Curtis & Candice Cherry v. Zimmerman (SLCO)

 

CURTIS & CANDICE CHERRY, )

)

Complainants, )

)

v. ) Appeal No. 12-10246

)

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 year 2012 is set at $1,594,500, residential assessed value of $302,960.

Complainant Curtis Cherry appeared Pro Se.

Respondent appeared by Associate County Counselor, Paula 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 subject property on January 1, 2011.[1] The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.

FINDINGS OF FACT

1. Jurisdiction. Jurisdiction over this appeal is proper. Complainant timely appealed to the State Tax Commission from the decision of the St. Louis County Board of Equalization.

2. Evidentiary Hearing. The Evidentiary Hearing was held on July 2, 2013, at the St. Louis County Government Center, 41 South Central Avenue, Clayton, Missouri.

3. Identification of Subject Property. The subject property is identified by Locator Number 20V330281. It is located at 1238 Shepard Oaks Court, Wildwood, Missouri.[2]

4. Description of Subject Property. The subject property is described on Addendum Page 1 of 5 in Exhibit 1.

5. Sale of Subject. The subject property was purchased by Complainants on 7/1/10 for $1,700,000. See, Methods of Valuation, infra.

6. Assessment. The Assessor appraised the property at $1,594,500, an assessed residential value of $302,960. The Board of Equalization sustained the assessment.[3]

7. Complainants’ Evidence. Complainants offered into evidence the following exhibits:

 

Counsel for Respondent objected to Exhibits A through D and Exhibits F and G. Objections were sustained and the Exhibits were excluded from evidence.[4] See, Rulings on Objections, infra.

8. No Evidence of New Construction & Improvement. 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.[5]

9. Presumption of Correct Assessment Not Rebutted. Complainants’ 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, 2011, to be $1,200,000, as proposed. See, Presumption In Appeal and Complainants Fail To Prove Value, infra.

10. Respondent’s Evidence. Respondent offered into evidence: (1) Exhibit 1 – Appraisal Report dtd 1/1/11 – Sarah Curran, Mo. State Certified Residential Real Estate Appraiser; and (2) Exhibit 2 – MultiList Data Sheet – Sale of Subject – 7/1/10. The Exhibits were received into evidence without objection.

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]

Presumption In Appeal

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. 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.[10]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[11] 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.[12]

The exhibits presented by Complainants were objected to and excluded from evidence. See, Rulings on Objections, infra. Accordingly, there was no evidence in the record to rebut the presumption of correct assessment by the Board and establish the opinion of value proffered by Complainants. The Complainants having failed to rebut the presumption of correct assessment, the Board’s valuation stands.

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

 

Complainants presented no evidence to establish that their proposed opinion of value met this Standard For Valuation.

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.[17]

The Hearing Officer as the trier of fact may consider the testimony of an expert witness and the owner and give it as much weight and credit as he may deem it entitled to when viewed in connection with all other circumstances. The Hearing Officer is not bound by the opinions of experts, or of the owner, who testify on the issue of reasonable value, but may believe all or none of the expert’s or owner’s testimony and accept it in part or reject it in part.[18]

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.[19] 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.[20] The Supreme Court of Missouri has also held that 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.[21] Ms. Curran utilized the sales comparison approach to establish her opinion of value. In so doing, she gave appropriate consideration to the July, 2010 sale of the subject property. Complainants did not present an opinion of value based upon any recognized methodology for the appraisal of their property.

Hearsay and Relevance

In evidentiary law there are two important and fundamental concepts relating to the admissibility of evidence, whether in testimonial or documentary form. Those two principles are hearsay and relevance. Either can be sufficient in various circumstances to exclude testimony or documents from coming into the evidentiary record.

Hearsay

Black’s[22] 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[23] 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[24] 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.”[25] 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.

Relevance

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.[26] 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.”[27] Evidence, that tends to prove or disprove a fact that is at issue or of consequence, is relevant.[28]

In appeals on the value of property, the issue is what a willing buyer and seller would have agreed to as the purchase price on the applicable valuation date. The issue is not what real estate price trends in general may have been or any given period of time. The issue is specific to the property that is under appeal. Therefore, general statements, claims, conclusions and opinions as to what the “market for homes” has or hasn’t done do not meet the factors of materiality and probative value and are accordingly irrelevant. The fact that some report provides general information on home values is addressing a matter that is not at issue in an appeal. Such information is not material. Furthermore, such general data does not tend to prove what the property under appeal was worth on the given valuation date. For example, a report that home prices in the nation, region or certain metropolitan area over a four or five year period decreased by a certain average percentage provides no factual information as to the price or value of any given home. In other words, such information is not probative on the issue of value. It does nothing to prove that a given property is worth one amount or another.

Rulings on Objections

Mr. Cherry sought the admission into evidence of his seven exhibits. Counsel for Respondent objected to all, except for Exhibit E. Objections were on the grounds of hearsay and relevance in each instance. The objections were sustained, and the exhibits were excluded from the evidentiary record.

Exhibits A, B & C – Zillow Data Sheets

Taxpayers often wish to rely upon information contained in Zillow Data Sheets. Such reliance is greatly misplaced. Zillow reports are hearsay; as such they are not admissible into evidence. There is no exception to the hearsay rule under which a Zillow document may come into evidence. The person, assuming the data is not simply compiled and put into the report format by a computer system, who created the Zillow report is not available to be cross-examined as to either the underlying facts in the document and the source for such facts, or as to the basis for the conclusions and opinions that may be expressed in the document.

Furthermore, without establishing that the data is of a type reasonably relied upon by experts in the field of residential appraisal in forming their opinions of value and that the information is otherwise reliable, the Zillow information has no probative value.[29] Zillow reports suffer from the additional defect that the information presented is not correlated to a valuation of the property under appeal. There is no expert voice to be heard that can account for differences between the Zillow properties and the subject property and actual provide a conclusion of value under acceptable appraisal standards. Accordingly, Zillow valuation reports are irrelevant. The Exhibits were excluded as hearsay, irrelevant documents. See, Hearsay and Relevance, supra.

Even if no objections had been made to these three exhibits, the documents could not have been given probative weight due to the simple fact they constitute nothing but raw data on the properties cited. Zillow reports are not appraisals. They provide no adjustments to the cited property in relation to a property being valued. Although Zillow reports provide various charts, graphs and various estimates (Zestimates), they have no relevance to what the value of another property is absent utilization of the data in accordance with accepted standards of appraisal practice. In other words, Zillow data sheets do not provide an opinion of value for Complainant’s property as of 1/1/11.

Exhibit D – STL Beacon Article & Exhibit F – Case Shiller Index

Mr. Cherry’s entire line of argument centered on his assertion that home prices had declined in recent years. In support of his argument, he sought the admission of Exhibits D and F. The problem with the position taken by the taxpayer is that the issue before the Hearing Officer was not (and never is) whether home prices have declined or increased over a given period of time. Neither is the issue the percentage home prices in general have changed from year to year. Beyond the fact that both the exhibits were hearsay, they also were not relevant to the issue of what a willing buyer and seller would have paid for the taxpayers’ home as of 1/1/11.

Nothing in either document provides any basis whatsoever upon which the Hearing Officer can, as a simple matter of logic and rational thinking conclude that the value of the Complainants’ home was $1,200,000 as of 1/1/11. The Beacon article in answer to the question, what is your home actually worth these days, responded – “The typical St. Louis home price is now 10 to 20 percent below its value in 2007, the peak of the housing bubble.” With reference to the subject property, any change in value of the property been 2007 and 2011, does nothing to provide a value as of 1/1/11. This is especially true given that the record establishes that a willing buyer and seller agreed to a purchase price of $1,700,000 on 7/1/10. Furthermore, the Hearing Officer is not persuaded based upon the twenty plus years he has been hearing residential appeals from the St. Louis metropolitan area that Complainants’ home qualifies as a “typical home.”

Turning to Exhibit F, the chart is likewise neither material to nor probative of what the subject property would have sold for as of 1/1/11. The trend in 20 other cities as to a home price index proves nothing relative to a single home in Wildwood, Missouri. Like Exhibit D, there is no basis, from whatever the home price index may establish, upon which the Hearing Officer can conclude the fair market value of the subject property or any other real estate.

Exhibit E – Real Estate Tax History Statement

Counsel for Respondent lodged no objection to this document. Therefore, it came into the evidentiary record. However, the only assessed value as of 1/1/11 and 1/1/12 that this document supports is the assessed value of $302,960, resulting in an appraised value of $1,594,500 set by the Assessor and sustained by the Board. The Exhibit therefore has no probative value to establish the value of $1,200,000 asserted by Mr. Cherry at hearing.

Exhibit G – Assessor’s Online Data Sheet – 2903 St. Albans Forest Circle Property

Mr. Cherry offered this document to provide information on a property which he deemed similar or comparable to the subject. There was no evidence to establish that by education, training and experience that Mr. Cherry was qualified as an expert in appraisal of residential real estate in St. Louis County, Missouri and therefore, could establish this property to be a sound comparable to establish value for the subject. Furthermore, without appropriate adjustments for the differences between the subject property and the property shown in Exhibit G, there is no way to establish what the indicated value for the Complainants’ home might be based upon this single property. Accordingly, had the exhibit not been excluded from evidence, it would have been insufficient to establish the value asserted by Mr. Cherry for the property under appeal.

Complainants Fail To Prove Value

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.[30] 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.”[31] A valuation which does not reflect the fair market value (true value in money) of the property under appeal, as established by the evidence of record, is an unlawful, unfair and improper assessment.

The owner of property is generally held competent to testify to its reasonable market value.[32] The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[33] As has been addressed in detail above, the documents proffered by Mr. Cherry at hearing were neither material to or probative of the opinion of value stated. Accordingly, even if the excluded exhibits had been a part of the evidentiary record, the Hearing Office could not conclude that the taxpayers’ opinion of value was based upon proper elements or a proper foundation. Clearly it was not. As a result, no probative weight can attach to the owners’ opinion of value.

There is no evidence on the record to support the Complainants’ opinion of value of $1,200,000. The burden of proof imposed upon the taxpayers has not been satisfied. The presumption of correct assessment by the Board remains intact.

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 year 2012 is set at $302,960.

Application for Review

A party may file with the Commission an application for review of this decision within thirty days of the mailing date set forth in the Certificate of Service for this Decision. The application shall contain specific facts or law as grounds upon which it is claimed the decision is erroneous. Said application must be in writing addressed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, MO 65102-0146, and a copy of said application must be sent to each person at the address listed below in the certificate of service.

Failure to state specific facts or law upon which the application for review is based will result in summary denial. [34]

Disputed Taxes

The Collector of St. Louis County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending the possible filing of an Application for Review, unless said taxes have been disbursed pursuant to a court order under the provisions of Section 139.031.8, RSMo.

Any Finding of Fact which is a Conclusion of Law or Decision shall be so deemed. Any Decision which is a Finding of Fact or Conclusion of Law shall be so deemed.

SO ORDERED July 17, 2013.

STATE TAX COMMISSION OF MISSOURI

_____________________________________

W. B. Tichenor

Senior Hearing Officer

Certificate of Service

 

I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 17^th day of July, 2013, to: Curtis Cherry, 1238 Shepard Oaks Ct., Wildwood, MO 63038, Complainant; Paula Lemerman, Associate County Counselor, Attorney for Respondent, County Government Center, 41 South Central Avenue, Clayton, MO 63105; Jake Zimmerman, Assessor, County Government Center, 41 South Central Avenue, Clayton, MO 63105; Mark Devore, Collector, 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