Donald Fisher Ministries dba House of Abigail v. Daniel Frank, Assessor Howell County

June 15th, 2018

STATE TAX COMMISSION OF MISSOURI

DONALD FISHER MINISTRIES, )    
dba House of Abigail, )    
                      Complainant, )    
  )    
v. ) Appeal No. 17-61500
  )    
DANIEL FRANK, ASSESSOR )    
HOWELL COUNTY, MISSOURI, )    
  )    
                      Respondent. )    

 

DECISION AND ORDER

HOLDING

Decision of the Howell County Board of Equalization (BOE) is AFFIRMED.  Donald Fisher Ministries dba House of Abigail, (Complainant) did not present substantial and persuasive evidence establishing the property is exempt under Article X, Section 6 of the Missouri Constitution.

SUMMARY

The evidentiary hearing in this case was scheduled to begin at 8:00 a.m., April 18, 2018, at the Howell County Courthouse, West Plains, Missouri.  Counsel for Complainant failed to appear at the evidentiary hearing and failed to prosecute the appeal.  A witness for Complainant appeared.  Respondent Daniel Franks, Assessor, Howell County, Missouri, (Respondent) appeared in person and announced ready for trial.  Respondent announced that he would have no objection to the appeal being submitted on the record upon consent by Complainant’s counsel.

 

ISSUE

Complainant appealed on the ground of exemption.

The Hearing Officer enters the following Decision and Order.

FINDINGS OF FACT

  1. Jurisdiction. Jurisdiction over this appeal is proper.  Complainant timely appealed to the STC.
  2. Identification of Subject Property. The subject property is located at 323 W. First Street, Howell County, Missouri.  The property is identified by map parcel number 01-5.0-22-003-018-010.00000.
  3. Procedural History. On September 29, 2017, Counsel for Complainant entered his appearance.  On the same date, State Tax Commission issued an order assigning the hearing officer, Senior Hearing Officer John Treu.  The appeal was scheduled for an Evidentiary Hearing on April 18, 2018, at 8:00 a.m., at the Howell County Courthouse, in West Plains, Missouri.  The order informed Complainant that, if he could not attend the Evidentiary Hearing and needed a continuance, a request must be made in writing and filed with the Commission no later than five days before the date of the Evidentiary Hearing, not including intermediate Saturdays, Sundays, and legal holidays.  The order warned Complainant’s counsel that if he did not appear at the hearing and no timely request for continuance were made, the appeal would be dismissed for failure to prosecute.

On April 3, 2018, the parties were reminded the appeal was set for hearing on April 18, 2018 at 8:00 am.  The parties were notified that the appeal was reassigned to Chief Counsel Monaghan as SHO Treu would be unable to hear the appeal on the date scheduled.

On April 18, 2018, STC was convened for the evidentiary hearing.  Respondent announced ready.  A witness appeared on behalf of Complainant.  Complainant’s counsel failed to appear.

Complainant’s counsel did not make a request, timely or otherwise, for a continuance of the Evidentiary Hearing.  Complainant’s counsel did not communicate with the Hearing Officer regarding Complainant’s attendance at the Evidentiary Hearing.

Chief Counsel Monaghan communicated with Complainant’s counsel on April 18, 2018 and April 30, 2018 regarding his failure to appear.  Counsel, on April 30, 2018, stated that he would speak to the Assessor regarding the issue.

No motions or other communications were made by counsel.

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 BOE, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious.  Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo. 

 

Presumption In Appeal

There is a presumption of validity, good faith and correctness of assessment by the County BOE.  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).   This presumption is a rebuttable rather than a conclusive presumption.   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. Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).

ORDER

Complainant’s Counsel failed to appear and to prosecute the appeal to rebut the presumption that the BOE’s determination of the TVM of the subject property was correct.

An Order was issued setting forth the date and time for the Evidentiary Hearing.  The written order informed Complainant’s counsel that, if he could not attend the Evidentiary Hearing and needed a continuance, a request must be made in writing and filed with the Commission no later than five days before the date of the hearing, not including intermediate Saturdays, Sundays, and legal holidays.  The order warned Complainant’s counsel that if he did not appear at the hearing and no timely request for continuance were made, the appeal would be dismissed for failure to prosecute.  Complainant’s counsel made no request to continue the Evidentiary Hearing and did not otherwise communicate with the Hearing Officer.  Therefore, because Complainant’s counsel failed to appear at the Evidentiary Hearing and failed to prosecute the appeal, the BOE’s determination that the subject property was not exempt from ad valorem taxation is AFFIRMED.

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. Section 138.432, RSMo

Disputed Taxes

The Collector of Howell 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 15th day of June, 2018.

STATE TAX COMMISSION OF MISSOURI

 

Maureen Monaghan

Chief Counsel

 

Certificate of Service

I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 15th day of June, 2018, to: Complainants(s) counsel and/or Complainant, the County Assessor and/or Counsel for Respondent and County Collector.

Jacklyn Wood

Legal Coordinator