Crescent Farms West v. Zimmerman (SLCO)

 

CRESCENT FARMS WEST,)

)

Complainant,)

)

v.) Appeal No.09-10382

)

JAKE ZIMMERMAN, ASSESSOR,)

ST. LOUIS COUNTY,MISSOURI,)

)

Respondent.)

 

DECISION AND ORDER

 

HOLDING

 

Decision of the St. Louis County Board of Equalization reducing the assessment made by the Assessor is AFFIRMED.True value in money for the subject property for tax years 2009 and 2010 is set at $3,000,000, mixed use assessed value of $627,070.

Complainant appeared by Counsel, Jerome Wallach, The Wallach Law Firm, St. Louis, Missouri.

Respondent appeared by Associate County Counselor, Edward W. Corrigan.

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

ISSUE

Complainant appeals, on the ground of overvaluation and discrimination (equalization)[1], 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 June 14, 2011, at the St. Louis County Government Center, Clayton, Missouri.[2]

2.Assessment.The Assessor assessed the property as follows:[3]

 

The Board of Equalization assessed the property as follows:

 

3.Subject Property – Identification.The subject property is located at 745 Lewis Road, Eureka, Missouri.The property is identified by parcel number 27U510061.The property is otherwise known as the Crescent Farms Golf Club.

4.Subject Property – Description.The property under appeal consists of 187.73 acres.It is improved by a 9 and 18 hole semi-private golf course, with a club house, maintenance building and equipment shed.[4]

5.Complainant’s Evidence.Complainant submitted into evidence Exhibit A – Appraisal Report of Ernest A. Demba and Exhibit B – Written Direct Testimony of Mr. Demba.Mr. Demba testified under cross and redirect examination at the hearing.

There was no evidence of new construction and improvement from January 1, 2009, to January 1, 2010, therefore the assessed value for 2009 remains the assessed value for 2010.[5]

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 $1,586,000, as proposed by the Demba appraisal.See, Complainant Fails to Prove Value of $1,586,000, infra.

6.Respondent’s Evidence.Respondent submitted into evidence the following Exhibits.

 

Mr. Kiene testified under cross and redirect examination at the hearing.

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.[6]

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.[7]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.[8]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.[9]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.[10]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.[11]Complainant’s evidence did not meet the standard of substantial and persuasive evidence to establish the true value in money for the subject property.Therefore, the presumption of correct assessment was not rebutted.

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.[12]True value in money is defined in terms of value in exchange and not value in use.[13]It is the fair market value of the subject property on the valuation date.[14]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.[15]

 

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.[16]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.[17]As will be addressed below, the Hearing Officer found no probative weight in the appraisal or testimony of Complainant’s appraiser.

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] The asserted “income approach” presented by Mr. Demba did not conform to any income valuation methodology that the Hearing Officer has every encountered.The Hearing Officer was unable to find any example or illustration from recognized appraisal authorities[20] which verified the claimed “income approach” utilized by Complainant’s appraiser. Nor did Mr. Demba provide any support from any recognized authority that his method of arriving at a value for the property is recognized and accepted in the appraisal field.

Complainant Fails to Prove Value of $1,586,000

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.[21]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.”[22]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[23]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.[24]

Demba Appraisal Not Substantial, Nor Persuasive

The Demba appraisal was woefully lacking in evidence that a reasonable mind could accept as adequate to support the conclusion which was drawn.A review of the Demba income methodology provides no element of persuasiveness that it is representative of what a willing buyer and seller might have agreed to as the purchase price for the subject property on January 1, 2009.There are significant flaws and omissions throughout the Demba appraisal which are to now be addressed.

Market and Marketability Analysis

In the appraiser’s Market and Marketability Analysis,[25] after citing to various “statistics” from unidentified sources, relative to the St. Louis area housing market and economy, Mr. Demba reaches the following conclusion: “There is no current market for the subject if vacant and not used as a golf course.”The Hearing Officer understands therefore that the valuation of the subject would be for sale as a golf course.Accordingly, its valuation would be based upon an income approach derived from the operation of the golf course.However, that is not the income approach which Mr. Demba used.

The Appraiser then goes on to conclude that the property. . . does not have a Market Value as defined today under the economic conditions as outlined above and the highest and best use described below.”Mr. Demba misses the point of the case.He is in effect asserting a zero value for the subject.Under the controlling statutes, the property must be valued under the Standard for Valuation as of January 1, 2009.In other words, it is necessary to utilize a hypothetical sale as of that date.The Hearing Officer is not persuaded that the subject property as it existed on January 1, 2009 had no value.Such a claim by the Appraiser casts a lack of credibility cloud on the remaining appraisal process put forth in Exhibit A.

Highest and Best Use Analysis

Mr. Demba’s Highest and Best Use analysis[26] supports the sale of the subject for its use as a golf course.The four tests[27] for arriving at highest and best use are: Legally Permissible, Physically Possible, Financially Feasible and Maximally Productive.A review of the analysis in the Appraisal appears to support a use of the subject as it existed on January 1, 2009 as a golf course.

Vacant and Unimproved – Legally Permissible

As to the legally permissible use of the property if vacant and unimproved, Mr. Demba only reported on the property’s existing zoning.He provided no facts to establish whether or not a golf course or a residential development would be permissible under the zoning that existed on January 1, 2009.Accordingly, the Hearing Officer can conclude that if the subject tract was vacant and unimproved that a golf course could be constructed, since one now exists thereon.However, as to Mr. Demba’s assertion, put forth in other parts of the highest and best use analysis, that a residential development is legally permissible, there are no facts in Mr. Demba’s appraisal or testimony upon which the Fact Finder can reach such a conclusion.[28]

Vacant and Unimproved – Physically Possible

Mr. Demba concludes that the operation of a golf course is one physically possible use for the land if it were vacant and unimproved.He also opines that the land could be developable as a residential development.

Vacant and Unimproved – Financially Feasible

The conclusion under this test by Mr. Demba was, “. . .that the most financially feasible use for the subject site would be a golf course or other recreational facility, or eventually a residential development.

Vacant and Unimproved – Maximally Productive

As to the final test, Mr. Demba only provided the following: “. . . the owner is losing money on the operations of the golf club every year, and would be unable to sell the property based on an income stream, in the current market.”No income and expense data was presented to confirm the claim of the Appraiser.Therefore, the Hearing Officer has nothing in the appraisal to examine relative to this claim to either confirm or rebut Mr. Demba’s assertion.However, no conclusion was reached as to what exactly the maximally productive use of the property if vacant and unimproved might be.

Often appraisers come before the Commission and offer their conclusions and opinions based upon their general knowledge and experience in the appraisal field and information obtained from discussions with various sources.While that may be satisfactory in some fee appraisal situations, and even sufficient for the Fact Finder in some instances, it does not constitute verifiable evidence.In other words, in this instance, Mr. Demba asserts the subject golf course does not make money.That may well be the case.The Hearing Officer is not questioning the honesty of Mr. Demba when he puts forth this claim.That does not change the fact the Appraiser’s conclusion is simply a result of hearsay, apparently obtained from someone speaking on behalf of Complainant, as opposed to an examination and analysis of the subject golf course’s actual financial statements.[29]

Mr. Demba elected to not present in his appraisal the income and expense data for the recent history of the subject.He must have had access to such information, since he was appraising it for the owner of the property under appeal.Why in good, sound appraisal practice the decision was made to withhold that information from the Hearing Officer defies not just reasonable appraisal practice, but simple common sense.The result is a significant, if not fatal, omission on the part of the appraiser on this point.

Conclusion – Highest and Best Use – Vacant

Based on the foregoing, as deficient as the Appraiser’s highest and best use analysis was, the Hearing Officer can only conclude that if the subject had been vacant, unimproved land on January 1, 2009, the development of a golf course would have certainly have qualified as the potential highest and best use.As to any alternative use such as a residential development, the Demba analysis falls short of so establishing.

As Currently Improved

Mr. Demba simply adopts the conclusions under the vacant analysis for the currently improved analysis and concludes that the current use as a golf course is an interim use which at some undesignated point in the future, when the inventory of sites for residential development has cleared, will be converted into a use for residential development.Again in this instance the Hearing Officer is left with a conclusional opinion of the Appraiser barren of any supporting documentation.No data, study or analysis was presented as to any “inventory of sites for residential development” by the Appraiser or any conclusion drawn therefrom to establish a projected timeframe as to when the “inventory” may be cleared.It may well be that the use as a golf course is not actually an interim use.It appears to the Hearing Officer that Mr. Demba was influenced in his appraisal conclusions by the apparent fact that the current owner purchased the subject property in 2005 with the intent of future residential development for the property.That does not establish that the most probable sale on January 1, 2009 would be one similarly motivated.

Sales Comparison Approach

In a rather strange bit of appraisal work, Mr. Demba’s Appraisal contains a section on Sales Comparison Approach, but without a value conclusion under this approach.[30]In this portion of the Appraisal are listed sales of six golf courses and the sale of the subject in December 2005 for $3,700,000.[31]The six sales took place during the time frame of from December 2000 to September 2004.Mr. Demba states on page 26 of his Appraisal – “the following sales are given as reference only and not as comparable sales.”

In other words, the sales have no relevance for purposes of Mr. Demba arriving at a conclusion of value for the subject.The dates of sales in relation to a January 1, 2009 valuation date render the sales at a time too remote to be relevant for use in a sales comparison approach.The Hearing Officer finds no benefit to the information on the sales as to “reference only,” since the information has no reference to what a willing buyer and seller would have agreed to as the purchase price for the subject on January 1, 2009.Mr. Demba would have done just as well to have simply reported in the Appraisal that there were no relevant sales data upon which the sales comparison approach to value could be developed.

Income Approach

The Hearing Officer now considers the only basis for the fair market value of the subject property tendered by Mr. Demba, that being his “Income Approach.”[32] The Hearing Officer has a very sound understanding of the income approach to value.Due to the fact that the Demba Income Approach did not at first glance appear to fall into what the Hearing Officer has been trained in and has applied over the years as the income approach in his decisions, a review of the literature on the subject was warranted.Therefore, in an effort to verify the validity of the appraisal methodology presented by Mr. Demba from which he arrived at his conclusion of value, the Hearing Officer reviewed a number of appraisal sources.[33]Nowhere in the Hearing Officer’s review was found any illustration or model of valuation for a golf course under the income approach technique which Mr. Demba employed to arrive at value.

The income capitalization approach has been defined as:

“A set of procedures through which an appraiser derives a value indication for an income-producing property by converting its anticipated benefits (cash flows and reversion) into property value.This conversion can be accomplished in two ways.One year’s income expectancy can be capitalized at a market-derived capitalization rate or at a capitalization rate that reflects a specified income pattern, return on investment, and change in the value of the investment.Alternatively, the annual cash flows for the holding period and the reversion can be discounted at a specified yield rate.”[34]

 

The income approach as specifically applied to the appraisal of a golf course in the Encyclopedia of Real Estate Appraising follows the traditional and accepted methodology of capitalizing the net operating income to arrive at value.[35]This is not the approach employed by Complainant’s appraiser.

The Demba “income approach” consists of assuming the subject property purchased on January 1, 2009, would be held for 10 years and then be sold as residential lots for $20,000 per acre in 2019.Mr. Demba then discounted the $20,000 per acre value at 9% to arrive at a

January 1, 2009, per acre value of $8,448 per acre or the final value of $1,586,000.In effect what the Appraiser did was to extract what would be considered the reversion factor in a yield capitalization or discounted cash flow analysis[36] and discount it alone to arrive at value.

Discounting is a part of the process under yield capitalization.[37]It is the term used to describe the process of converting future cash flows into a present value.In this process, periodic incomes and the final reversion are converted into present value through discounting to produce the present value of a future benefit.[38]Mr. Demba concluded that there is no stream of income from the golf course.Therefore he did not address any annual cash flow.He then leaped forward ten years and concluded that the subject’s 187 acres would sell for $20,000 per acre.So he discounts that amount to arrive at a current value.

The Appraiser failed to establish in his appraisal report, based upon the actual operating history of this semi-private golf club, a foundation from which the Hearing Officer can conclude no net operating income.Therefore, his discounted income analysis fails from the beginning.However, assuming without finding, that the subject property would have no income stream to a prospective purchaser on January 1, 2009, there is no data provided to establish any basis for the ten year holding period before the subject property would be subdivided and sold off as part of a residential development.

Mr. Demba’s conclusion is unsupported by a shred of information, study or analysis that supports this contention.It is simply a number pulled out of the air as far as the Hearing Officer can ascertain.The Appraiser’s general comments about the housing market in the St. Louis area and the supposed inventory of sites for residential development provide no verifiable evidence that his claims and assertions are applicable to the present appraisal problem.

As to the conclusion that in 2019, lots from the subject 187 acres will be selling for $20,000 per acre, derived from what the current owner paid for the property in 2005,[39] it is without any substantiation.According to the information on the 2005 purchase, the price per acre for the golf course was $18,407.How this equates to value per acre in 10 years of $20,000 is totally unexplained and unsupported.It is nothing but the speculation of Mr. Demba that sales in 2019 would be close to the 2005 purchase price, or that they would be at $20,000 per acre.

Finally, there is the matter of the discount rate of 9%.The totality of support for arriving at a 9% discount rate is stated in the Appraisal as follows:“However, after analyzing the sales included in this report and in talking with other appraisers who have completed private golf course appraisals in this area, the appraisers are concluding a 9% discount rate.”[40]The appraiser provides no explanation or analysis as to how, relying on overall capitalization rates of 1.74%, 11.35%, 1.69%, 11.97%, and 13.57%, he was able to conclude the 9% discount rate.As to a reliance on what other appraisers have told Mr. Demba as to the discount rate they have used in appraising a private golf course, it is unpersuasive, absent an analysis by Mr. Demba of the underlying data upon which the other appraisers reached their conclusion.A reliance on some hearsay is permitted to appraisers.However, simply taking the opinion or conclusion of another appraiser and adopting it as one’s own is not the type of hearsay, the Hearing Officer finds appropriate, or persuasive.

Summary

A taxpayer does not meet its burden of proof, if evidence on any essential element of the case leaves the Commission “in the nebulous twilight of speculation, conjecture and surmise.”[41] In this instance, the Demba appraisal and testimony has left the Hearing Officer with nothing but speculation, conjecture and surmise.This is hardly, an adequate basis for concluding value in the appeal. “Where the basis for a test as to the reliability of the testimony is not supported by a statement of facts on which it is based, or the basis of fact does not appear to be sufficient, the testimony should be rejected.”[42]At every turn, the Hearing Officer was confronted with the fact that the appraisal and testimony tendered by Mr. Demba were not supported by facts, or the limited “facts” provided were insufficient.Accordingly, the testimony and appraisal are to be rejected as failing to qualify as substantial and persuasive evidence to arrive at value.

Request to Take Official Notice of the Commission’s File

Counsel for Complainant at the conclusion of the Hearing Officer’s questioning of Respondent’s witness requested that official notice be taken of the Commission’s file in this appeal.The Hearing Officer granted the request.[43]However, upon review of the Commission file, and the applicable statutory and case law relating to the taking of official notice, the Hearing Officer has concluded he erred in granting the request.

The Hearing Officer assumes that Counsel for Complainant, when requesting Official Notice be taken, wished specific notice be taken of the discovery documents which provided the income and expense information on the Crescent Farms Golf Club for the years, 2006, 2007, 2008 and 2009.A copy of these documents had been filed with the Commission by Counsel for Complainant.However, the Commission Order setting the Discovery Procedure did not require documents produced in discovery to be filed with the Commission.The Order specifically provided:“Documents produced in response to discovery are not required to be filed with the Commission.”[44]Emphasis added.

Although Counsel for Respondent submitted to the Commission a stack of documents in response to Respondent’s discovery request and those were placed in the folder of this appeal, those documents did not become a part of the record in the appeal.The Hearing Officer is persuaded that documents produced in response to discovery should not be made a part of the record upon a request to take official notice.This is due to the fact that such discovery documents do not generally fall within the nature of official notice of adjudicative facts.That is the case in this instance.

The statutory law is that an administrative agency, i.e. State Tax Commission, shall take official notice of all matters of which the courts shall take judicial notice.[45]Consequently, the case law addressing the parameters of judicial notice likewise set the parameters for official notice to be taken by the Hearing Officer.[46]The case law controlling judicial notice does not lend itself to simply taking notice of a group of hearsay documents produced in response to discovery.

The principle involved is that the Hearing Officer may take judicial notice of adjudicative facts that are (1) matters of common knowledge or (2) ascertainable by reference to reliable or authoritative sources.[47]Adjudicative fact is defined as “A controlling or operative fact, rather than a background fact; a fact that concerns the parties to a judicial or administrative proceeding and that helps the court or agency determine how the law applies to those parties.”[48]

The group of discovery documents or more specifically the income and expense documents does not come within facts that are matters of common knowledge.In order for official notice to be taken of facts commonly known, the “facts” are not required to be universally known, but it must be known by people of ordinary intelligence.[49]The income and expense statements of a semi-private golf course are simply not facts that would be generally known by people in the community.

The facts relative to Complainant’s income and expenses for certain years are not such facts as have been generally recognized as facts capable of accurate and ready determination.[50]Such facts, to be admissible into evidence, would have to have the documents authenticated as a business record, in order to come under the hearsay exception.Taking official notice to skirt the evidentiary standards for the admission of hearsay is not acceptable.

Court records, or in this instance Commission records are ordinarily reliable and authoritative sources.However, that general rule is subject to the limitation that the Commission may take official notice of its own records and files in prior proceedings involving the same parties and basically the same facts, or a related case.[51]In this instance, the request to take official notice was directed toward documents gratuitously filed with the Commission, but not tendered as exhibits in the present case, not in a prior or related appeal.The documents produced in response to discovery were not ordered to be filed with the Commission and consequently are only in the file because submitted by Complainant.To permit a host of discovery documents to become a part of the record in an appeal by the simple means of a request to take official notice would result in numerous unauthenticated hearsay documents, as well as, irrelevant material to become a part of the record.

Taking of official notice is left to the sound discretion of the Hearing Officer, depending on the nature of the subject, the issues involved and the apparent justice of the case.[52]In the present case, the Hearing Officer upon his research and reflection has concluded that he erred at hearing in granting Counsel for Complainant’s request to take official notice of the Commission file.The Hearing Officer’s inquiry of Respondent’s witness relative to the documents produced during discovery was not intended to address or provide evidence relative to the income and expense statements contained in the discovery documents.The purpose of the inquiry was to point out what the Hearing Officer deemed to be a serious omission on the part of Respondent’s witness in not availing himself of documents and information available to him as a result of discovery.Further the Hearing Officer was confirming in this case, what he has observed in other cases, that after production of numerous documents by a Complainant, often Respondent ignores them and they are never offered into evidence.

To take official notice of the discovery documents would have the effect of the Hearing Officer putting into the record evidence which could have been and should have been a part of Complainant’s case in chief.More particularly, the Demba appraisal should have addressed the income and expense issue in his appraisal by providing the necessary information which could be obtained from the documents.It is not appropriate to correct the deficiency in the expert’s work by means of taking official notice of what are not adjudicative facts that are matters of common knowledge or ascertainable by reference to reliable or authoritative sources.

The Hearing Officer’s ruling at hearing granting official notice of the discovery documents is reversed.

Respondent’s Evidence

The Hearing Officer is well aware that Respondent had no burden of proof in this appeal.The Hearing Officer’s observations hereinafter made are by no means an attempt to impose any such burden on Respondent.The law is well settled, as cited above, that a presumption exists as to the validity, good faith and correctness of assessment by the Board.Respondent can always simply rest upon the presumption.This is essentially what was done in this appeal.

The conclusion of Mr. Kiene was simply that since the property had sold in January, 2006, just three years prior to the tax date for $3,000,000 that was the “best evidence of the subject property’s market value as of January 1, 2009.”[53]Evidence of the actual sales price of property is admissible to establish value at the time of an assessment, provided that such evidence involves a voluntary purchase not too remote in time.The actual sale price is a method that may be considered for estimating true value.[54]In many instances, a sale three years prior to the valuation date of a property such as the subject would provide a generally sound basis for valuation.

However, in this case, that sale was from a private golf course club to Complainant.The property prior to sale had been operated as a golf course.Had Mr. Kiene reviewed the financial statements for the Crescent Farms Golf Club, it could have raised a serious question as to whether the 2006 purchase was actually for the operation of a golf course or if it was for investment purposes (as asserted by Mr. Demba).An analysis of the income and expenses by Mr. Kiene might have lead him to conclude that in fact the golf course operation would not support a value of $3,000,000 in January 2009.In which case, one would be hard pressed to conclude a contributory value from the golf course improvements.

This would mean the only value in January 2009 was a land value for 187 acres.That is what Mr. Demba attempted to do in his unsubstantiated and unpersuasive methodology.Had Mr. Demba established in his appraisal a non-contributory value for the golf course improvements and then proceeded to value the subject 187 acres in a traditional and accepted manner (sales comparison), the Board presumption relied upon by Respondent could well have been rebutted.

Conclusion

As a result of the various shortcomings of the Demba appraisal, Complainant failed to carry its burden of proof.The Hearing Officer is left with the Board presumption and as a consequence that is determinative.[55]The property is to be valued as of January 1, 2009, at $3,000,000.

ORDER

The assessed valuation for the subject property as determined 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 $627,070 – Residential: $485,390; Commercial $141,180 and Agricultural: $500.

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. [56]

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.If no Application for Review is filed with the Commission within thirty days of the mailing date set forth in the Certificate of Service, the Collector, 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.

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 September 16, 2011.

STATE TAX COMMISSION OFMISSOURI

 

 

_____________________________________

W. B. Tichenor

Senior Hearing Officer

w.b.tichenor@stc.mo.gov

 

 

 

 

Certificate of Service

 

I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 16^thday of September, 2011, to:Jerome Wallach, Three City Place Drive, Suite 1070, St. Louis, MO 63141, Attorney for Complainant; Edward Corrigan, Associate County Counselor, County Government Center, 41 South Central Avenue, Clayton, MO 63105, Attorney for Respondent; Jake Zimmerman,Assessor, County Government Center, 41 South Central Avenue, Clayton, MO 63105; John Friganza, Collector, County Government Center, 41 South Central Avenue, Clayton, MO 63105.

 

 

___________________________

Barbara Heller

Legal Coordinator

Barbara.Heller@stc.mo.gov

 

 

 

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