State Tax Commission of Missouri
Appeal Nos. 11-11394 & 11-11395
JAKE ZIMMERMAN, ASSESSOR,
ST. LOUIS COUNTY, MISSOURI,
DECISION AND ORDER
Decisions of the St. Louis County Board of Equalization reducing the assessment in Appeal 11-11394 and sustaining the assessment in Appeal 11-11395 made by the Assessor are SET ASIDE.Complainant presented substantial and persuasive evidence to rebut the presumption of correct assessments by the Board of Equalization and prove the true value in money of the properties under appeal.
True value in money for the subject property in Appeal No. 11-11394 for tax year 2011 is set at $4,651,500, commercial assessed value of $1,488,480.
True value in money for the subject property in Appeal No. 11-11395 for tax year 2011 is set at $598,500, commercial assessed value of $191,520.
True value in money for the subject property in Appeal No. 11-11394 for tax year 2012 is set at $6,822,200, commercial assessed value of $2,183,100.
True value in money for the subject property in Appeal No. 11-11395 for tax year 2012 is set at $877,800, commercial assessed value of $280,900.
Complainant appeared by Counsel, Paul F. Woody, Blitz, Bardgett & Deutsch, LC, 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 and discrimination, the decision of the St. Louis County Board of Equalization, which reduced the value of the property in Appeal Number 11-11394 and sustained the valuation of the subject property in Appeal Number 11-11395.The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2011 and 2012.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.Abandonment of Discrimination Claim.Complainant presented no evidence to establish a claim of discrimination or inequitable assessment ratio.Accordingly, that claim is deemed to have been abandoned.
3.Evidentiary Hearing.The Evidentiary Hearing was held on October 22, 2013, at the St. Louis County Government Center, Clayton, Missouri.
4.Identification of Subject Property.The subject property consists of two adjoining tracts of land they are identified by the locator numbers 23U620122 (11-11394) and 23U340435 (11-11395).The property is further identified as 114 and 140 Old State Road, Ellisville, Missouri.The two properties operate as a single economic unit.For purposes of this appeal the two properties are considered to be the subject property.
5.Description of Subject Property.The subject property consists of a 40.12 acres tract.It is improved by a 253,213 square foot building, with supporting parking, lighting and other amenities.A complete description of the property was presented in Complainant’s appraisal.
Appeal 11-11394: The Assessor appraised the property at $8,794,000, a commercial assessed value of $2,814,080.The Board of Equalization reduced the appraised value to $8,442,100, a commercial assessed value of $2,701,470.
The total appraised value set by the Board for the two properties was $9,531,000.
7.Allocation of Value.The percentage of the total value allocated to the property in Appeal 11-11394 is 88.6%.The percentage of the total value allocated to the property in Appeal 11-11395 is 11.4%.
8.Complainant’s Evidence.Complainant offered into evidence Exhibit A – Appraisal Report of Douglas A. Zink and Exhibit B – Written Direct Testimony – Douglas A. Zink.No objections or Rebuttal Exhibits were filed to Exhibits A or B by the deadline established by the Order Amending Exchange Schedule, dated 5/14/13.Exhibits A and B were received into evidence.
Complainant’s appraiser tendered an opinion of market value of the property as of 1/1/11 of $5,250,000. Complainant’s appraiser tendered an opinion of market value of the property as of 1/1/12 of $7,700,000.
9.Condition of Subject Property – 1/1/11.The subject building had significant floor damage and the office area was in shell condition as of 1/1/11.The renovation and construction costs as of the budget dated 12/30/10 was $2,753,973.
10.Condition of Subject Property – 1/1/12.The subject had been renovated at a reported cost of $4,363,961, bringing the improvements into an above average overall condition.As of 1/1/12 there were no reported items of deferred maintenance and no reported deferred maintenance items scheduled for repair.
11.Evidence of New Construction & Improvement.There was evidence of new construction and improvement from January 1, 2011, to January 1, 2012, therefore the assessed value for 2012 is based upon the true value in money of the subject property as improved on 1/1/12, under the economic conditions existing as of 1/1/11.
13.Presumption of Correct Assessment Rebutted.Complainant’s evidence was substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2011, to be $5,250,000, and the true value in money as of January 1, 2012, to be $7,700,000.See, Presumption In Appeal, Methods of Valuation, and Complainant Proves Value, infra.
14.Application of Allocation of Value.The application of the allocation of value in Finding of Fact 6 results in the value of the property in Appeal 11-11394 for tax year 2011 being $4,651,500; and $6,822,200 for tax year 2012.The application of the allocation of value in Finding of Fact 6 results in the value of the property in Appeal 11-11395 for tax year 2011 being $598,500; and $877,800 for tax year 2012.
15.Appeal 11-11394 – Assessed Values.The assessed value for the property in Appeal 11-11394 for tax year 2011 is $1,488,480.The assessed value for the property in Appeal 11-11394 for tax year 2012 is $2,183,100.
16.Appeal 11-11395 – Assessed Values.The assessed value for the property in Appeal 11-11395 for tax year 2011 is $191,520.The assessed value for the property in Appeal 11-11395 for tax year 2012 is $280,900.
17.Respondent’s Evidence.Respondent elected to not file any exhibits or rebuttal exhibits in accordance with the Orders setting the Exchange Schedule and Procedure.Respondent was therefore precluded from offering any evidence on the issue of fair market value
18.Respondent’s Offer of Proof.At hearing, Counsel for Respondent sought to offer into evidence Exhibits 1, 2, 3 & 4 during the cross-examination of Complainant’s expert.Objections were made by Counsel for Complainant.Objections were sustained.Counsel for Respondent tendered the Exhibits as an offer of proof.See, Respondent’s Offer of Proof, 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.The evidence presented in the appeal provides the basis upon which the constitutional mandate may be satisfied.The evidence presented by Complainant provides a solid foundation to ascertain the true value in money of the taxpayer’s property.
Presumption In Appeal
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.It does not prove value.The presumption simply acts to require the taxpayer as the moving forward to come forward with evidence on the issue of the fair market value of the property on the given assessment date or dates.
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.
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.
Upon presentation of the Complainants’ evidence the presumption in this appeal disappeared.The submission of the appraisal report, performed by a state certified real estate appraiser, established prima facie that the Board’s value was in error.The appraisal established what the fair market value that should have been placed on the property, as it was the only evidence in the record.No evidence was presented that rebutted the conclusion of value in Complainants’ appraisal.The case is decided free of the presumption and based upon the only evidence of value present in the record, i.e. conclusions of value as of 1/1/11 and 1/1/12 presented by Complainant’s appraiser.
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.True value in money is defined in terms of value in exchange and not value in use.It is the fair market value of the subject property on the valuation date.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.
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.
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.
The present case presents the Hearing Officer with the simple situation that the only evidence of value present in the record is that presented by Mr. Zink, Complainant’s appraiser.There is no countervailing evidence on the issue of fair market value of the property for which any analysis needs to be made.Accordingly, there is no basis upon which the Hearing Officer can logically reject the opinion presented by the appraiser.There is no basis whatsoever that would justify a finding that the Zink valuation should not be accepted.Therefore, the Hearing Officer is persuaded that plain logic and common sense dictate that the Zink appraisal must be accorded full persuasive weight and credit.
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.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. In the present appeal “The cost approach is not applicable due to the effective age of the improvements.The effective age of the improvements results in a significant amount of accrued depreciation, which the typical investor considers difficult to measure.As a result, investors typically do not rely on the cost approach.”Complainant’s appraiser properly elected to not utilize the cost approach for this appraisal problem.
The Zink appraisal concluded value after developing the sales comparison and income capitalization approaches.Both approaches were fully developed and explained, with supporting documentation in the report.The two approaches were then reconciled to conclude a value for the subject property as of 1/1/11 of $5,250,000 and as of 1/1/12 of $7,700,000.
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.By his education, training, knowledge, experience and skill, Mr. Zink is especially qualified as an expert on the appraisal of a property such as the subject.
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.The data upon which Mr. Zink based his opinions of value were of a type reasonably relied upon by experts in the field of commercial appraisal of properties such as the subject.The data was otherwise reliable.Therefore, it is appropriate for the Hearing Officer to place reliance upon and give due credence to appraisal and testimony of Mr. Zink to assist the trier of fact to understand the evidence and to reach a conclusion as to the fair market value of Complainant’s property as of 1/1/11 and 1/1/12.
Complainant Proves Value
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, 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 fair market value (true value in money) of the property under appeal is an unlawful, unfair and improper assessment, irrespective of whether there is any indication of arbitrary or capricious action in the assessment of the property.
The evidence clearly establishes that the subject property was not properly valued as of 1/1/11 and therefore, the assessment was in error.When the statutory assessment ratio of thirty-two percent for commercial property is applied to an appraised value that is excess of the market value of the property, its true value in money, the resulting assessment is unlawful in that it results in an assessment that would be in excess of thirty-two percent of the property fair market value.Such an assessment is unfair, in that the taxpayer’s property is then subject to a greater amount of taxes than is either allowed or required under the law for all commercial taxpayers.An assessment calculated based upon what is later demonstrated to be the assessor or board’s overvalued appraised value is likewise improper.It simply results in the assessment being in error, thus an improper assessment.
In the present appeal, Complainant came forward with substantial and persuasive evidence to satisfy the burden of proof.The Zink appraisal and testimony rebutted the presumption that the Board had properly and correctly assessed the properties under appeal.The concluded value for the subject property for both 2011 and 2012 stands in the record as unrebutted and to a certain extent uncontested, at least by any countervailing evidence on the issue of what a willing buyer and seller would have paid for the property as of 1/1/11 and 1/1/12.The Hearing Officer has no rational basis in this evidentiary record to simply turn a blind eye to Complainant’s evidence.That evidence must be viewed and it is viewed in the absence of any other evidence on the issue of fair market value.The Hearing Officer is not a liberty, if he is to carry out his responsibility as the trier of fact and concluder of law, to simply report that his “gut reaction” is that the Zink appraisal doesn’t properly find value.Because to arrive at such a conclusion could be based upon nothing more or less than an unfounded “gut reaction”.Such is never an appropriate foundation for making determines of value in cases before the Commission.To do so would be the height of speculation and conjecture, that the appraiser might have not gotten the value correct based upon the only valuation data in the record.That is the data which Mr. Zink brought to the hearing in the form of his appraisal.
In instances such as this when the taxpayer clearly fulfills its burden of proof and the Respondent elects to stand on the Board presumption, the Hearing Officer’s decision can only be driven by the plain evidence presented.Complainant met their burden and accordingly the assessment as set by the Board must be rejected and corrected in accordance with the valuation presented by Complainant’s appraiser.
The fair market value of the subject property as of January 1, 2011, was $5,250,000, and as of January 1, 2012, it was $7,700,000.
Untimely Objection and Tender of Rebuttal Exhibits
Respondent made no objections to either the Zink appraisal or testimony and tendered no rebuttal exhibits on or before 6/26/13.The Zink appraisal and written direct testimony were filed with the Commission and with Counsel for Respondent on 6/5/13.The general principle is well established that objections must be made and the basis for the objection indicated, at the earliest possible moment after it becomes apparent that a question is improper or that offered evidence is inadmissible.The Commission has for a number of years operated on the issuance of Exchange Schedules which set the deadlines for submission of both parties’ exhibits and written direct testimony to establish the respective cases in chief.The Exchange Schedules also provide specific deadlines for each party to submit objections and rebuttal exhibits, as well as response to objections and surrebuttal exhibits.This procedure has served the Commission, as well as the parties well, in that sufficient time is provided for each part to review the opposing party’s submissions and then tender such objections as the party may deem appropriate.
Applying the general principle of evidence, Respondent, upon receipt of Exhibits A and B, was on notice of what was being offered to establish the taxpayer’s case in chief.Respondent had until and including the 26th day of June, 2013 to make objections to this offered evidence.By failing to timely object under the Commission’s order, Respondent waived any right to object.Respondent had full opportunity, under the Commission’s Order, to object to Exhibits A & B and move to have them excluded, but failed to do so.Furthermore, at the opening of the hearing, the Hearing Officer read into the record the basic information relative to Complainant’s tendering of Exhibits A & B and Counsel for Respondent made no objection when the Hearing Officer stated that upon identification of Exhibit B by Mr. Sink, Exhibits A & B would be received into evidence, subject to cross-examination.Therefore, the objection, at the close of hearing, to exclude Complainant’s exhibits came too late.
In like manner, Respondent did not file any rebuttal exhibits.However, at hearing during cross-examination, Respondent attempted to have introduced as rebuttal documents Exhibits 1 through 4.There was no showing that these documents could not have been timely filed under the Exchange Order so that Complainant’s attorney would have had opportunity to object or tender surrebuttal exhibits.Under the Commission’s well-established practice, the failure to comply with the Exchange Schedule and submit what Respondent’s Counsel asserted to be rebuttal exhibits required exclusion of those documents.
Therefore, the objections of Complainant’s Counsel as to the attempt to both object at the close of hearing to Exhibits A & B and to attempt to introduce “rebuttal exhibits” were sustained at hearing.As a simply procedural matter, Respondent had no basis upon which to object to the introduction of Exhibits A & B or to offer documents under the guise of rebuttal exhibits at the evidentiary hearing.
Respondent’s Offer of Proof
After the Hearing Officer’s overruling the objection of Respondent’s Counsel to Exhibits A and B, and sustaining the objection to the attempt to introduce as rebuttal exhibits, Exhibits 1 through 4, Counsel for Respondent tendered Exhibits 1, 2, 3 & 4 as an “Offer of Proof.”Counsel for Respondent characterized the offer of proof as to Exhibits 1, 2 & 3 as seeking to establish that a part of the subject had been marketed at $12.00 per square foot.As to Exhibit 4, Counsel characterized the Exhibit as an offer of proof of taking official notice of the provisions of the Uniform Standards of Professional Appraisal Practice (USPAP) to support Respondent’s Objection that Exhibit A failed to comply with USPAP and therefore should be excluded.
Standards for Offers of Proof
When tendered evidence is refused, the proponent of that evidence has the burden of making an offer of proof.Making an offer of proof provides the Hearing Officer and opposing counsel as much information as possible concerning the proposed evidence, in order that counsel can take appropriate action and the Hearing Officer can make an informed decision about the admissibility of the tendered evidence.The burden to explain the theory of admissibility of the evidence is on the party seeking the evidence’s admission.An offer of proof is not itself evidence.To be a valid offer of proof, it must specifically and definitively show (1) what the proffered evidence will be, (2) its object and purpose, and (3) all the facts necessary to establish its relevance and admissibility.Generally oral testimony to be offered is presented by placing the witness on the stand and asking the proposed questions to obtain the tendered answers.Offers of proof in a narrative form of a summary of the proposed testimony by counsel can be permitted, so long as the offer does not include the conclusions of counsel.See, Courtroom Handbook on Missouri Evidence – 2013, Wm. A. Schroeder § 103.9, pp. 30-33 – citations omitted.
Applying Standards to Respondent’s Offer
A number of problems arise with the tendered offer of proof.There is no issue with what the proffered evidence was to be.It consists of four documents.However, there is significant deficiency in the object and purpose for which the documents were offered and the necessary facts to establish relevance and admissibility.
Exhibits 1 & 2
The first two documents (Exhibits 1 & 2) relate to a listing for sale of approximately 9 acres of undeveloped land, a part of which consists of a part of one of the two parcels which make up the subject property.Counsel for Respondent offered these to establish that a part of the subject had been offered at $12.00 per square foot.
The initial problem is that these documents are hearsay. Black’s defines hearsay as follows: “Traditionally, testimony that is given by a witness who relates not what he or she knows personally, but what others have said, and that is therefore dependent upon the credibility of someone other than the witness.Such testimony is generally inadmissible under the rules of evidence.”McCormick defines the term as; “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”The Courtroom Handbook on Missouri Evidence follows the definition given by the Federal Rules and cited by McCormick.The out of court statement can take the form of either oral or written assertions.Therefore, documents which make assertions of facts are hearsay, just as well, as the speech of another person.
The hearsay rule provides that “no assertion offered as testimony can be received unless it is or has been open to test by cross-examination or an opportunity for cross-examination, except as otherwise provide by the rules of evidence, by court rules or by statute.”The rationale behind the rule is quite simply that out of court hearsay statements are not made under oath and cannot be subject to cross-examination.Accordingly, when various documents, such as but not limited to, Internet, newspaper and magazine articles are offered as exhibits in a hearing before the Commission, unless the document falls within one of the exceptions to the hearsay rule, upon objection such must be excluded.
That is the case in this instance.Although appraisers may rely upon such information in the development of an appraisal, there was no such circumstance in this instance.There was no showing that Mr. Zink had in any form utilized the information contained in either Exhibit 1 or 2 in the writing of his appraisal.Nor was there any tender of an appraisal that had relied upon these documents.The documents were now shown in the offer of proof to come under any recognized exception to the hearsay rule.Therefore, in addition to the untimeliness of the offering of the exhibits, the documents had to be excluded as hearsay.
The second problem is there was no showing of relevance as rebuttal documents.Since Mr. Zink did not at any place in his appraisal attempt to make an allocation as to land value of the subject tracts either individually or collectively, the tendered listing exhibits rebut nothing.The principle of relevance is the second critical evidentiary factor that must be considered when testimony and documents are tendered for admission into an evidentiary record.For facts, information or opinions to be relevant they must be connected in a logical manner and tend to prove or disprove a matter that is at issue in the proceeding.McCormick explains that “There are two components to relevant evidence: materiality and probative value.Materiality looks to the relation between the propositions for which the evidence is offered and the issues of the case.If the evidence is offered to help prove a proposition which is not a matter in issue, the evidence is immaterial.. . .The second aspect of relevance is probative value, the tendency of evidence to establish the proposition that it is offered to prove.”Evidence, that tends to prove or disprove a fact that is at issue or of consequence, is relevant.
There was no fact in issue as to whether Mr. Zink had correctly valued a portion of the subject property’s land.Nor was there any fact in issue as to whether Mr. Zink had correctly valued the entire land of the subject property.Mr. Zink elected to not perform a cost approach which would have required a valuation of the subject land.There is no evidence in the record upon which it can be concluded that it was error to not develop the cost approach.To the contrary, the only evidence in the record is that the cost approach was in appropriate.No testimony was tendered with the offer of proof that would establish that in developing the income capitalization and sales comparison approaches that an appraiser must or even should estimate land value based upon a listing for sale of a small part of the property being appraised.Accordingly, Exhibits 1 and 2 have no relevance to the issue of the fair market value of the property under appeal.
Turning to Exhibit 3 (an aerial photograph of the subject), the document rebuts nothing.The photograph is simply duplicative of a photograph contained in Exhibit A.The document does not make any claim as to the value of the subject property.There was no supporting testimony tendered to establish how the duplicative photograph was relevant or how it rebutted any conclusion of fact made in either Exhibit A or B.Therefore, being untimely, duplicative and having no relevance as a rebuttal document it had to be excluded.
Standards Rule 1-5 states in relevant part – “When the value opinion to be developed is market value, an appraiser must, if such information is available to the appraiser in the normal course of business (a) analyze all agreements of sale, options, and listings of the subject property current as of the effective date of the appraisal.”There was no testimony offered to explain how that the Zink appraisal ran afoul of this Standard.Accordingly, there is no foundation that Exhibit A did in fact violate the rule.Absent the testimony of one qualified as an expert in the application of USPAP, the Hearing Officer cannot arbitrarily conclude a violation has occurred.In the present instance, the evidence is that Exhibit A was prepared in conformity with USPAP.Exhibit 4 does not rebut that evidence.
The Hearing Officer can, simply on the face of the Standard, readily conclude it is not applicable to the present appraisal problem.The Standard requires an analysis of a listing of the subject property current as of the effective date of the appraisal.The exhibits offered to establish a listing – Exhibits 1 and 2 do not provide listing information on the subject property.The subject property consists of just over 40 acres of land, with a 253,213 square foot industrial/warehouse building.The property offered for sale represented by Exhibits 1 and 2 is only a small fraction of the land included in the subject’s 40 acres.It is in fact an assemblage with another tract that is not part of the subject property.Therefore, Standards Rule 1-5 cannot cover the present appraisal since there is no information that the subject was listed for sale as of 1/1/11.Exhibit 4 is both untimely and irrelevant as a rebuttal exhibit or as a basis to have Exhibit A excluded as not being in compliance with USPAP.
The second part of Exhibit 4 was likewise untimely and irrelevant.The Question presented is simply whether an appraiser must “analyze listings of the subject that were current” at the time of the appraisal.Since there is no evidence that the subject was listed for sale as of 1/1/11, the Question is not applicable to the present appraisal problem.The Question did not address the listing of a minor undeveloped part of a much larger developed tract.
In summary and conclusion, the offer of proof as to Exhibit 4 failed to establish all the facts necessary to establish both the relevance and the admissibility of the document.There is nothing to show that Mr. Zink in any fashion in his appraisal of the subject property was not in compliance with USPAP.
The assessed valuations for the subject properties as determined by the Assessor and reduced and sustained by the Board of Equalization for St. Louis County for the subject tax day are SET ASIDE.
The assessed value for the subject property in Appeal No. 11-11394 for tax year 2011 is set at $1,488,480.
The assessed value for the subject property in Appeal No. 11-11395 for tax year 2011 is set at $191,520.
The assessed value for the subject property in Appeal No. 11-11394 for tax year 2012 is set at $2,183,100.
The assessed value for the subject property in Appeal No. 11-11395 for tax year 2012 is set at $280,900.
Application for Review
A party may file with the Commission an application for review of this decision within thirty days of the mailing date set forth in the Certificate of Service for this Decision.The application shall contain specific facts or law as grounds upon which it is claimed the decision is erroneous.Said application must be in writing addressed to the State Tax Commission of Missouri,P.O. Box 146,Jefferson City,MO65102-0146, and a copy of said application must be sent to each person at the address listed below in the certificate of service.
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 December 17, 2013.
STATE TAX COMMISSION OFMISSOURI
W. B. Tichenor
Senior Hearing Officer
 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 1201Substantial 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.
 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)
 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.
 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)
 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).
 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).
 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)
 In rare instances, there are been occasions when during cross-examination a witness will testify to a matter which provides the ground for an objection at trial for the exclusion of evidence which had previously not been object to.Such instances are the exception and no such testimony was presented during cross-examination which triggered any basis for objection to the admission of Exhibits A and B.
 Exhibit 1 consists of a Flyer from NAIDESCO on the listing of a 9 acre + Development Site at 16102-16110 Manchester Rd., Ellisville and an Aerial View of the general area of the listing; Exhibit 2 is listing data from CoStar Property on this same listing.