on July 27, 2000, at the Pemiscot County Courthouse, Caruthersville, Missouri. Complainant waived filing of Brief. Respondent filed her Brief on October 5, 2000. Counsel for Complainant filed a Reply Brief on October 16, 2000.
The Hearing Officer, having considered all of the competent evidence upon the whole record, and the arguments and responses advanced by each Counsel in the respective Briefs, enters the following Decision and Order.
Complainant’s Evidence
The following exhibits were received into evidence on behalf of Complainant.
Exhibit A – Appraisal Report of James N. Manley, Marine Surveyor.
Exhibit B – Written Direct Testimony of James N. Manley.
Respondent’s Evidence
Respondent submitted the Written Direct Testimony of Donna Snider (Exhibit 1) with Exhibit A, a balance sheet attached. The exhibit was excluded from evidence and was only received as an offer of proof.
FINDINGS OF FACT
1. The Hearing Officer received into evidence Commission Exhibit 1, listing of personal property including Slot Machines and Gaming Equipment, Boat and Barge, Fixtures and other Equipment, Computer Equipment. Tr. 9, Lines 5-9; Tr. 46, Line 5 – Tr. 47, Line 3. The Hearing Officer took official notice of the personal property listing attached to the Complainant for Review of Assessment filed with the Commission. Order, 7/28/00.
2. The subject property consists of the boat City of Caruthersville and the barge Scott. The City of Caruthersville was originally constructed and put into service as an excursion boat. In 1994 it was converted into a gaming vessel. Its approximate hull dimensions are 136 by 40 by 10 feet. The vessel is used for full time dockside gaming as the Aztar Casino. The Scott was originally used as a single skin tank barge prior to being converted for service as a casino service and passenger boarding barge. Its approximate hull dimensions are 210 by 51 by 11 feet. The Scott is believed to be about 40 years old. Exhibit A, pp. 9-10.
3. Complainant did not challenge the valuations made by the Assessor and sustained by the Board on the slot machines, gaming equipment computer equipment, fixtures and other equipment. The total appraised value of all personal property determined by the Assessor was $17,210,160. The appraised value of the City of Caruthersville and the Scott was $13,715,109 (Commission Exhibit 1). The value of the undisputed personal property not challenged in this appeal is $3,495,051. ($17,210,160 – $13,715,109 = $3,495,051).
4. Complainant’s personal property is identified by Assessor’s account number 05566, which includes all of Complainant’s personal property.
5. Complainant’s evidence was substantial and persuasive to rebut the presumption of correct assessment and establish the true value in money for the boat and barge as of January 1, 1999, to be $742,740.
6. The assessed value of the Complainant’s personal property is $1,411,200 ($3,495,051 + $742,740 = $4,237,791 x .333 = $1,411,185, rounded to $1,411,200).
CONCLUSIONS OF LAW
Jurisdiction
The Commission has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious. Article X, section 14, Mo. Const. of 1945; Sections 138.430, 138.431, RSMo. 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. Section 138.431.4, RSMo.
Board of Equalization Presumption
There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization. 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).
Standard for Valuation
Section 137.115, RSMo 1994, 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. 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). It is the fair market value of the subject property on the valuation date. Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, 897 (Mo. banc 1978).
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, 1999. Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, at 897. Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See, Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959). 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. Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975).
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. 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).
Trier of Fact
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. 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).
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 opinion or inferences upon the subject and must be otherwise reliable, the facts or data need not be admissible in evidence. Section 490.065, RSMo; 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. W.D. 1992).
DECISION
Valuation of the Boat and Barge
The only evidence of value for the boat and barge in this appeal is that of the Manley appraisal. Even if Respondent’s Exhibit 1 had been received into evidence, it would not have been relevant, substantial or persuasive evidence, due to the fact that it approached the valuation problem from the wrong perspective. Valuation in use, that is, valuing the boat and barge as a casino is not the proper standard under the statute and case law. Value in exchange is the appropriate standard. Casino personal property cannot be valued based upon the income stream of the gaming business conducted on the premises. It must be valued based on what a willing buyer and seller would pay for the personal property, not what someone would pay for the casino as an ongoing and operating concern, even if such a sale were possible. The going concern value can be calculated, but then there would have to be excluded from that going concern value, the value of the casino license. Furthermore, in order to arrive at the value of the boat and barge, it would also be necessary to extrapolate from the going concern value the value of the land and real property improvements which also make up the casino. The value of the gaming and all other supporting machinery and equipment would also have to be calculated and deducted. The contributory value of all other elements which make-up and contribute to the casino operation would have to be taken away from the going concern value to finally arrive at the value which the boat or barge contributes. A much simpler and more reliable method to arrive at the fair market value of a boat and a barge is represented by the valuation made by Complainant’s appraiser.
The property to be valued consists of the boat and barge. Its valuation must be based upon what a willing buyer and seller would pay for those two items, not what a willing buyer and seller might agree to a price for an operating casino. The taxation of gaming operations is controlled and administered under statutes other than those relating to the assessment of real property. The operating license for a casino cannot be bought and sold along with the boat and barge that are part of the casino. Therefore, any consideration as to what the subject property might sell for with a gaming license attached is pure speculation. Furthermore, such speculation would be valuing more than the boat and barge, it would be valuing the license.
The valuation of the boat and barge by Mr. Manley was based upon the data and analysis that the appraiser was able to develop on these two vessels from his investigation, knowledge and experience in marine vessel markets. The appraisal properly considered the existing condition of the two vessels. The market conditions affecting a hypothetical sale were also explored. The appraiser properly recognized that there are a limited number of casino licenses available and a limited number of locations to accommodate the subject vessels for a casino operation. This clearly impacts the potential use and market for either vessel.
In valuing the boat the appraiser considered sales of three other gaming vessels. These were all comparable to the subject. Two of the sales demonstrated that boats such as the City of Caruthersville have decreased in value from the height of the gaming boat boom. The range of decline was from an initial sale value in the early and mid-1990’s of $17,000,000 to $20,000,000 down to a resale value in 1999 and 2000 of $1,200,000 to $1,800,000. The third sale indicated a value of only $675,000 for a boat comparable to the subject.
The valuation of the barge was based on an analysis of gaming boat operations that indicates the barge would have scant appeal. The barge is not designed and equipped to operate in a larger gaming market. The major alterations required to make the barge efficient for operation in a larger gaming market would be prohibitive. Accordingly, the barge was only given a value of $125,000, essentially a scrap value. The evidence establishes that there is not any other reasonable market for the barge. The appraiser had determined that tank barges of this type are readily available at prices below $100,000 from a variety of sources. The availability of barges with comparable or better hulls in the market make the subject barge less desirable. Exhibit A, p. 13.
Respondent’s Brief and Argument
Counsel for Respondent put forth the following arguments in his Brief. The Hearing Officer has summarized these for purposes of this Decision.
A. Complainant’s appraiser dismissed out-of-hand utilization of a cost approach or income capitalization approach. This was inappropriate and improper.
B. Complainant’s appraiser valued the City of Caruthersville at $617,000, despite the fact that Complainant carries the boat at a depreciated value of $9,333,000.
C. Complainant’s appraiser valued the Scott at $125,000, without presenting any sales comparables and despite the fact that Complainant carries the barge at a depreciated value of $5,468,000.
D. Complainant’s assertion that use of the income approach for the boat is inappropriate because income is derived as a result of ownership of the gaming license, not ownership of the boat and barge is absolutely preposterous. The highest and best use for the boat and the barge is for gaming facilities.
E. Complainant’s sales comparison approach for the City of Caruthersville was not properly applied and utilized other sales that are clearly not comparable.
F. The appraisal of the Scott is wholly so inadequate that it provides no assistance in determining a value for the property. The appraiser made no attempt to assess the number of gaming positions available on the barge and failed to consider its available use as a gaming facility. These errors render the value established by the appraisal as worthless.
G. Complainant has for five years, since the initial opening of the casino, had an agreement with Respondent for the assessment of the subject property. In reliance on the agreement, the Assessor refrained from obtaining an outside appraisal of the property and relied instead on figures given to her by Complainant. Therefore, Complainant is estopped from asserting a value different than the figures provided to Respondent in prior years for the assessment of the boat and barge.
Complainant’s Brief and Argument
Counsel for Complainant in his Brief presented the following arguments in response to Respondent’s argument as set for in the Brief of Counsel for Respondent. The Hearing Officer has summarized Complainant’s responses for this Decision.
1. Complainant’s appraiser considered both the cost and income approaches, but determined to rely upon the sales comparison approach.
2. The fact that Complainant carries the boat and barge at certain depreciated values do not establish the market value for the boat and barge.
3. The claim of valuation of the boat and barge in use should be disregarded as fair value in exchange is the appropriate standard.
4. Complainant’s appraiser made appropriate adjustments to the comparable sales upon which the sales comparison approach was based.
5. The barge was not a gaming facility on January 1, 1999, and Complainant’s evidence demonstrated that single skin barges were selling as low as $15,000 and up to $80,000. Further, such barges are obsolete.
6. Respondent’s argument of equitable estoppel was not previously raised. There is no evidence of any agreement. It is questionable whether any such agreement would be legally permissible.
Hearing Officer’s Findings Relative to Respondent’s Arguments
and Complainant’s Responses
The Hearing Officer makes the following findings and determinations relative to the matters raised and addressed in Respondent’s Arguments.
I. Complainant’s appraiser gave consideration to the cost and income approaches in valuing both the boat and barge. He did not find these to be persuasive and relied upon the sales comparison approach to value the boat. The valuation of the barge was based more upon the appraiser’s general knowledge and experience. A barge such as the subject does not appear to be the type that would be bought and sold other than possibly for casino use. However, it is highly unlikely that another river boat casino licensee in Missouri or another state would have even considered purchasing the subject barge for use in a casino operation. An appraiser is not required to utilize an approach or approaches that cannot be developed and supported by appropriate data. Furthermore, the appraiser had investigated the market relative to barges with comparable or better hulls than the subject. Exhibit A, p. 13. The conclusion from that review of the market was that comparable barges were available for less than $100,000. While it would have strengthened the appraisal for the appraiser to have provided a listing of sources for this information, it is not fatally defective to his appraisal. In the absence of an evidentiary challenge by Respondent that would demonstrate that barges like the Scott are selling for $3 to $4 million dollars, Complainant’s evidence from its expert was not rebutted.
II. The book values assigned to the boat and barge by Complainant have no probative value for purposes of determining what a willing buyer and seller would have agreed to as a price for either item on January 1, 1999. Values utilized for accounting, income tax or gaming regulation purposes in the financial records of the Complainant are not indicators of market activity relative to valuation of the subject boat. Such depreciated values may or may not find support in the real world. It is not required that an appraiser disprove the book value when conducting an appraisal of personal property. The book value is irrelevant.
III. The failure to use an income approach in valuing the boat and barge was neither an error nor inappropriate on the part of Complainant’s appraiser. Nor was it absolutely preposterous as argued by Counsel for Respondent. There is nothing in this record to establish that boats or barges, like either of the two being valued in this appeal, are routinely leased to produce a stream of income. There is nothing to establish that boats and barges generally utilized in riverboat casino operations are owned by an entity other than the casino and then leased to the casino. If such were the case, then there certainly would be an appropriate income stream from which a capitalization of the income could be made to derive a value. However, any attempt to value the boat or barge in this appeal based on the income stream of the casino is completely outside of any recognized appraisal practice for valuation of the personal property. If the issue before the Commission was the value of the casino, then a completely different type of appraisal wold be in order. However, what is to be valued in this appeal is the boat and barge. Since these are not items of personal property established to be purchased by investors for lease in gaming operations, the lack of an income approach to value provides no basis upon which a rejection of the appraiser’s opinions of value can be made.
IV. Counsel for Respondent also asserts that the highest and best use of the subject boat and barge is as a casino. The concept of highest and best use as applied to valuation of personal property is defined as follows: Highest and best use for personal property: The reasonably probable and legal use of personal property, that is physically possible, appropriately supported, and financially feasible and that results in the highest value. USPAP, Appraisal Standards Board (1999). The shorthand definition can be set forth in four factors; (a) physically possible; (b) legally possible; (c) financially feasible and (d) productive to the maximum.
It is quite obvious that it is physically possible to take a boat like the subject and use it for a riverboat casino. It is likewise obvious that it is also physically possible to do the same thing to the subject barge. We know it is legally possible to make the subject boat and barge a casino because they exist as such. However, it must be recognized that this is only legally permissible because Complainant has a license to operate a casino at a certain location in the State of Missouri. Said license cannot be sold. The financial feasibility of using a boat or barge as a casino is again tied to the possessing of a gaming license. It would appear that utilization of boats and barges in conjunction with a casino would provide the maximum productivity for these items of personal property. However, once again the possession of a gaming license is the prerequisite to being able to so utilize these items of personal property.
The fact that the subject boat and barge have been improved and configured in such a way as to be utilized for the operating of a gaming facility does not establish highest and best use separate and apart from the casino license. In order to hypothecate, the highest and best use analysis tying these items of personal property to the casino, it must be shown that the most likely sale would be for this purpose, not that they are in use as a casino on tax date. The evidence on this record clearly demonstrates that neither the boat, or the barge would be readily marketable to another casino operator. The boat and barge are essentially a first generation riverboat gaming facility. It has been passed by in the rapidly changing riverboat gaming industry. New and remodeled riverboat casinos are not utilizing boats and barges like the subject.
Complainant’s evidence for valuing the boat and barge demonstrated that in a sale of these items of property, their highest and best use would no longer be as parts of a riverboat casino facility, separate and apart from a sale of the casino. The sale of the casino cannot take place. The license to operate the casino is not a saleable item.
V. Respondent’s points raised under items E and F, above, have been fully addressed in this Decision under Valuation of the Boat and Barge, supra. Accordingly, there is no further need to address these arguments.
VI. Finally, it is necessary to address Respondent’s equitable estoppel argument. Counsel for Respondent asserts Complainant had entered into an agreement with the Assessor for the assessment of the subject property. That based upon this agreement, Complainant made certain material representations of fact to the Assessor. The Assessor relied upon these representations to her detriment. Complainant is now asserting an inconsistent position by presenting evidence of fair market value of the boat and barge.
No copy of any agreement relating to how the subject personal property was to be valued for prior years or for the current assessment year (1999) was offered into evidence on behalf of Respondent. Apparently, the valuation each year of the subject boat and barge by the Assessor was done by depreciating the original costs for each of these items of personal property. In the years of valuation prior to 1999, Complainant had not pursued any appeal to the Commission. There was no evidence presented upon which a determination can be made that any agreement actually did exist between Complainant and Respondent relative to the valuation of the subject boat and barge or any other personal property owned by Complainant in Pemiscot County. Therefore, any claim of equitable estoppel based upon this purported agreement is without merit and unsupported by evidence on this record. Furthermore, Counsel for Respondent has presented to the Hearing Officer no statutory, nor case law authority, upon which a finding could be made that a local Assessor has the authority to permit taxpayers to set their own assessments, as asserted by Respondent’s Counsel to have been the case in the present appeal. In addition, the standard to be met in each assessment cycle is true value in money – fair market value, not a predetermined and agreed to formula which may or may not reflect the statutory standard.
An analysis of the equitable estoppel assertion demonstrates that it is not applicable in the present appeal. It would be completely inappropriate, arbitrary and capricious for the Hearing Officer to enforce such a defense to circumvent and ignore the clear evidence of value for the subject boat and barge.
Although, the Commission is not under the pleading requirements of the Rules of Civil Procedure, the asserting of this affirmative defense of equitable estoppel should have been asserted in response to the initial filing of the Complaint for Review of Assessment. Respondent could have filed a motion to dismiss, with appropriate supporting affidavits and exhibits to establish the existence of the alleged agreement; the alleged material representations of fact by Complainant; the nature of the reliance by Respondent; the alleged resulting detriment to Respondent; and the alleged assertion of an inconsistent position.
As the Hearing Officer understands the argument advanced by Counsel for Respondent it would be as follows. The Complainant and Respondent had agreed, due to the difficulty and expense of undertaking an appraisal of the subject boat and barge, to value these items in accordance with the figures given in Commission Exhibit 1. Said amounts being as follows:
| Boat | Barge | ||
| 15 year life with depreciation at 17% or 83% good. | |||
| Replacement Cost: | $11,225,779.50 | $5,298,448.74 | |
| Depreciation: | $ 1,908,382.50 | $ 900,736.74 | |
| Valuation: | $ 9,317,397.00 | $4,397,712.00 | |
| Total Replacement Cost: | $16,424,228.00 | ||
| Total Market Value: | $13,715,109.00 |
Commission’s Exhibit 1 only came into the record due to the Hearing Officer desiring to complete the record as to the value of other personal property that was not being appealed by Complainant (See, Tr. 4, Line 1 – Tr. 9, Line 9; Tr. 47, Line 9 – Tr. 52, Line 5). Counsel for Respondent is asserting that the above cited figures are material representations made by Complainant. He then argues that the Assessor relied upon these to her detriment in that she did not obtain an outside appraisal and relied upon these figures.
Respondent knew from the time of appeal to the Board that Complainant was challenging the above figures as representative of the true value in money for the subject boat and barge. The material representation made by Complainant by filing this appeal was that the figures were not representative of fair market value. The later appraisal submitted by Complainant is not inconsistent with that position. Respondent was on notice from the time of filing of the appeal to the Board that Complainant was disputing the value determined by the Assessor. Respondent’s failure to seek an outside appraisal and relying on original costs, less a depreciation factor, does not come within the doctrine of equitable estoppel.
The party asserting estoppel bears the burden of proving all the essential elements by clear and satisfactory evidence. Fraternal Order of Police Lodge #2 v. City of St. Joseph, 8 S.W.3d 257 (Mo. App. E.D. 1999); Collins v. Director of Revenue, 2 S.W.3d 164 (Mo. App. S.D. 1999); Director of Revenue v. Oliphant, 938 S.W.2d 345, 346 (Mo. App. 1997). In the present case, Respondent has not established the existence of any agreement between the parties relative to the assessment of the subject property for tax year 1999. The alleged detriment of Respondent not obtaining an outside appraisal to offer into evidence was due to Respondent’s own action and not any material misrepresentation or assertion of an inconsistent position by Complainant. There is nothing in this record to support a conclusion that during the Board proceedings or the filing made with this Commission that Complainant asserted that it would be relying on the depreciated figures set out above.
Counsel for Respondent’s equitable estoppel argument is creative. However, it is simply not applicable in an appeal before the Commission. The facts on this record demonstrate the absence of any of the three elements necessary to establish equitable estoppel. The point is not well taken.
Conclusion
Each appeal before the Commission must be determined based on the evidentiary record developed in a given case. The evidentiary record in this appeal, presented by Complainant, was sufficient to establish the value of the boat and barge. This Decision should not be considered as establishing any hard and fast methodology for valuing casino boats and barges. It may be that market data could be presented in other cases which would demonstrate the value a prospective purchaser would pay for these items of personal property contingent upon the granting of a gaming license. Market data might also be presented which would show what an entity in possession of a gaming license would pay for the boat and barge. A methodology whereby an actual sale of a gaming operation, with appropriate adjustments to arrive at the value for just the boat and barge might be presented, where such data can be developed and adjusted from the market. A valuation of the going concern, with appropriate adjustments to account for non-personal property items and factors, might be developed. Such evidence could demonstrate and establish values different than those determined by this record. This record did not so establish such information upon which a value other than that proffered by Complainant’s expert could be found.
ORDER
The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization for Pemiscot County for the subject tax day is SET ASIDE.
The assessed value for the subject property for tax year 1999 is set at $1,411,200.
A party may file with the Commission an application for review of this decision within thirty (30) days of the mailing of such decision. The application shall contain specific grounds upon which it is claimed the decision is erroneous. Failure to state specific facts or law upon which the appeal is based will result in summary denial. Section 138.432, RSMo 1994.
If an application for review of this decision is made to the Commission, any protested taxes presently in an escrow account in accordance with this appeal shall be held pending the final decision of the Commission. If no application for review is received by the Commission within thirty (30) days, this decision and order is deemed final and the Collector of St. Louis City, 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. If any or all protested taxes have been disbursed pursuant to Section 139.031(8), RSMo, either party may apply to the circuit court having jurisdiction of the cause for disposition of the protested taxes held by the taxing authority.
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, 2001.
STATE TAX COMMISSION OF MISSOURI
W. B. Tichenor
Chief Hearing Officer
ORDER
DENYING APPLICATION FOR REVIEW
OF HEARING OFFICER DECISION
On February 1, 2001, Chief Hearing Officer, W. B. Tichenor, entered his Decision and Order (Decision) setting aside the assessment by the Pemiscot County Board of Equalization and finding value for the subject property.
Respondent timely filed her Application for Review of the Decision stating six grounds or points as the basis for her Application. Counsel for Complainant timely filed his Response to Application for Review.
DECISION
The Commission upon review of the record and the Decision finds the points put forth by Respondent to be not well taken.
The Decision correctly addresses the valuation issue in this appeal. The Commission sees no value to be gained from restating the Hearing Officer’s determinations, conclusions and reasoning as they relate to each of the points asserted. There is competent and substantial evidence to establish a sufficient foundation for the analysis performed by the Hearing Officer in reaching his conclusion of value. The Commission finds no basis to support a determination that the Hearing Officer acted in an arbitrary or capricious manner or abused his discretion as the trier of fact and concluder of law relative to any of the points raised by Respondent. Hermel, Inc. v. STC, 564 S.W.2d 888 (Mo. 1978); Black v. Lombardi, 970 S.W.2d 378 (Mo. App. E.D. 1998); Holt v. Clarke, 965 S.W.2d 241 (Mo. App. W.D. 1998); Smith v. Morton, 890 S.W.2d 403 (Mo. App. E.D. 1995).
ORDER
The Commission upon review of the record and Decision in this appeal, finds no grounds upon which the Decision of the Hearing Officer should be reversed or modified. Accordingly, the Decision is affirmed.
Judicial review of this Order may be had in the manner provided in Sections 138.470 and 536.100 to 536.140, RSMo within thirty days of the date of the mailing of this Order.
SO ORDERED June 25, 2001.
STATE TAX COMMISSION OF MISSOURI
Sam D. Leake, Chairman
Bruce E. Davis, Commissioner
Jennifer Tidwell, Commissioner