State Tax Commission of Missouri
CHRISTOPHER J. BECKER,)
)
Complainant,)
)
v.)Appeal Number 09-10545
)
MICHAEL BROOKS,)
ACTING ASSESSOR,)
ST. LOUIS COUNTY, MISSOURI,)
)
Respondent.)
ORDER
AFFIRMING HEARING OFFICER DECISION
UPON APPLICATION FOR REVIEW
On July 27, 2010, Senior Hearing Officer W. B. Tichenor entered his Decision and Order (Decision) affirming the assessment by the St. Louis County Board of Equalization for 2009 at $278,900, true value in money, residential assessed value of $52,990 and setting the true value in money for 2010 at $293,900, residential assessed value of $55,840, based upon new construction and improvement during the calendar year 2009.
Complainant filed his Application for Review of the Decision.Respondent filed his Response.
CONCLUSIONS OF LAW
Standard Upon Review
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.[1]
The Hearing Officer as the trier of fact may consider the testimony of an expert witness and the owner 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 or owners who testify on the issue of reasonable value, but may believe all or none of the expert’s or owner’s testimony and accept it in part or reject it in part.[2]
The Commission will not lightly interfere with the Hearing Officer’s Decision and substitute its judgment on the credibility of witnesses and weight to be given the evidence for that of the Hearing Officer as the trier of fact.[3]
DECISION
Errors Alleged
Complainant alleges five points of error on the part of the Hearing Officer.Those five points are:
1.The Hearing Officer erred in finding true value in money of $293,900 for tax year 2010, in that the issue in the appeal was overvaluation of the property for the tax year of 2009.
2.The Hearing Officer erred in considering an uncompleted deck as new construction and improvement to increase the value of the 2010 assessment.
3.The Hearing Officer erred in not giving notice that the issue of valuation of the deck would be part of the hearing in the appeal.
4.The Hearing Officer erred in finding the value of the deck based on the testimony of the Respondent’s expert witness.
5.The Hearing Officer erred in not following section 138.060 (1) and allowing Respondent to present evidence of a valuation for 2010 which was higher than the value for 2009.
The Commission will address each of the points raised in order.
Finding Value for 2010
Complainant’s first allegation of error is that the Hearing Officer erred in finding true value in money for the 2010 tax year, because the issue in the appeal was overvaluation of the property for the tax year of 2009. Complainant does not have a proper understanding of the assessment process in Missouri.Missouri operates under a two-year assessment cycle.The assessor is required to assess all property as of January 1 of each odd-numbered year.That value remains as the value for the following even-numbered year.However, in the case of new construction and improvement during an odd-numbered year, the assessment for the following even numbered year must be made taking into account the added value of the new construction and improvement.[4]Therefore, in those instances where new construction and improvement is made to a property during an odd-numbered year, the assessed value for the odd-numbered year and even-numbered year will be different, reflecting the added value of the improvement.
The Hearing Officer explained during the evidentiary hearing the statutory requirement to assess new construction and improvements.[5]The Hearing Officer properly addressed the fact that the subject home had been improved during 2009 by the addition of a new deck and patio.[6]It would have been error for the Hearing Officer to not have found value for each year, as mandated by the statute.
Uncompleted Deck
Complainant next contends the Hearing Officer erred in considering an uncompleted deck as new construction and improvement to increase the value of the 2010 assessment.Complainant argues that the deck was not completed as of December 31, 2009.However, when questioned by the Hearing Officer Mr. Becker testified the deck was “finished in the fall of 2009.”[7]Mr. Froeckmann’s appraisal noted that the multilevel deck on the rear of the subject shown in the photographic addendum did not exist as of the effective date of the appraisal – January 1, 2009.[8]The testimony of Mr. Froeckmann in direct examination as to the status of the deck as of January 1, 2010, was as follows:[9]
“Q (Ms. Lemerman).Okay.Was it your understanding the deck was there on January 1, 2010?
A.I’m trying to recall.I looked at the permits to discover whether – what the progress was on the deck, and it was not competed (sic) as of January 1st.I can say that much.Of 2009.
Q.Of 2009?
A.Right.And –
Q.What about 2010?
A…a problem like this—There were—It was near completion.There were some—He’s got, it looks like vinyl coverings over the posts that were not complete on my visit.”
The appraiser then testified in response to the Hearing Officer’s inquiry:[10]
“Q (S.H.O. Tichenor)You have opined a value without the deck of $280,000.Do you have an opinion as to what the opinion of the property would have been on January 1, 2009, if the deck had been in place as you observed it at that time?
A.No, I don’t have a figure on that.
Q.All right.Thank you.
A.Upon the—my visit, the deck appeared not to be complete.And that was in the—
Q.But in the condition that it—
A.–2010.
Q.–was there?
A.The majority of the deck is there, correct.Or, was there at the time of my visit.
Q.I understand—I understood your testimony that there was still some trim work or something, as far as completion of it.
A.Yes.
Q.Okay.And you—you have no opinion as to what that would add to the value—what the market would—
A.Oh—
Q.–would recognize as it sat as you observed it? And I—I may not have stated my question clear enough.
A.Well, I think the cost is greater than what it contributes to value, according to the market.
Q.And the hearing office thinks that also.
A.And—
Q.The hearing officer has his own opinion that—that the amount paid for it does not reflect.It–It’s more than what the market would bear.But the hearing officer is interested in youhaving seen the deck, is whether or not, based upon your experience and your observation, knowing that it was a $20,000 addition, but I think you are in agreement with the hearing officer that the market is not going to recognize it as 20,00, that it will be something less than that.And that’s—
A.Correct.
Q.–that’s what I’m asking.Have you formulated an opinion as you sit here today that you could testify to, with a reasonable degree of appraisal certainty?
A.It would be greater than the—the comparable 2 adjustment—
Q.Because it’s got a deck, doesn’t it?
A.It has a deck, and it’s cot a smaller porch.Not that great of a porch—
Q.And you adjusted—
A.It would be between 12 and 15 thousand contributory value for this deck.
Q.Okay.
A.And also included is a patio below that is new.
Q.Okay.
A.So I would say 15,000 for both.”
Mr. Becker did not cross-examine the witness on the matter of the contributory value of the deck.Nor did Complainant seek to offer any further testimony on this matter.By the owner’s own admission the deck project was “finished in the fall of 2009.”The Hearing Officer acted properly in taking the taxpayer at his word.The additional testimony of Respondent’s appraiser only addressed what was apparently de minimus trim work yet to be done at the time of Mr. Froeckmann’s visit.The Hearing Officer properly attributed the additional value to the subject home for 2010 based upon the fact that the deck and patio were complete, but for some trim work.Even without the trim work, the new construction added value to the subject property as of January 1, 2010.The law requires that the addition of the deck and patio be accounted for, as the Hearing Officer did.
Notice on Valuation of Deck
The third argument advanced by Complainant asserts error on the part of the Hearing Officer erred in not giving notice that the issue of valuation of the deck would be part of the hearing in the appeal.There is no way the Hearing Officer can know in advance of the evidentiary hearing whether the issue of new construction and improvement during an odd- numbered year will arise.The Hearing Officer only became aware that in fact there had been new construction and improvement to the subject house when he made his inquiry on this matter early in the examination of the owner.[11]It is the understanding of the Commission this is a routine question posed by Hearing Officers as they need to determine if the value for the odd numbered year is to remain the same for the even numbered year.
There is no statutory or regulatory requirement that the Commission or a Hearing Officer prior to the evidentiary hearing provide some notice to the Complainant that the value of the property may be increased for the even-numbered year based upon new construction and improvement.Section 137.115 as previously discussed provides notice to all citizens that the assessment process requires a change in value from the odd-numbered year to the even-numbered year when new construction and improvement occurs.Furthermore, Commission rule on the two-year assessment cycle also provides such notice.[12]
The Order setting the evidentiary hearing in this appeal, as in all appeals before the Commission, states: “It is possible the assessment might remain the same, be lowered, or raised.”[13]The was no error on the part of the Hearing Officer in not providing some notice to the owner prior to the evidentiary hearing of the statute and regulations regarding the two-year assessment cycle and the impact on value for an even-numbered year from new construction and improvement to a property.
Value of Deck
Complainant’s next claim of error is the reliance of the in finding the value of the deck based on the testimony of the Respondent’s expert witness.The owner’s testimony established that $20,000 had been spent on the deck.The examination by the Hearing Officer of Mr. Froeckmann referenced above is clear that the Hearing Officer was seeking the expert’s opinion based upon his knowledge that $20,000 was the cost of the improvement.Furthermore, the expert had just testified as to his sales comparison approach in which two of his comparables required adjustments for having a deck and/or patio.
The law in Missouri on opinions of experts provides that 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.[14]Mr. Froeckmann had data which had been received into evidence from the owner’s testimony establishing the cost of the improvement.This is the type of information reasonable relied upon by appraisers in both valuing the contributory value of various amenities to homes, but also for making adjustments between a property being appraised and comparable sale properties.In addition, the appraiser had the information from his investigation of his sale comparables.The appraiser, in the judgment of the trier of fact, was qualified to render an opinion as to the contributory value of the improvement to the property under appeal.
It was entirely proper for the Hearing Officer to make his inquiry of Mr. Froeckmann on this matter.[15]It was not required that a written addendum to Exhibit 1 be provided to establish the opinion of the appraiser regarding this matter.Nor was it necessary that the Hearing Officer recess the hearing to permit Mr. Froeckmann to adjust his sales comparison grid to establish a value as of January 1, 2009, with the new construction taken into account.The Hearing Officer inquired as to the expert’s opinion “within a reasonable degree of appraisal certainty.”The appraiser determined he could give his expert opinion.The trier of fact could then accept or reject that opinion, or accept it in part and reject it in part.[16]The Commission finds no abuse of discretion on the part of the Hearing Officer in concluding the contributory value of the 2009 new construction based upon the opinion of Respondent’s expert.
Evidence of Higher Value for 2010
Complainant finally asserts that under Section 138.060(1) the Hearing Officer should not have allowed Respondent to present evidence of a valuation for 2010 which was higher than the value for 2009.Section 138.060(1) provides in relevant part:
“At any hearing before the state tax commission … of an appeal of assessmentfrom a first class charter county … , the assessor shall not advocate nor presentevidence advocating a valuation higher than that value finally determined by theassessor or the value determined by the board of equalization, whichever ishigher, for that assessment period.”
The Hearing Officer addressed this for the 2009 valuation and followed the mandate of the Commission rule and the Supreme Court of Missouri decision on the matter.[17]The Hearing Officer, in fact, found Respondent’s evidence to be substantial and persuasive to establish a value $1,100 above the Assessor and Board’s appraised value.However, the assessed value of $52,990[18] for tax year 2009 was affirmed.
Section 138.060 must be read along with the required procedure established by Section 137.115 on the two-year assessment cycle and the valuation in even numbered years of new construction and improvements.The two statutes are not in conflict, nor does Section 138.060 prevent the Commission from carrying out its constitutional[19] and statutory mandate to value property for both the odd- and even-numbered years taking into account any new construction and improvement during an odd-numbered year.In point of fact, neither the Assessor, nor the Board had properly valued the property for 2010, because there had been no accounting for the improvement which had been made to Mr. Becker’s home.There was, of course, no way during the time period when either the Assessor or the Board was reviewing the valuation in the spring and summer of 2009, that they could have known of the improvement that would be in place on the home in January 2010.Therefore, there was no 2010 value finally determined.
The evidence of a value for 2010 higher than the 2009 value established by the Assessor and the Board came from Complainant’s testimony.Had Respondent elected to present a supplemental appraisal for 2010 valuing the Complainant’s property as of January 1, 2009, with the deck improvement in place at a value higher than $278,900, it would have been proper.That would not have run afoul of Section 138.060.The property valued for 2010 was a different property due to the new construction and improvement than the property that existed on
January 1, 2009.The Hearing Officer did not violate Section 138.060 by inquiring as to new construction and improvement to the Complainant’s property and then concluding a value for the 2010 tax year based upon the simple fact that an improvement had been made that contributed value to the property.
Conclusion
A review of the record in the present appeal provides support for the determinations made by the Hearing Officer.There is competent and substantial evidence to establish a sufficient foundation for the Decision of the Hearing Officer.A reasonable mind could have conscientiously reached the same result based on a review of the entire record. 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 in this appeal.[20]
The Hearing Officer did not err in his determinations as challenged by Complainant.
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.The Decision and Order of the hearing officer, including the findings of fact and conclusions of law therein, is incorporated by reference, as if set out in full, in this final decision of the Commission.
Judicial review of this Order may be had in the manner provided in Sections 138.432 and 536.100 to 536.140, RSMo within thirty days of the mailing date set forth in the Certificate of Service for this Order.
If judicial review of this decision is made, any protested taxes presently in an escrow account in accordance with this appeal shall be held pending the final decision of the courts unless disbursed pursuant to Section 139.031.8, RSMo.
If no judicial review is made within thirty days, this decision and order is deemed final and the Collector of St. Louis County, 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.
SO ORDERED November 15, 2010.
STATE TAX COMMISSION OF MISSOURI
Bruce E. Davis, Chairman
Jeff W. Schaeperkoetter, Commissioner
DECISION AND ORDER
HOLDING
Decision of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.True value in money for the subject property for tax year 2009 is set at $278,900, residential assessed value of $52,990.True value in money for the subject property for tax year 2010 is set at $293,900, residential assessed value of $55,840.Complainant appeared pro se.Respondent appeared by Associate County Counselor, Paula J. Lemerman.
Case heard and decided by Senior Hearing Officer W. B. Tichenor.
ISSUE
Complainant appeals, 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, 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 July 6, 2010, at the St. LouisCountyGovernmentCenter,Clayton,Missouri.
2.Assessment.The Assessor appraised the property under appeal at $278,900, assessed residential value of $52,990.The Board of Equalization sustained the assessment.[21]
3.Subject Property.The subject property is located at 207 Palisades Ridge Court, Eureka, Missouri.The property is identified by locator number 30V230164.The property consists of an approximately 12,197 square foot lot improved by two-story vinyl-sided frame constructed house with full basement, two-car attached frame garage, open front porch, paved walkway, and a paved driveway leading to the front entry garage.The improvements are considered to be average quality construction.The home was built in 2005 and the improvements are assumed to be in average condition for the neighborhood.No apparent deferred maintenance items are noted.The residence has a total of eight rooms above grade that includes three bedrooms, two full baths, one half bath, and contains 2,766 square feet of living area.The full basement is approximately 1,203 square feet and has no finished areas.The site is generally level to the house front, slopes mildly downward to the rear of the house, levels to allow a patio size area across the rear, then slopes steeply downward to the rear lot line.[22]The property was purchased in October 2005 for $360,619.[23]
4.Complainant’s Evidence.Mr. Becker testified in his own behalf.He gave his opinion of value for the subject property as of January 1, 2009, to be $240,000.This opinion of value was arrived at by a comparison of the Assessor’s per square foot appraised values of the five properties used by the computer assisted mass appraisal system that appeared on the Complainant’s Change of Assessment Notice, dated 5/15/09.[24]
The following exhibits were offered into evidence.[25]
|
EXHIBITS |
DESCRIPTION |
DISPOSITION |
|
A |
2009 Change Notice |
Objection – Sustained/Excluded |
|
B |
Objection – Sustained/Excluded |
|
|
C |
PRC – 231 Palisades |
Objection – Sustained/Excluded |
|
D |
PRC – 10 Palisades |
Objection – Sustained/Excluded |
|
E |
PRC – 540 Forby Estates |
Objection – Sustained/Excluded |
|
F |
PRC – 508 Forby Estates |
Objection – Sustained/Excluded |
|
G |
PRC – Froeckmann Comps |
Received |
|
H |
PRC – 3 properties – |
Objection – Sustained/Excluded |
Complainant did not present an opinion of the true value in money for the subject property as of January 1, 2009, based upon a recognized valuation methodology.[27]Therefore, Complainant’s evidence 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 $240,000, as proposed.
5.New Construction and Improvement. A deck and patio were added to the property during 2009 at a cost of more than $20,000.[28]This constitutes new construction and improvement to the property.Accordingly, the property must be valued for tax year 2010 under the economic conditions existing on January 1, 2009, and as if the new deck and patio had been in place at that time.[29]The market will not generally recognize such an improvement on a dollar for dollar basis.Respondent’s appraiser was of the opinion that the new construction and improvement added $15,000 in value to the subject.[30]
6.Respondent’s Evidence.Respondent presented the appraisal report[31] and testimony of Arthur Froeckmann.The appraiser developed both the cost and sales comparison approaches to value.The cost approach produced an indicated value of $288,200.[32]The sales comparison approach provided an indicated value of $280,000.[33]Mr. Froeckmann’s final opinion of value for the subject property as of January 1, 2009, was $280.000 relying on the sales comparison approach.Exhibit 1 and Exhibit 2, an aerial photograph of the subject property and neighboring properties, were received into evidence.
The properties relied upon by Respondent’s appraiser, in developing the sales comparison approach, were comparable to the subject property. The properties were located within .85 of a mile to 1.31 miles of the subject.[34]Each sale property sold at a time relevant to the tax date of January 1, 2009.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.
Respondent’s evidence met the standard of substantial and persuasive to establish the value of the subject, as of January 1, 2009, to be $280,000.However, Respondent’s appraisal was accepted only 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.Respondent meet the standard of clear, convincing and cogent evidence in this appeal to sustain the original valuation of $278,900.
7.Conclusion of Value.The true value in money for the subject property as of January 1, 2009 was $278,900, assessed value of $52,990.[35]The true value in money for the subject property as of January 1, 2010, was $293,900, assessed value of $55,840.[36]
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.[37]
Presumption In Appeals
There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[38]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.[39]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.[40]Upon presentation of the Complainant’s evidence[41] the presumption in this appeal disappeared.The case is decided free of the presumption.
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.[42]True value in money is defined in terms of value in exchange and not value in use.[43]It is the fair market value of the subject property on the valuation date.[44]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.[45]
Respondent’s appraiser developed his appraisal under the Standard for Valuation.[46]The value proposed by Mr. Becker did not conform to the Standard for Valuation.
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.[47]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.[48] Complainant failed to present an opinion of value which was based upon any of the recognized methodologies for the appraisal of real property for ad valorem tax purposes.Respondent’s appraiser developed both the cost and sales comparison approaches to arrive at his conclusion of value.
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, 2009.[49]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.”[50]
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[51]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.[52]
Owner’s Opinion of Value
The owner of property is generally held competent to testify to its reasonable market value.[53]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[54]Mr. Becker opined a value as of January 1, 2009, of $240,000 based upon his calculation of a per square foot value for the five properties listed on the change of assessment notice.The per square foot values were not based on the actual sales prices, but on the appraised values placed on the five properties by the Assessor’s mass appraisal system.This is not a recognized methodology for the appraisal of real property.This method is not recognized by the Commission or Missouri Courts for valuation of real property for ad valorem tax purposes.Therefore, the owner’s opinion was not based upon proper elements or a proper foundation.No probative weight can be given to it.Mr. Becker’s testimony as to his opinion of value fails to meet the standard to substantial and persuasive evidence to rebut the presumption of correct assessment by the Board.
Ruling on Exhibits
Exhibit A – Change Notice
The change notice only provides evidence that the mass appraisal system utilized in St. Louis County selected five sales comparables to value the property at $278,900 for the 2009-2010 assessment cycle.Taxpayers often mistakenly assume that by attacking the comparables the computer selected that this will show the Assessor’s value to be in error.Such an approach does not qualify to provide substantial and persuasive evidence by the Complainant to actually establish the value proposed.
Counsel for Respondent’s objection on the ground of relevancy was sustained.Accordingly the exhibit was excluded from evidence in the appeal.The exhibit has no relevancy to establish Complainant’s proposed value of $240,000.In point of fact it rebuts that value.Furthermore, it is not relevant as a rebuttal exhibit, since Respondent’s appraisal was not based on either the computer generated mass valuation system or any of the five comparables that were selected by the computer for the mass valuation of the subject property.Exhibit A has no probative value for either Complainant’s case in chief, or as part of a rebuttal case.
Exhibits B – F – PRC’s on Comps in Exhibit A
Counsel for Respondent objected to Exhibits B through F on the grounds of relevancy.The objection was sustained and the exhibits were excluded from evidence.These exhibits are the Property Record Cards on each of the five comparables selected by the computer for the mass valuation of the Complainant’s property.
Mr. Becker determined that he would utilize his own valuation system relying on these properties.He calculated per square foot appraised value, not the per square foot sale value, for each property.This resulted, according to Complainant’s calculations, in respective per square foot appraised values of $109.43, $139.44, $105.57, $112.55 and $118.35.When applying these figures to the subject, they produce a range of values from $292,000 to $385,690.For each of the properties, the taxpayer provided a list of items of difference between the subject property and each comparable.However, nothing was provided to demonstrate how relying on these five properties appraised value the Complainant arrived at a value of only $240,000.
No foundation was laid to establish that the system being employed was an acceptable appraisal methodology.It is not.Therefore, the documents and the conclusions which Mr. Becker attempted to draw from them lack any relevance to establish the true value in money of the property under appeal.
Exhibit G – PRC’s on Froeckmann’s Comps & Two Other Properties
This exhibit consists of property record cards on five properties.The first three of these properties were used by Respondent’s appraiser in developing his sales comparison approach. No objection was made by Ms. Lemerman to this exhibit so it was received into the record.The fact that the exhibit was received into the record does not establish that it constitutes substantial
and persuasive evidence to rebut the presumption of correct assessment and prove a value of $240,000.
Mr. Becker relied upon these five properties to once again calculate per square foot appraised value for each property.The resulting per square foot values, as per Complainant’s calculations, were, $90.92, $99.44, $99.22, $101.67 and $99.37.These values, when applied to the subject’s 2,766 square feet of living area, produce indicated rounded values of:$251,480, $275,050, $274,440, $281,220 and $274,860.Mr. Becker also lists for each of these properties certain items of difference with the subject.However, no adjustments for any differences are provided.
The same fatal defect which is applicable to Exhibits B through F is applicable to this Exhibit.Complainant seeks to use his per square foot appraised value system to conclude value.The system is not an acceptable appraisal methodology.It has no probative value to establish fair market value.The values do not support a value of $240,000.
It is not the Hearing Officer’s responsibility to make adjustments to arrive at an adjusted value.Mr. Becker did not establish that he has any expertise in the appraisal of real property to either select appropriate sales properties for comparison, or to make appropriate adjustments to comparable properties.The failure to rely upon actual sales prices and utilization instead of the computer mass valuation system appraised values renders the Exhibit and any conclusions drawn by the taxpayer therefrom as completely lacking in substantive and persuasive evidentiary value.
Exhibit H – PRC’s on Complainant’s Comps
Objection was made on the ground of relevance.The objection was sustained and the exhibit was excluded from evidence.The exhibit consists of property record cards on three properties.Mr. Beck applied the same methodology as he did to the properties in Exhibits B through G.Accordingly, the same fatal flaw addressed above in relation to those exhibits and the conclusions presented by Mr. Becker exists as to this exhibit.It is not a recognized and accepted approach to the appraisal of real property.The calculations of per square foot appraised values have no probative value in this appeal.Any opinion of value based on the Assessor’s appraised values for these three properties does not constitute substantial and persuasive evidence of the fair market value of the subject property.The exhibit and Mr. Becker’s testimony related to it fails to rebut the presumption of correct assessment by the Board.
Summary and Conclusion
Complainant has failed to meet his burden of proof.The value established by the Board stands as not rebutted.
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.[55]The evidence presented by the Respondent was substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the fair market value of the property under appeal, as of January 1, 2009, to be $280,000.However, under the Commission rule just cited and Supreme Court decision[56] the assessed value cannot be increased above $52,990 in this particular appeal.
Respondent Proves Value
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 $278,900, 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.[57]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.[58]
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.[59]The quality of proof, to be clear and convincing must be more than a mere preponderance but does not require beyond a reasonable doubt.[60]“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.”[61]
It is generally recognized that the sales comparison approach provides the best indicator of value for owner occupied residential properties where sufficient sales data exists for performing the appraisal.The conclusion of value placing greatest reliance on the sales comparison approach was well supported.In this instance, the appraiser had data to support the development of both the cost and sales comparison approaches to value.Both the gross and net percentages of adjustments under the sales comparison approach fell within a narrow and well accepted range.This provides a check on and substantiation of the comparability of the sale properties to the subject.The appraisal report and supporting testimony of Mr. Froeckmann meets the required statutory standard of clear, convincing and cogent evidence to sustain the valuation of $278,900.
ORDER
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 AFFIRMED.
The assessed value for the subject property for tax years 2009 and 2010 is set at $52,990.
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.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 appeal is based will result in summary denial. [62]
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 July 27, 2010.
STATE TAX COMMISSION OFMISSOURI
W. B. Tichenor
Senior Hearing Officer
[1] 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).
[2] 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).
[3] Black v. Lombardi, 970 S.W.2d 378 (Mo. App. E.D. 1998); Lowe v. Lombardi, 957 S.W.2d 808 (Mo. App. W.D. 1997); Forms World, Inc. v. Labor and Industrial Relations Com’n, 935 S.W.2d 680 (Mo. App. W.D. 1996); Evangelical Retirement Homes v. STC, 669 S.W.2d 548 (Mo. 1984); Pulitzer Pub. Co. v. Labor and Indus. Relations Commission, 596 S.W.2d 413 (Mo. 1980); St. Louis County v. STC, 562 S.W.2d 334 (Mo. 1978); St. Louis County v. STC, 406 S.W.2d 644 (Mo. 1966).
[11] TR. 5:6-8 – “In the time period from January 1, 2009 through December 31,2009, was there any new construction or improvement, remodeling, addition of a room, or rehabbing?”
[12] 12 CSR 30-3.001 (1):The assessed value of real property shall be calculated by determining its true value in money on January 1, of each odd-numbered year.The value shall remain the same for the subsequent even-numbered year unless there has been new construction or property improvements between January 1, of the odd-numbered year and January 1, of the following even-number year. (2): In those instances in which new construction or property improvements have occurred between January 1 of an odd-numbered year and January 1 of an even-numbered year, the true value in money of the property as newly constructed or improved shall be determined as of January 1, of the odd-numbered year. (A)The valuation of the property shall take into consideration the new construction or property improvements and shall assign to that new construction or property improvement the value which would have been attributed to new construction or improvements on January 1 of the odd-numbered year as though they had existed on that date.”
[14] 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).
[15] Section 138.430. 2. RSMo.“In order to investigate such appeals, the commission may inquire of the owner of the property or of any other party to the appeal regarding any matter or issue relevant to the valuation, subclassification or assessment of the property. The commission may make its decision regarding the assessment or valuation of the property based solely upon its inquiry and any evidence presented by the parties to the commission, or based solely upon evidence presented by the parties to the commission.”
[20] 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); Phelps v. Metropolitan St. Louis Sewer Dist., 598 S.W.2d 163 (Mo. App. E.D. 1980).
[34] Comparables # 2 and #3 are located over the preferred 1 mile distance from the subject due to the lack of development around the subject’s immediate area.Exhibit 1, page 3 of 3
[36] TVM of $278,900 for 1/1/09 plus value for the addition of the patio/deck – $15,000 = $293,900 x .19 = $55,841, rounded to $55,840.
[38] 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)
[39] 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.
[40] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959)
[42] 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).
[43] 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).
[45] 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.
[47] 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).
[48] 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).
[50] 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).
[53] 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).
[54] 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).
[56] 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 SW3d 80, 87-88 (Mo 8/4/09)