Darrel Welker v. Elfrink (Bollinger)

February 28th, 2014

State Tax Commission of Missouri
















Appeal No. 13-44001




















Decision of the Bollinger County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.Complainant did not 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 2013 and 2014 is set at $33,543, agricultural assessed value of $4,030 and $21,360, residential assessed value of $4,060.

Complainant appeared pro se.

Respondent appeared pro se.

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


Complainant appeals, on the ground of miscalculation of agricultural land, the decision of the Bollinger County Board of Equalization, which sustained the valuation of the subject property.The Commission takes this appeal to determine the acreage for Complainant’s land.The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.


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

2.Evidentiary Hearing & Issue.The Evidentiary Hearing was held on December 12, 2013 at the Bollinger County Courthouse, Marble Hill, Missouri.Complainant’s issue presented in the appeal is that his farm consists of 160 acres based upon the abstract for the property and his understanding of the location of the property lines.

3.Identification of Subject Property.The subject property is identified by Map Parcel Number 03-05.016-00.0-00-06.It is further identified as being located at 1510, RR # 5, Patton, Missouri.[1]The legal description for the property, taken from the deed whereby Mr. Welker took title to the property, is as follows:

Tract I – All of the South half of the Southeast quarter and the Southeast quarter of the Southwest quarter of Section Sixteen, in Township Thirty-three (33)North, of Range Nine (9) East, containing 120 acres, more or less; and

Tract II – All of the Northeast quarter of the Southeast quarter of Section Sixteen, Township Thirty-three North, of Range Nine East, containing 40 acres, more or less.[2] 

4.Description of Subject Property.The subject property consists of farmland shown by the records of the Assessor to consist of 170.52 acres,[3] and by the abstract and deed description as 160 acres, more or less.[4]

5.Calculation of Acreage for Bollinger County.The acreage of Complainant’s land was made through the use of a computer mapping program, known as gAMA.During 2012, this program was used and applied to real estate parcels in Bollinger County when field reviews of parcel improvements were made.When the property record cards were updated, mapping updates also occurred.The technology of the gAMA program more accurately calculates the parcel acreage with increases and decreases (more or less) for each individual parcel.The acres calculated by use of the gAMA program are used for assessing real estate.[5]

6.Calculation of Complainant’s Acreage.In 2012 Complainant’s real estate was assessed based on 156.40 acres (160 acres shown by Deed description minus roadway 3.6 acres).This was the method that had been used in the 1985 reassessment.The subject parcel was reviewed on 10/15/12, in order to make all necessary changes for the acreage calculations for 2013.The calculated acreage for assessment utilizing the gAMA program came to 170.52 acres.[6]

7.Sections, Metes and Bounds and Survey.A piece of land containing 640 acres, being one square mile is a section.[7]An acre consists of 43,560 square feet.[8]The territorial limits of real property as measured by distances and angles from designated landmarks and in relation to adjoining properties constitute the metes and bounds of the described property.[9]The measuring of a tract of land and its boundaries and contents or a map indicating the results of such measurements is a survey.[10]

8.Assessment.The Assessor appraised the property at $21,360, an assessed residential value of $$4,060 and $33,543, an agricultural assessed value of $4,030. The combined appraised value is $54,903, combined assessed value of $8,090. The Board of Equalization sustained the assessment.[11]

9.Complainant’s Evidence.Complainant testified at the evidentiary hearing.It is the opinion of Mr. Welker that the acreage for his farmland is 160 acres based upon his deed and the abstract for the property.

The following exhibits were received into evidence on behalf of Complainant:




Farm Services Administration Aerial Map ofSubject


BOE Appeal Form


Abstract on Complainant’s acreage


Statement of Basis of Acreage


10.Presumption of Correct Assessment Not Rebutted.Complainant’s evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the acreage of the property to be 160 acres.See, Hearing Officer’s Determination of Acreage of the Subject Land, infra.

11.Respondent’s Evidence.Respondent and Nonie Cowell, Deputy Assessor – Mapping both testified at the evidentiary hearing.

The following exhibits were received into evidence on behalf of Respondent:




Mylar Map Sheet with Acreage Grid


Reduced coy of Thompson & Donohoo Mapping Template


Letter dtd 6/6/06 – STC Chief Counsel – acreage calculation


Farm Services Administration Aerial Map of Subject


Email Explanation of Exhibit 3


Current Parcel Map


Page V-142 – STC Assessor’s Manual


Assessor’s Statement of Basis of Acreage


Property Record Card – Subject Property




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]

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.[13]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.[14]

Presumption In Appeal

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[15]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 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 correct assessment should be.[16]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[17]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.[18]

In this particular case, the presumption operates to establish initially that the Complainant’s land consists of 170.52 acres, as that is the acreage upon which the Assessor conducted the assessment of the property.The presumption is not evidence of the acreage of the land.However, Complainant carries the burden to present evidence that meets the standard of substantial and persuasive to prove the correct acreage is 160 as he asserts.As will addressed below, Complainant’s burden of proof was not met.

Acreage Determination

It is a recognized rule of construction that metes and bounds in a land description is controlling as to the acreage.Words in deeds of a certain number of acres being conveyed constitute mere descriptive matter, and not a covenant as to acreage.[19]

Hearing Officer’s Determination of Acreage of the Subject Land

Complainants’ Burden of Proof

Ordinarily, the Commission is reviewing an assessment to address the issue of valuation, what the property would have sold for on the given assessment date.In those cases, it is well established that in order to prevail, a 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 the applicable assessment date.[20]Furthermore, in an overvaluation case there is no presumption that the taxpayer’s opinion is correct.

These general principals usually applied to a case in which ascertainment of value is the goal are equally applicable in a case such as this where the taxpayer is challenging the validity of the description of the property under appeal.The taxpayer in a Commission appeal, be it an overvaluation case, or as in this instance and land description case, 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]A valuation which does not reflect the correct description of the property under appeal is an unlawful, unfair and improper assessment.

Complainant’s Position

The Complainant’s case rests upon his understanding that he was deeded 160 acres and therefore the acreage set forth in the deed and the supporting abstract establishes that the land under appeal contains only 160 acres and not 170.52 as calculated under the gAMA program employed by the Assessor.Mr. Welker believes that the fence lines put in place over fifty years ago by his father followed the boundary lines of his property and that they should be utilized to determine his acreage.

Mr. Welker has concerns that a finding that his land is 170 acres would require moving of fences and would impact the acreage of his neighbors’ land that adjoins his.As will be discussed below, such concerns are unfounded.The holding in this decision does not constitute any redrafting of any land conveyance and does not require any changes in the established boundaries of land in Bollinger County.

Respondent’s Position

It is the position of Ms. Elfrink that her office has calculated the acreage for the Welker farm in accordance with the recognized and accepted methodology applied uniformly in Bollinger County in 2012 for the 2013 assessment.She believes that the gAMA program correctly determined the acreage of the subject property.

Hearing Officer’s Determinations

Land Descriptions in General

A section of land in Missouri consists of 640 acres.That is, if the section lays as a true one mile square tract.A true square mile runs 5,280 feet by 5,280 feet.This results in a total square footage for a true square mile of 27,878,400.This divided by the square footage of an acre – 43,560 equals 640 acres.

Sections of land are subdivided into quarter sections, specifically, northeast, northwest, southeast and southwest quarters.Each true quarter section (2,640 feet by 2,640 feet) constitutes a tract of land containing 160 acres.[22]Quarter sections are further divided into quarters, resulting in quarter-quarter sections (northwest quarter of the northeast quarter, etc.).A true quarter-quarter section (1,320 feet by 1,320 feet) is a 40 acre tract of land.In addition, sections, quarter sections and quarter-quarter sections may be divided in half, as in the North half, or the West half, etc.

While it is assumed that sections, quarter sections etc., as just described, contain the given acreages that simple math would dictate, it may or may not be the case.If a section does not truly measure 5,280 square or a quarter section is not a true 2,640 by 2,640, then the resulting acreage will not compute to 640, 160, etc.

Welker Descriptions

Mr. Welker’s land is described in two tracts, both in Section 16, Township 33 North, Range 9 East.The first is the south half of the southeast quarter and the southeast quarter of the southwest quarter, which should be 120 acres.His deed description, in fact, does describe it as 120 acres, more or less.Another way of describing it would be the southeast and southwest quarters of the southeast quarter and the southeast quarter of the southwest quarter.In other words, Tract I is composed of three quarter-quarter sections which should equate to 120 acres.Tract II consists of the northeast quarter of the southeast quarter which would be 40 acres, as set out by the deed, more or less.

The key is that neither Tract I nor Tract II is described by metes and bounds.Their descriptions are what is standard and customary when describing conveyances of sections, quarter sections or quarter-quarter sections.Unless Section 16 is a true one mile by one mile, and unless the southeast quarter is a true half mile by half mile, and each of the quarter-quarters are true quarter miles by quarter miles, then the resulting acreage will be 120 and 40, more or less.The Hearing Officer respects Mr. Welker’s assertion that his fence lines are on the various quarter or quarter-quarter sections lines.However, absent evidence to establish that those metes and bounds were actually established and set prior to the fence lines being constructed, the assertion is speculation.The Hearing Officer has no doubt that the senior Mr. Welker set his fence line on what he understood and believed to be his property line.That, however, does not established that the existing fence was so actually set.

gAMA Survey

The calculations and mapping of the Welker land, by means of the gAMA program constitute an electronic or computer survey of the property.The Hearing Officer recognizes this is not the same methodology as would be employed by a registered surveyor who would locate the marker for the center of section 16 and then proceed to take measurements on the ground to establish metes and bounds for the four quarter-quarter sections involved in this matter.Nevertheless, the computer program which locates specific points on the land and then measures from point to point and calculates the acreage constitutes a survey.As a matter of law, the gAMA survey arriving at an acreage by, in effect, the use of metes and bounds, is controlling over the mere descriptive language in deeds of a certain acreage, more or less.See, Acreage Determination, supra.


Complainant did not present substantial and persuasive evidence to rebut the presumption of correct assessment by the Board.Therefore, the assessment made by the Assessor and sustained by the Board for the subject property must be affirmed.


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

The assessed value for the subject property for tax years 2013 and 2014 is set at $8,090.

Application for Review

A party may file with the Commission an application for review of this decision within thirty days of the mailing date set forth in the Certificate of Service for this Decision.The application shall contain specific facts or law as grounds upon which it is claimed the decision is erroneous.Said application must be in writing addressed to the State Tax Commission of Missouri,P.O. Box 146,Jefferson City,MO65102-0146, and a copy of said application must be sent to each person at the address listed below in the certificate of service.

Failure to state specific facts or law upon which the application for review is based will result in summary denial. [23]

Disputed Taxes

The Collector of Bollinger 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 this 6th day of February, 2014.


 W. B. Tichenor

Senior Hearing Officer



[1] Complaint for Review of Assessment; BOE Decision; Exhibit B


[2] Exhibit C


[3] Exhibit 6


[4] Exhibit C


[5] Exhibits 4 & 6; Testimony of Ms. Elfrink & Ms. Cowell at hearing


[6] Id.


[7] Black’s Law Dictionary – Seventh Edition, sectionReal estate, p. 1356


[8] Black’s Law Dictionary – Seventh Edition, acre – p. 24


[9] Black’s Law Dictionary – Seventh Edition, metes and bounds – p. 1005


[10] Black’s Law Dictionary – Seventh Edition, survey 2 – p. 1459


[11] Exhibit 7; BOE Decision


[12] Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo.


[13] Article X, Sections 4(a) and 4(b), Mo. Const. of 1945


[14] Section 137.115.5, RSMo – residential property at 19% of true value in money; commercial property at 32% of true value in money and agricultural property at 12% of true value in money


[15] Hermel, Inc. v. STC, 564 S.W.2d 888, 895 (Mo. banc 1978); Chicago, Burlington & Quincy Railroad Co. v. STC, 436 S.W.2d 650, 656 (Mo. 1968); May Department Stores Co. v. STC, 308 S.W.2d 748, 759 (Mo. 1958)


[16] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959)


[17] See, Cupples-Hesse, supra.

Substantial and persuasive evidence is not an extremely high standard of evidentiary proof.It is the lowest of the three standards for evidence (substantial & persuasive, clear and convincing, and beyond a reasonable doubt).It requires a small amount of evidence to cross the threshold to rebut the presumption of correct assessment by the Board.The definitions, relevant to substantial evidence, do not support a position that substantial and persuasive evidence is an extremely or very high standard.

“Substantial evidence: Evidence that a reasonable mind would accept as adequate to support a conclusion; evidence beyond a scintilla.”Black’s Law Dictionary, Seventh Edition, p. 580

The word scintilla is defined as “1. a spark,2. a particle; the least trace.” Webster’s New World Dictionary, Second College Edition.Black’s definition at 1347 is “A spark or trace <the standard is that there must be more than a scintilla of evidence>.”There must be more than a spark or trace for evidence to have attained the standard of substantial. Once there is something more than a spark or trace the evidence has reached the level of substantial.Substantial evidence and the term preponderance of the evidence are essentially the same.“Preponderance of the evidence.The greater weight of the evidence; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”Black’s at 1201Substantial evidence is that a reasonable mind would accept as adequate to support the conclusion.Preponderance is sufficient to incline a fair and impartial mind to one side of the issue rather than the other, i.e. support the proposed conclusion.


[18] Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975)


[19] Cantrell v. McDonald, 412 S.W. 2d 403 (Mo. 1967); Becker v. Workman, 530 S.W. 2d 3 (Mo. App. 1975)


[20] Hermel, supra


[21] See, Westwood Partnership v. Gogarty, 103 S.W.3d 152 (Mo. App. E.D. 2003); Daly v. P. D. George Co., 77 S.W.3d 645 (Mo. App. E.D. 2002); Reeves v. Snider, 115 S.W.3d 375 (Mo. App. S.D. 2003).Industrial Development Authority of Kansas City v. State Tax Commission of Missouri, 804 S.W.2d 387, 392 (Mo. App. 1991)


[22] The Hearing Officer will not further burden his Decision by setting forth all of his calculations, as they are simply basic arithmetic exercises.


[23] Section 138.432, RSMo