State Tax Commission of Missouri
CERAME TRUST MANAGEMENT, )
v. ) Appeal No. 11-11450 & 11-11451
JAKE ZIMMERMAN, ASSESSOR, )
ST. LOUIS COUNTY, MISSOURI, )
DECISION AND ORDER
Decisions of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor are SET ASIDE in part and AFFIRMED in part. Complainant presented substantial and persuasive evidence that rebutted the presumption of correct assessments by the Board of Equalization, and establish the appropriate classification for the properties under appeal.
True value in money for the subject property in Appeal 11-11450 for tax years 2011 and 2012 is set at $360, agricultural assessed value of $40.
True value in money for the subject property in Appeal 11-11451 for tax years 2011 and 2012 is set at $1,952,900, assessed value of $623,870 (commercial – $623,230; agricultural – $640).
Complainant appeared by Counsel, Christopher O. Bauman, Blitz, Bardgett & Deutsch, St. Louis, Missouri.
Respondent appeared by Associate County Counselor, Paula J. Lemerman.
Case heard and decided by Senior Hearing Officer W. B. Tichenor.
Complainant appeals, on the ground of overvaluation, misclassification and discrimination, the decisions of the St. Louis County Board of Equalization, which sustained the valuations and classifications of the subject property. The Commission takes this appeal to determine the classification and 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.
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.
2. Evidentiary Hearing. The Evidentiary Hearing was held on December 13, 2012, at the St. Louis County Government Center, 41 South Central Avenue, Clayton, Missouri.
3. Discrimination Claim Abandoned. No evidence was filed and exchange or offered at the evidentiary hearing to establish a claim of discrimination. The claim is deemed to have been abandoned by Complainant.
4. Overvaluation Claim on Improved Property Abandoned. No evidence was filed or exchange or offered at the evidentiary hearing to establish the true value in money for the improved real estate in Appeal 11-11451. Complainant agreed at trial that the improved portion of the property in Appeal 11-11451 should be assessed as commercial property at the value established by the Assessor and sustained by the Board.
5. Identification of the Subject Properties. The subject property in Appeal 11-11450 is identified by locator number 09G130022 and is further identified as 11675 New Halls Ferry Road, Florissant, Missouri. The subject property in Appeal 11-11451 is identified by locator number 09G130077 and is further identified as 11655 New Halls Ferry Road, Florissant, Missouri.
6. Description of the Subject Properties. The subject property in Appeal 11-11450 consists of .44 of an acre of unimproved land. The subject property in Appeal 11-11451 consists of 12.28 acres of land, 5.72 acres of which are improved and 6.56 acres are unimproved. The improved portion has an automobile dealership with appropriate structures and improvements. The unimproved acreage that is contested consists of 7 acres of land
7. Assessment – Appeal 11-11450. The property in Appeal 11-11450 was appraised by the Assessor at $6,500, as residential property, resulting in an assessed value of $1,240. The Board sustained the assessment.
8. Assessment – Appeal 11-11451. The property in Appeal 11-11451 was appraised by the Assessor at $3,040,000, as commercial property, resulting in an assessed value of $972,800. The Board sustained the assessment.
9. Assessor/Board’s Land Value – Appeal 11-11450. The appraised value of the .44 of an acre was $6,500.
11. Value of Uncontested Property – Appeal 11-11451. The improved portion of the property in Appeal 11-11451 not contested by Complainant has a land value of $166,520 per acre for the 5.72 acres or $952,490, and value of improvements of $995,100, for a total value of $1,947,590, a commercial assessed value of $623,230.
12. Complainant’s Evidence. Complainant filed and exchanged the following exhibits:
Aerial Photograph of 7 acre tract (property being contested)
Ruppel Bros. Landscaping – Invoice dated 11/4/10 – Custom Farming
ADM Grain Company Settlement Statement, dated 7/23/12
Written Direct Testimony – Randy Ruppel
13. Respondent’s Evidence. Respondent did not file and exchange any exhibits for a case in chief. Respondent filed and exchanged the following rebuttal exhibits:
Aerial Map & Photographs of disputed land
Letter dated 8/1/11 submitted to BOE
Current Listing/Marketing Flyer on disputed land
Pictomerty Photo of Disputed land
Survey of property in Appeal 11-11451
14. Actual Use of Properties. The actual use of the property, in Appeal 11-11450 and the unimproved portion of the property in Appeal 11-11451, has been since October 2010 an agricultural use of planting and harvesting of a crop. See, Actual Use of Properties, infra.
15. Board Presumption Rebutted – Agricultural Use Established. Complainant’s evidence was substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the classification of the subject property, as of January 1, 2011, to be agricultural, to be valued under the appropriate agricultural productive land value grade. See, Agricultural Use Established, infra.
16. Applicable Agricultural Productive Value. The Agricultural Productive Value applicable to the contested unimproved acreage is Grade 2. The value for Grade 2 land is $810 per acre. See, Agricultural Productive Value, infra.
17. Conclusions of Values. The true value in money for the property in Appeal 11-11450 is $360, an agricultural assessed value of $40. See, Conclusion of Value, infra. The true value in money for the improved portion of the property in Appeal 11-11451 is set at $1,947,590, a commercial assessed value of $623,230. See, FINDING OF FACT 11, supra. The true value in money for the unimproved portion of the property in Appeal 11-11451 is $5,310, an agricultural assessed value of $640. See, Conclusion of Value, infra.
CONCLUSIONS OF LAW AND DECISION
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.
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. 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.
Presumption In Appeals
There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization. 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. The presumption is not evidence of value.
In the present appeals, the presumption of correct assessment is rebutted when the taxpayer presents substantial and persuasive evidence to establish that the Board’s assessments are erroneous and what the correct classification that should have been placed on the properties.
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 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.
The Assessor’s original assessments in this appeal were 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 classification concluded by the Board is in error. The evidence presented by Complainant has met the required standard to both rebut the presumption and to establish the correct classification, and hence the value of the disputed properties.
Weight to be Given Evidence
The Hearing Officer is free to consider all pertinent facts 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. The Hearing Officer as the trier of fact may consider the testimony of an expert or lay 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 expert or lay witnesses who testify on the issue of classification, but may believe all or none of the testimony presented and accept it in part or reject it in part.
In this instance, the critical testimony of Complainant’s witness was unrebutted as to the actual use of the property for the planting and harvesting of crops. Accordingly, the Hearing Officer has no basis upon which he can reasonably or logically ignore and simply dismiss the testimony of Mr. Ruppel. Therefore, that testimony is accorded substantial and persuasive weight and established the actual use of the property in dispute to be an agricultural use.
Complainant’s Burden of Proof
In order to prevail in this appeal, Complainant must present an opinion as to the correct classification of the property under appeal and substantial and persuasive evidence that establishes that classification for the subject property on January 1, 2011. 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.” A valuation which does not reflect the correct classification of the property under appeal is an unlawful, unfair and improper assessment. As will be addressed below the unrebutted evidence established that the only use to which the subject property had been put for the time relevant to this case is that of sowing and harvesting of winter wheat – an agricultural use of the property. There was no other use, residential or commercial for the time period relevant to the 2011 – 2012 assessment.
Actual Use of Properties
Commencing in October 2010 the subject acreage was sown to winter wheat. In October 2011 the acreage was again planted in winter wheat. Likewise in October 2012 winter wheat was planted. In both 2011 and 2012 the crops were harvested. Due to harsh winter conditions in 2010 – 2011 the crop that was harvested did not produce sufficient yield to market the wheat. The 2012 harvest did produce a marketable corp.
Neither the owner, not the individual farming land for an owner, has any control over the natural elements. It is not uncommon for winter weather, drought, floods or other occurrences of nature to destroy crops or reduce the yield in any given growing season. While such events may eliminate or significantly reduce the crop production for a given growing season they do not alter or put aside the actual use to which the land has been put in such a season. In this instance, the subject land was sown to a crop in October 2010. That crop was in the grown and according to the nature of winter wheat it was lying dormant on 1/1/11. However, during its normal growing season it grew and produced a crop. The crop for 2011 was severally impacted by the harsh winter, so that the yield was significantly less than would ordinarily be expected. Nevertheless, a crop was harvested.
Complainant continued this particular use of the subject acreage in the fall of 2011 and through the 2011 – 2012 season. This is important as it established and demonstrated the owner’s intent to continue the use of the land to produce winter wheat. Likewise, the use of the land for production of a crop continued into the 2012 – 2013 season.
At no time since, October 2010 has the subject land been unused. It has been in use since that time in the same manner as thousands of acres of Missouri farmland during the same period of time. The only use to which the subject had been put as of 1/1/11 was for the growing of winter wheat. That use has continued to the present time.
Agricultural Use Established
The statutory definition for agricultural property is “all real property used for agricultural purposes and devoted primarily to the raising and harvesting of crops.” In this case, the uncontroverted evidence has established the actual and only use of the contested land is for an agricultural purpose. Sowing and harvesting winter wheat is an agricultural purpose.
Since the only use of the property has been growing and harvesting winter wheat, there is no issue of any primary as opposed to a secondary use. The only use, a fortiori, of the property is its primary use. The agricultural use of the contested acreage is established, thus the correct classification for the property in question is agricultural. There is a small strip of land whose cover is predominantly trees and other woody vegetation. This land was, of course, not sown to winter wheat. However, the area is so small as to have no impact on establishing the overall use and classification of the property. Because the actual use of the property establishes its agricultural classification, it is unnecessary to perform any analysis as to the property’s immediate most suitable economic use.
Agricultural Productive Value
Once the classification of a property has been established as agricultural, then it is necessary to apply the appropriate agricultural land productive value in order to assess the property. The appropriate productive value to be applied to the subject land is Grade # 2. The per acre use value of Grade # 2 land is $810. There are two portions of the subject land which have been sown to grass to create drainage areas to prevent erosion. This is not only consistent with good agricultural practice, but it is also in keeping with the definition of Grade # 2 land which recognizes the requirement for careful soil management, including some conservation practices to prevent deterioration. The establishment of drainage areas to prevent erosion is part of the overall agricultural use necessary on the land to permit its utilization for growing a crop.
Conclusion of Value
The use of the property having established meeting the statutory definition for the agricultural classification of the property, the true value in money under Grade # 2 land of $810 must be applied to the disputed seven acres. This results in a true value in money for the acreage of $5,670, an assessed value of $680.
The assessed valuations for the subject properties as determined by the Assessor and sustained by the Board of Equalization for St. Louis County for the subject tax day are SET ASIDE in part and AFFIRMED in part (as to the improved portion of the property in Appeal 11-11451).
The assessed value for the subject property in Appeal 11-11450 for tax years 2011 and 2012 is set at $40 – agricultural assessed value.
The assessed value for the subject property in Appeal 11-11451 for tax years 2011 and 2012 is set at $623,870 ($640 – agricultural assessed value; $623,230 – commercial assessed value).
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.
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 April 11, 2013.
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 11th day of April, 2013, to: Christopher Bauman, 120 South Central, Suite 1650, St. Louis, MO 63105, Attorney for 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, Acting Collector, County Government Center, 41 South Central Avenue, Clayton, MO 63105.
 None of the exhibits did in fact present any information or facts upon which the essential fact of the actual use of the contested land had been used. Therefore, they did not actually constitute rebuttal exhibits and should have properly been filed and exchanged as part of Respondent’s case in chief, albeit, none of the exhibits establish any other use for the property for the time relevant to 1/1/11 or 1/1/12.
 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)
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.
 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).
 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).
 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).
 Agriculture – the science or art of cultivating soil, harvesting crops – Black’s Law Dictionary, Seventh Edition, p. 69; the science and art of farming; work of cultivating the soil, producing crops – Webster’s New World Dictionary, Second College Edition, p. 27
 Section 137.016.5, RSMo provides a methodology for an examination of eight factors to establish the “immediate most suitable economic use” for real property that is “unused” or “for which a determination as to its classification cannot be made” under the statutory definitions. However, in those instances, such as the present case, where the evidence has established its actual use and the classification can then be made under the actual use of the property, there is no requirement, or even the option to ascertain the immediate most suitable economic use of the property.
 Section 137.017.1, RSMo – For general property assessment purposes, the true value in money of land which is in use as agricultural and horticultural property, as defined in section 137.016, shall be that value which such land has for agricultural or horticultural use.
Grade #2. These soils are less desirable in one (1) or more respects than Grade #1 and require careful soil management, including some conservation practices on upland to prevent deterioration. This grade has a wide range of soils and minimum slopes (mostly zero to five percent (0–5%)) that result in less choice of either crops or management practices. Primarily bottomland and best upland soils. Limitations— 1. Low to moderate susceptibility to erosion; 2. Rare damaging overflows (once in five to ten (5–10) years); and 3. Wetness correctable by drainage. Use value: eight hundred ten dollars ($810); See also, TR. 7:15 – 21; Exhibit A; Rebuttal Exhibit 1 (photos of subject).