Delmar & Joyce Sutherland v. VanMeter (Buchanan County)

DELMAR AND JOYCE SUTHERLAND,)

)

Complainants,)

)

v.) Appeal Number 09-45006

)

SCOT VANMETER, ASSESSOR,)

BUCHANAN COUNTY, MISSOURI,)

)

Respondent.)

DECISION AND ORDER

UPON REMAND OF APPEAL FROM CIRCUIT COURT

REMAND OF APPEAL

By Judgment of the Circuit Court of Buchanan County, Missouri, the Order of the Commission Affirming Hearing Officer Decision Upon Application for Review of July 26, 2010, was reversed and the appeal was remanded to the Commission for reconsideration of the valuation of the subject property in light of the Judgment of the Court.

HOLDING

Decision of the Buchanan County Board of Equalization sustaining the assessment made by the Assessor is SET ASIDE.True value in money for the subject property for tax years 2009 and 2010 is set at $50,000, residential assessed value of $9,500.

ISSUE

Complainant appeals, on the ground of overvaluation, the decision of the Buchanan County Board of Equalization, which reduced 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 Commission, having considered all of the competent evidence upon the whole record in light of the Judgment of the Circuit Court, 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 Buchanan County Board of Equalization.

2.Assessment.The Assessor appraised the property at $262,410, a residential assessment of $49,860.[1] The Board reduced the value to $214,580, an assessed value of $40,770.

3.Subject Property.The subject property is located at 319 S. 10^th Street, St. Joseph, Missouri.The property is identified by map parcel number 06-3-8-4-4-116.The property is further described in Complainant’s Exhibit 1.

4.Complainant’s Evidence.Complainant offered the following exhibits which were received into evidence:

Witnesses Jeffrey King, Larry Jones (Chief Appraiser – Buchanan County), Susie Danner (Deputy Assessor – Buchanan County), and Joyce Sutherland testified on behalf of Complainant.

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.[2]

Complainant’s evidence was 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 $50,000, as proposed.

5.Respondent’s Evidence.Respondent offered the following exhibits which were received into evidence:

Mr. Jones and Ms. Danner also testified on behalf of Respondent.

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.[3]

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.[4]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.[5]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.[6]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 Commission, as trier of facts, receives the issue free of the presumption.[7]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.[8]Upon presentation of the Complainant’s evidence[9] the presumption in this appeal disappeared.The case is decided free of the presumption.

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.[10]True value in money is defined in terms of value in exchange and not value in use.[11]It is the fair market value of the subject property on the valuation date.[12]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.[13]

Methods of Valuation

Proper methods of valuation and assessment of property are delegated to the Commission.It is within the purview of the Commission to determine the method of valuation to be adopted in a given case.[14]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.[15]Complainant’s appraiser developed both the cost and sales comparison approaches to value.

Complainants’ Burden of Proof

In order to prevail, Complainants must present an opinion of market value and substantial and persuasive evidence that the proposed value is indicative of the market value of the subject property on January 1, 2009.[xvi]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.”[xvii]

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

The appraisal of Mr. King (Exhibit 1) met the standard of substantial and persuasive evidence to rebut the presumption of correct assessment and establish value at $50,000.

ORDER

The assessed valuation for the subject property as determined by the Board of Equalization for Buchanan County for the subject tax day is SET ASIDE.

The assessed value for the subject property for tax years 2009 and 2010 is set at $9,500.

Judicial Review

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 Buchanan 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 July 21, 2011.

STATE TAX COMMISSION OF MISSOURI

Bruce E. Davis, Chairman

Randy B. Holman, Commissioner

ORDER

AFFIRMING HEARING OFFICER DECISION

UPON APPLICATION FOR REVIEW

On January 29, 2010, Senior Hearing Officer Luann Johnson entered her Decision and Order (Decision) affirming the assessment by the Buchanan County Board of Equalization.

Complainants filed their Application for Review of the Decision (3/1/10).Transcript received March 17, 2010, and sent to parties on March 25, 2010.Complainants filed Supplemental Brief (4/30/10).Respondent filed Response Brief (6/1/10).Complainants filed Motion to Strike and Suggestions in Support (6/22/10) and Reply Brief (6/22/10).

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.[20]

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 she 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.[21]

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.[22]

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.[23]

The Hearing Officer was not persuaded by the appraisal presented on behalf of Complainants.None of the points raised by Complainants in their Application for Review establish an error on the part of the Hearing Officer in applying the law to the relevant facts in the appeal.Complainants failed to meet their burden of proof and accordingly the presumption of correct assessment by the Board was not rebutted.

Motion to Strike

Complainant’s Motion to Strike is granted.Copies of documents from Case.net submitted by Respondent with the Response Brief are stricken along with all references to same contained in the Response Brief.

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 Buchanan 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 July 26, 2010.

STATE TAX COMMISSION OF MISSOURI

Bruce E. Davis, Chairman

Jeff W. Schaeperkoetter, Commissioner

DECISION AND ORDER

HOLDING

Decision of the Buchanan County Board of Equalization setting value at $214,580 is AFFIRMED.

Complainant appeared by counsel, Charles T. Frahm.

Respondent appeared by counsel, George Murray.

Case heard and decided by Senior Hearing Officer Luann Johnson.

ISSUE

The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2009, and January 1, 2010.

SUMMARY

Complainants appeal, on the ground of overvaluation, the decision of the Buchanan County Board of Equalization, which reduced the Assessor’s original valuation of $262,410 (assessed value $49,860) for the subject property, to $214,580 (assessed value $40,770).At hearing, Complainant’s appraiser proposed a value of $50,000 (assessed value of $9,500).A hearing was conducted on November 23, 2009, at the Buchanan County Courthouse, St. Joseph, Missouri.

The Hearing Officer, having considered all of the competent evidence upon the whole record, determines that Complainants have failed to present substantial and persuasive evidence sufficient to rebut the presumption in favor of the Board of Equalization, and enters the following Decision and Order.

Complainants’ Evidence

Complainants presented the appraisal report of Jeffery King, which report was entered into evidence as Complainant’s Exhibit 1.Additionally, Complainants presented a list of needed repairs, identified as Complainants’ Exhibit 2, and pictures of the surrounding views, identified as Complainants’ Exhibit 3.

Respondent’s Evidence

<p class="MsoNormal" style="mso-p