Craig & Joy Bidner v. Zimmerman (SLCO)

 

CRAIG & JOY BIDNER,)

)

Complainants,)

)

v.                                                                           ) Appeal No.11-10134

)

JAKE ZIMMERMAN, ASSESSOR,)

ST. LOUIS COUNTY, MISSOURI,)

)

Respondent.)

 

DECISION AND ORDER

 

HOLDING

 

Decision of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.Complainants failed to present substantial and persuasive evidence to rebut the presumption of correct assessment by the Board of Equalization.

True value in money for the subject property for tax years 2011 and 2012 is set at $1,680,400, assessed value of $317,620 ($1,656,800, residential assessed value of $314,790, and $23,600, agricultural assessed value of $2,830).

Complainants appeared pro se.

Respondent appeared by Associated County Counselor, Paula J. Lemerman

Case heard and decided by Senior Hearing Officer W. B. Tichenor.

ISSUE

Complainants appeal, 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 residential portion of 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.Complainants 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 September 25, 2012, at the St. Louis County Government Center, 41 South Central Avenue, Clayton, Missouri.

3.Subject Property.The subject property is identified by locator number 21Y230046.The property is located at 1301 Wild Horse Creek Road, Wildwood, Missouri.A complete description of the property is provided in Exhibit 1.[1] Only the residential portion (3 acres and residential improvements) of the subject property is being appealed.[2]The home site is a part of a 89 acre farm and is located essentially in the center of the 89 acre tract.[3]

4.Assessment.The Assessor appraised the subject at a market value of $1,656,800, a residential assessed value of $314,790.[4]The Board sustained the assessment.[5]

5.Complainant’s Evidence.Complainants prefiled the following exhibits:

 

 

 

Mr. Bidner testified on behalf of Complainants and stated the owners’ opinion of value to be: $706,700.[6]Objection was made to Exhibits C, F, G through T, V and X.See, Rulings on Objections, infra.

There was no evidence of new construction and improvement from January 1, 2011, to January 1, 2012, therefore the assessed value for 2011 remains the assessed value for 2012.[7]

Complainants’ evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board.

6.Respondent’s Evidence.Respondent submitted the Appraisal Report (Exhibit 1), which was received into evidence, and the testimony of appraiser, Gerald D. Keeven Jr.[8]Mr. Keeven arrived at an indicated value under the cost approach of $2,251,400 and under the sales comparison approach of $2,680,000.However, Respondent’s appraisal could be accepted only to affirm the original assessment made by the Assessor and sustained by the Board and not for the purpose of raising the assessment above that value.See, Evidence of Increased Value, infra.Given that Complainants failed to meet their burden of proof it is not necessary to analyze or make a determination as to the persuasiveness of Respondent’s appraisal.

7.Inequitable Assessment Claim.Mr. Bidner’s testimony asserted his desire to be taxed as neighboring properties were taxes.In effect, the argument was one of inequitable assessment or discrimination.Although no such claim was set forth on the Complaint for Review of Assessment, the Hearing Officer permitted the testimony.The evidence failed to establish the claimed inequitable assessment or taxation.See, Complainants Fail To Prove Inequitable Assessment, infra.

CONCLUSIONS OF LAW AND DECISION

Jurisdiction

The Commission has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious.The hearing officer shall issue a decision and order affirming, modifying or reversing the determination of the board of equalization, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious.[9]

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.[10]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.[11]In an overvaluation appeal, true value in money for the property being appealed must be determined based upon the evidence on the record that is probative on the issue of the fair market value of the property under appeal.

Presumption In Appeals

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[12]This presumption is a rebuttable rather than a conclusive presumption.It places the burden of going forward with some substantial evidence on the taxpayer – Complainant.The presumption is not evidence of value.

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.[13]Complainants failed to present evidence which met the standard of substantial and persuasive to rebut the presumption that the Board value was correct, let alone, establish that the correct value as of 1/1/11 should have been $706,700.Accordingly, Complainants cannot prevail.See, Complainants Fail To Meet Burden Of Proof, infra.

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.[14]True value in money is defined in terms of value in exchange and not value in use.[15]It is the fair market value of the subject property on the valuation date.[16]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.[17]

 

The value proposed by the Bidners was not determined based upon the Standard For Valuation, but rather on the taxpayers’ perception of how their property was being assessed in relation to how other neighboring properties were being assessed.

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.[18]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.[19] Complainants did not present an opinion of value based upon any recognized appraisal methodology.

Complainants Fail To Meet Burden Of Proof

In order to prevail, Complainants must present an opinion of market value and substantial and persuasive evidence that the proposed value is indicative of the market value of the subject property on January 1, 2011.[20]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.”[21]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[22]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.[23]

Complainants’ Exhibits Received Into Evidence

Six of Complainants’ tendered exhibits were received into evidence.A review and analysis of those exhibits is appropriate to ascertain what, if any, probative value they provide to establish the Complainants’ opinion of value for their property.

Exhibit A:Assessor’s Website Information – Subject.The Exhibit provides no evidence to establish that the fair market value of the subject as of 1/1/11 would have been $706,700.

Exhibit B: Letter dated 7/12/11 to William Rudisale from Craig Bidner.This letter addresses the issue of the square footage of living area for the subject and sets forth Mr. Bidner’s arguments as to that issue.The Exhibit fails to provide any evidence which could establish a fair market value of $706,700.

Exhibit D:MultiList Service Data Sheet – 144 South Eatherton Rd.The Exhibit was admitted into evidence due to the fact that this sale was the fourth comparable in Exhibit 1.Respondent’s appraiser admitted that he had reviewed this and two other MLS listings on this particular property.The information contained in the Exhibit and the testimony elicited in cross-examination of Respondent’s witness provide no basis upon which the Hearing Officer can conclude the true value in money for the subject as of 1/1/11 to be $706,700 as proposed by the taxpayers.

Exhibit E: Assessor’s Website Information – 144 South Eatherton Rd.There is nothing in the Exhibit or any testimony relative thereto upon which the Hearing Officer can conclude the true value in money for the subject as of 1/1/11 to be $706,700.

Exhibit U: mapquest® – Map of 1301 Wild Horse Creek Rd.The exhibit provides a map for the approximate location of the Complainant’s farm.There was no factual dispute as to the location of the property under appeal.Accordingly, the Exhibit provides no information that is relative to any material fact in dispute.It does nothing to advance the inquiry as to whether or not a willing buyer and seller would have agreed to a purchase price of $706,700 for the subject property on 1/1/11.

Exhibit W:Change of Assessment Notice, dated 6/4/12.This notice shows an increase in the residential value of Complainant’s property from $1,656,800 to $1,676,800 for NEW CONSTRUCTION.[24]The exhibit is not probative as to a value for the residential portion of Complainants’ property of only $706,700.

Complainants’ Exhibits Excluded From Evidence

Complainants’ other exhibits were excluded from evidence upon objections posed by Counsel for Respondent being sustained.Accordingly, there is no probative weight which can be accorded any of these exhibits.None of these exhibits individually or collectively establish by an recognized appraisal methodology the true value in money of the Complainants’ residential property to be $706,700.

Exhibit C: MultiList Service Data Sheet – 1133 Pond Rd.Objection on the ground of hearsay and relevance was sustained.MLS sheets are the type of data which is reasonably relied upon by experts in appraisal of real property.They are hearsay and they generally will not fall under any hearsay exception.Accordingly, they are not generally received into evidence when offered by an owner.In those instances, where an appraiser has testified of his utilization of a given MLS sheet, then it will generally be accepted into evidence in a hearing before the Commission.

In the present case, Respondent’s appraiser did not use the property referenced in Exhibit C as a sales comparable.While an appraiser in a given appraisal problem on the subject might have elected to use this sale as a comparable, Respondent’s appraiser did not and Mr. Bidner not being an appraiser could not rely on it as a comparable to conclude value for his property.Furthermore, although Mr. Bidner did make reference to this property in his testimony, he failed to establish how the sale of this property established a value of $706,700 for the subject.

Exhibit F:Sales Flyer – 19203 Brookhollow Dr.Sales flyers or pamphlets on real property are also hearsay documents.They are subject to the same hearsay and relevance objection as was sustained as to Exhibit C.This particular property had not sold, accordingly, it would not have been used by an appraiser in developing a sales comparison approach to determine value of the subject or any other property.The flyer has no listing price.The document has no relevancy for establishing value.Mr. Bidner’s testimony on this Exhibit did not demonstrate how it established his proposed value of $706,700.

Exhibits G through R:Assessor’s Website Information on 14 Properties.Counsel for Respondent objected on the grounds of lack of foundation and relevancy.No foundation was laid that would establish that any recognized appraisal methodology would be developed relying on the appraised values for properties as established by the Assessor.There is no such approach to value.

Only two of the properties had sold at a time relevant to a 1/1/11 valuation, one selling for only $415,000, a 3,524 square foot home, and the other selling for $1,200,000.Mr. Bidner provided no testimony as to how he relied upon either of these properties to conclude a value for his home under any accepted appraisal methodology of $706,700.As to the other properties which had not sold, there was no testimony establishing that any of these properties had actually been used to conclude the value of $706,700.Instead, Mr. Bidner was attempting to use these properties to bolster his argument that his property was being assessed in an inequitable manner.The exhibits have no probative weight on the issue of what a willing buyer and seller would have agreed to as the purchase price for the subject property as of 1/1/11.They are irrelevant to establishing the fair market value of the subject.

Exhibit V:Mr. Bidner’s email to Respondent’s Counsel, dated 3/13/12:Objection on the ground of relevancy was sustained.The email, in large part, discusses the overall appeal process.This is not an issue on which the Hearing Officer can base his decision.It is a matter that is irrelevant to the issue pending before the Commission.

It is required that the parties be given an opportunity for hearing.[25] Complainants’ appeal has been conducted and processed as has all of the other pro se residential cases.That is the appeal was set for a prehearing and then an evidentiary hearing.The informal meetings prior to or after a prehearing are a matter between the taxpayer and the assessor’s staff.The overwhelming majority of pro se residential appeals do get settled out without the need of an evidentiary hearing.However, that is not true in all cases.It was not the case with Complainants’ appeal.Beyond the various complaints against the process that Mr. Bidner sets forth in his email, it is essentially an offer of settlement.Offers of settlement are not generally admissible in evidence.[26]The email is simply a self-serving statement and as such is not admissible.[27]

Exhibit X:Mr. Bidner’s letter, dated 8/15/12 to the Hearing Officer.Complainant submitted this letter with his other Exhibits in compliance with the Commission’s exchange order.[28]The Hearing Officer assumed that Mr. Bidner wanted it included as part of his case in chief and it was marked by the Hearing Officer as Exhibit X.The Hearing Officer assumed that it had been provided to Counsel for Respondent along with Exhibits A through W.However, it was determined at hearing that Mr. Bidner had not provided a copy of his correspondence to Respondent’s Counsel.Counsel for Respondent objected to the admission of the Exhibit on the grounds that it had not be timely exchanged in accordance with the Commission’s exchange order.Objection was sustained.

“Any party filing a written motion or other writing subsequent to the original complaint shall serve a copy of that writing upon the attorney of record for all remaining parties. …”[29]The reason for the rule is quite simple.It is to avoid ex parte communications with the Commission and the Hearing Officer.In addition, an exhibit that is not exchange in according with an exchange order is to be excluded from admission into evidence at the evidentiary hearing.[30]

Owner’s Opinion of Value

The owner of property is generally held competent to testify to its reasonable market value.[31]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[32]In the present appeal, Mr. Bidner testified that the opinion of the owners as to the fair market value of the subject as of 1/1/11 was $706,700.There was no further testimony to establish the basis or methodology on which the Complainants relied to arrive at the conclusion of value.At no time, did Mr. Bidner provide information that would establish that the concluded value proffered was the result of any accepted appraisal methodology.

A taxpayer does not meet his burden if evidence on any essential element of his case leaves the Commission “in the nebulous twilight of speculation, conjecture and surmise.”[33]In this instance, the Hearing Officer is left with nothing but speculation, conjecture and surmise as to how the $706,700 was concluded.Absent laying a foundation to establish that the concluded value is grounded in market data it has no probative worth.An unsubstantiated owner’s opinion constitutes nothing more or less than the owner’s speculation as to the worth of the property.Complainants failed to establish that their opinion of value was based upon proper elements and a proper foundation.Accordingly, the opinion has no probative value.

Discounting of Home Site

A part of the argument of Complainants is that the subject home site would only sell as a part of their entire farm.That is as a part of the entire 89 acres tract.This argument was made by Complainants at the prehearing conference when they met with the Hearing Officer and was also reaffirmed at the evidentiary hearing.The Hearing Officer does not disagree that as the property existed on 1/1/11 its most likely sale would have been as a part of the entire farm and not as a split-off from the farm.Although there was no evidence to establish that a sale of just the 3 acre home site would not have been possible.

The claim of a discounting is a point on which Complainants bore the burden to prove.In other words, simply because the argument was made, does not require the Respondent to disprove the claim.Only upon presentation of evidence from which the discounting claim can be established would the Respondent be presented with any burden of persuasion as to the need for or the amount of any alleged discounting.In other words, the raising of the argument does not establish the truth of the argument.It certainly does not establish how much any claimed discounting would have been under market conditions as of 1/1/11.Like the opinion of value advanced by the owners, on this point likewise, the Hearing Officer is presented with nothing but a claim based on speculation and conjecture, as opposed to sound hard evidence.In short, the argument is nothing more than an unproven theory.As such it has no probative value in the appeal.

Summary and Conclusion

Complainants failed to establish based upon substantial and persuasive evidence that the most probable price that a willing buyer and seller would have agreed to as the purchase price of their property on 1/1/11 would have been $706,700.Therefore, they did not carry their burden of proof and the presumption of correct assessment by the Board stands.

Complainants Fail To Prove Inequitable Assessment

In order to obtain a reduction in assessed value based upon a claim of inequitable assessment, also referred to as discrimination, the Complainants must (1) prove the true value in money of their property on January 1, 2011; and (2) show an intentional plan of discrimination by the assessing officials resulting in an assessment of their property at a greater percentage of value than other property, generally, within the same class within the same taxing jurisdiction.[34]Another way of putting it is that Complainants have the burden to prove the level of assessment for the subject property in 2011 as compared to the average level of residential assessment in St. Louis County.Establishment of an average residential assessment ratio different than the assessment ratio on the Complainants’ property for 2011 establishes the “intentional plan of discrimination” or inconsistency in assessment.

Evidence of value and assessments of a few properties does not prove a lack of consistency in property assessments.Substantial evidence must show that all other residential property in St. Louis County, generally, is actually undervalued.[35]The difference in the assessment ratio of the subject property and the average assessment ratio in the St. Louis county for residential property must be shown to be grossly excessive.[36]No other methodology is sufficient to establish discrimination.[37]

The required burden of proof for Complainants to make their case requires establishing the assessment ratio for their property and the mean and median assessment ratios for residential property in St. Louis County.First, the actual assessment ratio for the subject property must be established.By statute, residential property must be assessed at nineteen percent of its true value in money, also known as the appraised or fair market value.[38]The true value in money set by the Board for the subject property was $1,656,800.The assessed value was $318,590.This is an assessment ratio of 19% as required by law.[39]

To establish the assessment ratio for the subject property, Complainants had to independently determining the market value of the subject property and divide the market value into the assessed value of the property as determined by the assessor’s office.Complainants failed to establish by substantial and persuasive evidence the market value of the subject property.Therefore, no calculation can be made that would establish an assessment ratio different than the 19% as established by law.

The second part of making the inequitable assessment claim was for Complainants to prove the average level of assessment for residential property in St. Louis County for 2011.This is done by (a) independently determining the market value of a representative sample of residential properties in St. Louis County; (b) determining the assessed value placed on the property by the assessor’s office for the relevant year; (c) dividing the assessed value by the market value to determine the level of assessment for each property in the sample; and (d) determining the mean and median of the results.The difference between the actual assessment level of the subject property and the average level of assessment for all residential property, taken from a sufficient representative sample in St. Louis Countymust demonstrate a disparity that is grossly excessive.[40]

The claim of unfair taxation fails under this required point because Complainants did not establish the market values of a representative sample of residential properties in St. Louis County.The neighboring properties represented by Complainant’s excluded exhibits do not comprise a representative sample of residential properties in St. Louis County.Even if Complainant’s excluded exhibits had come into the record, they are totally inadequate to establish any assessment ratio other than 19%.This is due quite simply because no evidence was presented upon which a finding could be made that the appraised values given in the exhibits was not the fair market value for each of the properties.

Complainants’ inequitable assessment claim fails because they failed to establish the market value of their property.Without establishing their market value, they could not establish that their assessment ratio was at a level higher than 19%.However, even if Complainants had established a market value which would have shown that their assessment ratio was at a factor greater than 19%, their claim of inequitable assessment would still fail because they did not prove that a statistically significant number of other residential properties within St. LouisCountyare being assessed at a lower ratio of market value than their property.Because Complainants failed to establish the market value of their property and failed to establish that they are being assessed at a higher percentage of market value than a statistically significant number of other properties in St. Louis County, they failed to establish an inequitable valuation or inequitable taxation on their property.

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.[41]Under the Commission rule just cited and Supreme Court decision[42] the assessed value cannot be increased above $314,790 for the residential portion of the property under appeal or $317,620 for the Complainants’ entire property.

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 2011 and 2012 is set at $317,620 ($314,790 – residential and $2,820 – agricultural)

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 application for review is based will result in summary denial. [43]

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 October 3, 2012.

STATE TAX COMMISSION OFMISSOURI

_____________________________________

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 3^rd day of October, 2012, to:Craig Bidner, 1301 Wild Horse Creek Road, Wildwood, MO 63005, Complainant; Paula Lemerman, Associate County Counselor, Attorney for Respondent, 41 South Central Avenue, Clayton, MO 63105; Jake Zimmerman, Assessor, 41 South Central Avenue, Clayton, MO 63105; Eugene Leung, Director of Revenue, County Government Center, 41 South Central Avenue, Clayton, MO 63105.

___________________________

Barbara Heller

Legal Coordinator

Contact Information for State Tax Commission:

Missouri State Tax Commission

301 W. High Street, Room 840

P.O. Box 146

Jefferson City, MO 65102-0146

573-751-2414

573-751-1341 Fax