Daniel & Elizabeth Slack v. Johnson (Cedar)

State Tax Commission of Missouri

 

DANIEL J. & S. ELIZABETH SLACK,)

)

Complainants,)

)

v.)Appeal No.08-49500

)

PAUL E. JOHNSON, ASSESSOR,)

CEDAR COUNTY, MISSOURI,)

)

Respondent.)

 

ORDER

AFFIRMING HEARING OFFICER DECISION

UPON APPLICATION FOR REVIEW

 

On December 23, 2008, Senior Hearing Officer W. B. Tichenor entered his Decision and Order (Decision) affirming the assessment by the Cedar County Board of Equalization.

Complainants timely filed Application for Review of the Decision.Respondent elected to not file a Response.

CONCLUSIONS OF LAW

Standard Upon Review

The Hearing Officer is not bound by any single formula, rule or method in determining true value in money, but is free to consider all pertinent facts and estimates and give them such weight as reasonably they may be deemed entitled.The relative weight to be accorded any relevant factor in a particular case is for the Hearing Officer to decide.[1]

The Hearing Officer as the trier of fact may consider the testimony of an expert witness and 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.[2]

The Commission will not lightly interfere with the Hearing Officer’s Decision and substitute its judgment on the credibility of witnesses and weight to be given the evidence for that of the Hearing Officer as the trier of fact.[3]

DECISION

A review of the record in the present appeal provides support for the determinations made by the Hearing Officer.There is competent and substantial evidence to establish a sufficient foundation for the Decision of the Hearing Officer.A reasonable mind could have conscientiously reached the same result based on a review of the entire record. The Commission finds no basis to support a determination that the Hearing Officer acted in an arbitrary or capricious manner or abused his discretion as the trier of fact and concluder of law in this appeal.[4]

Complainants in their letter seeking review of the Decision address a number of matters irrelevant to the Findings of Fact, Conclusions of Law and Decision reached by the Hearing Officer.The critical factor in this appeal rests upon Finding of Fact 5.[5]Irrespective of the assertions presented in the Application for Review, the uncontroverted fact is the property was purchased at a time relevant to the tax date for an amount that was in excess of two and a half times the value set by the Assessor and affirmed by the Board.In the face of this evidence, Complainants presented no evidence that even remotely addressed the true value in money of the property.

Complainants only focus attention on the condition of a number of the mobile homes on the subject property.It is readily apparent that the uninhabitable condition of some of the mobile homes had little if any impact on the fair market value of the property.The value of the property rests not in a group of highly depreciated mobile homes.The property’s value is founded in the income stream it can produce as a mobile home park.No doubt, that was the motivation for the purchase by Complainants.

The Hearing Officer correctly found that Complainants failed to rebut the presumption of correct assessment by the Board and to establish what a willing buyer and seller would have paid for the property as of January 1, 2007.The Hearing Officer did not err in his determinations.

ORDER

The Commission upon review of the record and Decision in this appeal, finds no grounds upon which the Decision of the Hearing Officer should be reversed or modified.Accordingly, the Decision is affirmed.The Decision and Order of the hearing officer, including the findings of fact and conclusions of law therein, is incorporated by reference, as if set out in full, in this final decision of the Commission.

Judicial review of this Order may be had in the manner provided in Sections 138.432 and 536.100 to 536.140, RSMo within thirty days of the mailing date set forth in the Certificate of Service for this Order.

If judicial review of this decision is made, any protested taxes presently in an escrow account in accordance with this appeal shall be held pending the final decision of the courts unless disbursed pursuant to Section 139.031.8, RSMo.

If no judicial review is made within thirty days, this decision and order is deemed final and the Collector of Cedar County, as well as the collectors of all affected political subdivisions therein, shall disburse the protested taxes presently in an escrow account in accord with the decision on the underlying assessment in this appeal.

SO ORDERED March 24, 2009.

STATE TAX COMMISSION OF MISSOURI

Bruce E. Davis, Chairman

Jennifer Tidwell, Commissioner

Charles Nordwald, Commissioner

 

 

 

 

DECISION AND ORDER

 

HOLDING

 

Decision of the Cedar County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.True value in money for the subject property for tax year 2008 is set at $84,200, assessed value of $15,870.Complainant, Elizabeth S. Slack appeared pro se. Respondent appeared pro se.Case heard and decided by Senior Hearing Officer W. B. Tichenor.

ISSUE

The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2008.

SUMMARY

Complainants appeal, on the ground of overvaluation, the decision of the Cedar County Board of Equalization, which sustained the valuation of the subject property.The Assessor determined an appraised value of $84,200, assessed value of $15,870, as residential ($15,640) and agricultural ($230) property for the year 2008.Complainants proposed no value on the Complaint for Review of Assessment.A hearing was conducted on November 24, 2008, at the Cedar County Courthouse, Stockton, Missouri.

The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.

Complainant’s Evidence

Mrs. Slack testified on behalf of Complainants.She offered into evidence a packed of documents identified and listed as follows.[6]

 

The Power Point presentation was shown and explained at the Evidentiary Hearing.It was on a SanDisk.Complainant did not provide a hard copy of the presentation.Exhibits to be filed with and retained by the Commission are to be on 8 ½ x 11 inch paper.While Power Point presentations may be utilized at a hearing, it is the responsibility of the party offering the same to provide the Commission with a hard copy for the permanent file.The Hearing Officer after numerous attempts was unable to open Complainants’ thumb drive to print off the presentation, therefore no hard copy of same is included in the Commission file.

Mrs. Slack’s contention was that the 10 mobile homes should only be valued at a salvage value or approximately no more than $5,250 collectively.She had calculated her own salvage values for the mobile homes.No opinion of value as to the entire tract of land as it existed on January 1, 2007, was provided by Mrs. Slack.

Respondent’s Evidence

Respondent testified as to his valuation of the subject property.The testimony of Mr. Johnson established that he valued the property under appeal under a mass appraisal system[7] recognized by the State Tax Commission.His valuation for the Slacks’ property followed the same procedures for valuing similar properties in Cedar County.The Assessor offered the following exhibits into evidence.[8]

 

FINDINGS OF FACT

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

2.The subject property is located at 3360 South Hwy 32, El Dorado Springs, Missouri.The property is identified by map parcel number 3-8-3.3-30.The property consists of a 20 acre tract of land.The land is divided between residential (8.4 acres) and agricultural (11.6 acres) classifications. The residential portion is improved with a mobile home park (South Park Mobile Home Village).It contains 33 mobile home hook-up lots.Each lot has electrical, sewer and water services. There were 10 mobile home units which Complainants owned as of April 10, 2008.However, the Assessor only assessed the property for 9 mobile home units.[9]

3.No challenge was presented to the agricultural classification and valuation of the 11.6 acres at $1,900, assessed value of $230.

4.There was no evidence of new construction and improvement from January 1, 2007, to January 1, 2008.

5.The Complainants purchased the property on June 8, 2007, for $212,000.[10] Liberty Bank, El Dorado Springs, Missouri loaned $212,000 on 6-8-07, secured by the subject property.[11]

6.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, 2007, for the residential portion of the subject property.

7.The assessor’s valuation for 2008 of the residential part of the Slack property, as sustained by the Board was as follows:

 

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.[12]

Presumptions In Appeals

There is a presumption of validity, good faith and correctness of assessment by the CountyBoardof Equalization.[13]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.[14]Mrs. Slack failed to present substantial and persuasive evidence to rebut the presumption of correct assessment by the Board.Therefore, that value stands as the assessment on the property under appeal for the 2008 tax year.

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.[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]

 

Complainants’ Fail to Meet Burden of Proof

Appeals on valuation that come before the Commission are not generally very complicated or difficult matters to address.Often, as in the case, the taxpayer fails to grasp the issue that must be decided.Consequently, a great deal of irrelevant information is submitted.Unless evidence addresses and has relevance to the issue to be decided, it has no probative benefit in the proceeding.In this particular case, nearly all of the multitude of documents provided by Mrs. Slack missed the mark as to what a willing buyer and seller would have agreed to as the purchase price for the subject property as it existed on January 1, 2007.

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, 2007.[18]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.”[19]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[20]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.[21]

Owner’s Opinion of Value

The owner of property is generally held competent to testify to its reasonable market value.[22]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[23]In this instance, Mrs. Slack only proffered an opinion of fair market value as to the group of nine mobile homes on Complainant’s mobile home park.No opinion of value was tendered either on the Complaint for Review of Assessment or at Hearing as to the 8.4 acres that comprises the South Park Mobile Home Village.Therefore, Complainants failed to meet their burden of proof to present both an opinion of value for the property under appeal and market support for an opinion.

Opinion As To Value of Mobile Homes

The opinion of value for the mobile homes collectively was testified to as $5,250.This opinion was developed and explained in the Power Point presentation.It was based upon Mrs. Slack’s contention that the value of the mobile homes was their salvage value.This basis for an opinion of value is flawed in a number of ways.

The evidence fails to provide any substantiation that a dealer in used mobile homes would only pay salvage value for the Slacks’ mobile homes.If the units had only salvage value, the appropriate course of action would have been to salvage them upon purchase of the property.The units clearly have more than salvage value given that Mrs. Slack submitted a detailed list of Repair Estimates,[24]that would make bring the mobile homes to a status as rental units.Furthermore, Mrs. Slacks testimony established that the intention regarding the mobile homes was to repair and remodel them so that they can be occupied.Complainant’s closing statement clearly establishes the intention to make the units livable so that they can be rented as low-cost housing.

The claim of value for the mobile homes being only salvage value is clearly rebutted by the foregoing.It is obvious the units can be repaired and remodeled.They have economic value to Complainants to be rehabbed for use as rental units.This value as rental units is greater than the salvage value, otherwise, Complainants would not have held on to the mobile homes.

Valuing Only Mobile Homes Flawed Methodology

More importantly, the methodology Mrs. Slack relied on of essentially deducting the Assessor’s values for the mobile homes from the value set by the Assessor and Board and then adding back the salvage value is simply a flawed methodology.It does not capture the entire value of property under appeal.South Park Mobile Home Village (Village) has value above and beyond whatever the value of the mobile home units may or may not be.

The true value of the Village lies in the simple fact that an investor-owner has a property that produces a stream of income.That stream of income is generated from the leasing of individual lots to owners of mobile homes and the leasing of mobile home units owned by the investor-owner.Irrespective of how many mobile homes units the Slacks may own and place on lots in the Village, the Village still has income producing potential for each and every lot, because each lot can be rented for use by individual mobile home owners.

The Village is a single economic unit.That single economic unit had in 2007 and 2008 a value of at least $212,000.Even if no value was attributed to the mobile homes, the subject property’s value would be at least $82,300.Complainants attempt to appeal only a part of the subject property, i.e. mobile home units.That is not the property that is before the Commission.The property being appealed is the entirety of the 8.4 acres, as it existed with improvements on 1/1/08, under the economic conditions of 1/1/07.[25]

Sale of Subject

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.The actual sales price, between a willing seller who is not obligated to sell and a willing buyer who is not compelled to buy, establishes an outer limit on the value of real property.[26]The purchase of this property by the Slacks in June 2007 was a sale transaction at a time relevant to both a 2007 and a 2008 valuation.It is clearly relevant to the issue of overvaluation.The sale possesses great probative weight as to the value of the property under appeal.

A price agreed to between a willing buyer and seller creates a presumption that the transaction was a market transaction.[27]There was no evidence to rebut the presumption that the June 2007 transaction was anything other than a market transaction.Although no appraisal report on the sale was offered into evidence, it seems highly unlikely the bank would loan $212,000 with the subject property as collateral if an appraisal did not confirm that value.The very fact that a financial institution would loan the Slacks the money to purchase the Village is a further indication of a market transaction.

The June 2007 purchase by the Slacks is clear and convincing evidence of a true value in money for the subject property as of January 1, 2007, and January 1, 2008, of $212,000.However, Respondent did not offer evidence of the sale as a basis for increasing the appraised value of the property.Given Respondent’s position and the failure of the Complainants to meet their burden of proof, the Hearing Officer declines to increase the valuation of the property for the 2008 tax year based upon the June 2007 sale.

Complainants’ Evidence Not Probative of Value

Each of the documents submitted at hearing by Complainants has been reviewed and considered in detail.The Power Point presentation as it was made by Mrs. Slack at hearing was carefully considered at that time.The Hearing Officer will not burden the record by a detailed explanation of why each of the forty-seven documents filed by Complainants are not relevant to the issue of the fair market value of the subject property.Suffice it to say, that none of the exhibits, individually or collectively, provide any market data upon which a determination of value can be concluded for the residential property that is the subject of this appeal.The simple evidence of the sale of the property in June 2007 rebuts all of Complainants claims that their property has been overvalued for the 2007 – 2008 assessment cycle.

Summary and Conclusion

Complainants failed to meet their burden of proof.Therefore, the presumption of correct assessment by the Board stands.

ORDER

The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization for Cedar County for the subject tax day is AFFIRMED.

The assessed value for the subject property for tax year 2008 is set at $15,870.

Complainants 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 grounds upon which it is claimed the decision is erroneous.Said application must be in writing addressed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, MO65102-0146, and a copy of said application must be sent to each person at the address listed below in the certificate of service.

Failure to state specific facts or law upon which the appeal is based will result in summary denial. [28]

The Collector of Cedar County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending a 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 23, 2008.

STATE TAX COMMISSION OFMISSOURI

W. B. Tichenor

Senior Hearing Officer