Dust v. Davis

April 4th, 2008

State Tax Commission of Missouri






v.) Appeal Number 07-62502












Decision of the Jasper County Board of Equalization reducing the assessment made by the Assessor is AFFIRMED.Hearing Officer finds presumption of correct assessment not rebutted. True value in money for the subject property for tax years 2007 & 2008 is set at $220,315, residential assessed value of $41,860.

Complainant appeared pro se.

Respondent appeared by Assistant Prosecuting Attorney, Jeremy Crowley.

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


The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2007.


Complainant appeals, on the ground of overvaluation and discrimination, the decision of the Jasper County Board of Equalization, which reduced the valuation of the subject property.The Assessor determined an appraised value of $230,950, assessed value of $43,880, as residential property.The Board reduced the value to $220,315, assessed value of $41,860.Complainant proposed a value of $208,148 on the Complaint for Review of Assessment.A hearing was conducted on February 5, 2008, at the Jasper County Courthouse Annex,Carthage,Missouri.

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

Complainant’s Evidence

Complainant testified in her own behalf.Exhibit A was received into evidence on behalf of Complainant.Exhibit A consisted of the following documents:

1.                  Cover letter to the Commission discussing the valuation of property at105 Zachary Lane versus the valuation of the subject property, with photographs of bothZachary Lane properties.


2.                  A series of internet stories related to the national real estate market in 2007.

Ms. Dust gave her opinion of value for the property under appeal as $208,148 on the complaint for review of assessment.

On or about February 11, 2008, Complainant called the Hearing Officer inquiring as to filing a document out of time.On February 19, 2008, the Hearing Officer issued his order on Filing Document Out of Time.Respondent was given until and including March 5, 2008, to file any objections to the document being filed out of time.Respondent made no response.

The document submitted was a letter to Complainant, dated June 11, 2007, signed by Heather Owens of Pro 100 Realtors,Joplin,Missouri.According to Ms. Owens, if the subject home was listed for sale “in today’s market, it would sell for approximately $212,000.Said letter without objection of Respondent was received into evidence as of February 13, 2008, the date received.

On February 27, 2008, the Hearing Officer received a letter from Complainant, with a copy of a letter to Respondent dated June 15, 2007, discussing a group of properties identified as comparable properties.These letters are not received into evidence.

Respondent’s Evidence

Respondent offered into evidence the appraisal report (Exhibit 1) of Ms. Christine Meadows, appraiser for Respondent.The appraiser testified as to her appraisal of the subject property.Exhibit 1 was received into evidence.Exhibit 1 concluded on a value for the subject property of $220,330 based upon a cost analysis.This value was supported by an analysis of sales of three properties.

Respondent’s evidence established that the sales in 2007 of the property next to the subject and the property three lots from the subject were for values of $96.19 and $89.04 per square foot of living area.The third property has sold in 2005 for $88.13 per square foot of living area.These unadjusted values supported the value established for the subject which calculated to a per square foot value of $92.42.


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

2.The subject property is located at 125 Zachary Lane, Carl Junction, Missouri.The property is identified by parcel number 16-5.0-16-40-011-057.028.The property was purchased by Complainant in September, 2005 for $224,000.Exhibit 1.It was appraised for ad valorem tax purposes in 2006 at $192,730, or $31,270 below the actual sales price.Exhibit A.

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

4.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, to be $208,148 or $212,000.



The Commission has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious.Article X, section 14, Mo. Const. of 1945; Sections 138.430, 138.431, RSMo.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.Section 138.431.4, RSMo.

Presumptions In Appeals

There is a presumption of validity, good faith and correctness of assessment by the CountyBoardof Equalization.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).

The presumption of correct assessment is rebutted when the taxpayer presents substantial and persuasive evidence to establish that the assessor’s or Board’s valuation is erroneous and what the fair market value should have been placed on the property.Snider, Hermel & Cupples Hesse, supra.The evidence presented by Ms. Dust did not address the issue of the fair market value of the subject property.It did not provide market data relevant to the January 1, 2007, assessment date to rebut the presumption of correct assessment.

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.St. Joe Minerals Corp. v. State Tax Commission, 854 S.W.2d 526, 529 (Mo. App. E.D. 1993); Missouri Baptist Children’s Home v. State Tax Commission, 867 S.W.2d 510, 512 (Mo. banc 1993).It is the fair market value of the subject property on the valuation date.Hermel, supra.

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.


Real Estate Appraisal Terminology, Society of Real Estate Appraisers, Revised Edition, 1984; See also, Real Estate Valuation in Litigation, J. D. Eaton, M.A.I., American Institute of Real Estate Appraisers, 1982, pp. 4-5; Property Appraisal and Assessment Administration, International Association of Assessing Officers, 1990, pp. 79-80; Uniform Standards of Professional Appraisal Practice, Glossary.

Complainant Failed to Meet Burden of Proof

In order to prevail, 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 January 1, 2007.Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, at 897.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.” 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).

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.See, Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).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.Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975).

The owner of property is generally held competent to testify to its reasonable market value. Boten v. Brecklein, 452 S.W.2d 86, 95 (Sup. 1970).The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.Shelby County R-4 School District v. Hermann, 392 S.W.2d 609, 613 (Sup. 1965).The evidence tendered by Ms. Dust addressed what she considered to be discrimination or error based upon the comparison of the percentage of increase between the subject property and the property at 105 Zachary.

Failed to Prove Fair Market Value

Differences in percentages of increase have no probative weight in arriving at fair market value.Such an analysis is not a recognized methodology for appraisal of real estate.St. Joe Minerals Corp. v. STC, 854 S.W.2d 526, 529 (App. E.D. 1993); Aspenhof Corp. v. STC, 789 S.W.2d 867, 869 (App. E.D. 1990); Quincy Soybean Company, Inc., v. Lowe, 773 S.W.2d 503, 504 (App. E.D. 1989), citing Del-Mar Redevelopment Corp v. Associated Garages, Inc., 726 S.W.2d 866, 869 (App. E.D. 1987); and State ex rel. State Highway Comm’n v. Southern Dev. Co., 509 S.W.2d 18, 27 (Mo. Div. 2 1974).Therefore, the opinion of value of $208,148 concluded by Ms. Dust was not based upon proper appraisal elements.That opinion did not rest upon any recognized foundation for valuation of real property in an appeal before the Commission.Accordingly, no probative weight can be given to it.

Owens’ Opinion of Value Unpersuasive

Turning to the opinion of value of $212,000 tendered by Ms. Dust after the close of hearing, it is likewise unpersuasive.This opinion of value is from Heather Owens.No evidence is provided as to what qualifications Ms. Owens might possess to render her opinion of value.Furthermore, the opinion of value is based upon some unidentified homes that have “recently closed.”The opinion itself was as of June 11, 2007.There was nothing to demonstrate that the $212,000 opinion of value was applicable to the assessment date of January 1, 2007.For all of the foregoing reasons, the Hearing Officer finds no probative value to the opinion of Ms. Owens.

Owner’s Analysis of Sale Properties

Complainant’s attempt to establish value based upon her analysis of three sale properties by her letter of June 15, 2007 (not received into evidence) would not have been persuasive either.The owner may not support an opinion of value by reference to comparable sales unless the owner qualifies as an expert.State ex rel. Missouri Hwy. and Tr. Comm’n v. McDonald’s Corp., 872 S.W.2d 108, 113 (Mo. App. E.D. 1994); State ex rel. Missouri Hwy. and Tr. Comm’n v. Pracht, 801 S.W.2d 90, 94 (Mo. App. E.D. 1990).There is no evidence in the record by which the Hearing Officer could conclude that the taxpayer was an expert in the valuation of real property.

The June 15th letter was not received into evidence, because it was available for Ms. Dust to present at evidentiary hearing.The letter could have been offered at the evidentiary hearing, and should have been to have permitted Respondent’s Counsel the opportunity to pose any objections.A Complainant is not entitled to a second bit at the evidentiary apple just because of their own error in offering exhibits at hearing.Latitude was extended to the taxpayer upon her request to file the Owens’ letter out of time.The lack of Respondent’s objection allowed it to come into the record.

2005 Purchase of Subject

An overriding fact in this case is that in September, 2005 Ms. Dust purchased the subject property for $224,000.That sale, only 15 months prior to assessment date, is not too dated to be considered in valuing the property as of January 1, 2007.That sale shows the per square foot of living area value of $93.96.This is consistent with the other unadjusted sales prices shown in Exhibit 1.

Failed To Establish Discrimination

The analysis presented by Ms. Dust does not establish discrimination.In order to obtain a reduction in assessed value based upon discrimination, the taxpayer must establish the average assessment ratio for residential property in the county and that the subject property is assessed at a ratio greater than that average. Koplar v. State Tax Commission, 321 S.W.2d 686, 690, 695 (Mo. 1959).Evidence of value and assessments of a few properties does not prove discrimination.Substantial evidence must show that all other property in the same class, generally, is actually undervalued.State ex rel. Plantz v. State Tax Commission, 384 S.W.2d 565, 568 (Mo. 1964).The difference in the assessment ratio of the subject property the average assessment ratio in the subject county must be shown to be grossly excessive.Savage v. State Tax Commission of Missouri, 722 S.W.2d 72, 79 (Mo. banc 1986).No other methodology is sufficient to establish discrimination.Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696 (Mo. 1958).

Ms. Dust’s evidence comparing the percentage of increase in valuation for one property to her property does not qualify as substantial and persuasive evidence to prove discrimination. It does not meet the standard established by case law. The taxpayer failed to present market date to establish that her property as of January 1, 2007, had a fair market value of $208,148 or $212,000.Complainant presented no evidence to establish the average residential assessment ratio forJasperCounty.Therefore, there is no way for a conclusion to be drawn that the assessment ratio on the subject property is greater than the average for residential property inJasperCounty.

Articles on Housing Market

Ms. Dust presented a number of articles obtain from the Internet on the housing market.Information of this nature is generally irrelevant when addressing the value of a given property.It does not establish what the local market was actually doing as of the assessment date.Furthermore, the observations are the rankest form of hearsay.While the various facts contained in the articles may in fact be correct, they do not establish fair market value as of January 1, 2007, for the property under appeal.Although taxpayers often place great store by what the economic pundits have to offer about the housing market, the Hearing Officer has found that such information does nothing to move forward the inquiry of what a wiling buyer and seller would have agreed to on a given date for any property.In short, the articles did nothing to support either of the opinions of value tendered by Ms. Dust.


The Complainant having failed to meet her burden of proof on either the issue of the fair value in money of the property or the claim of discrimination cannot prevail.The presumption of correct assessment by the Board having not been rebutted, there is no need to analyze Respondent’s evidence.The Board must be affirmed.


The assessed valuation for the subject property as determined by the Board of Equalization forJasperCountyfor the subject tax day is AFFIRMED.

The assessed value for the subject property for tax years 2007 and 2008 is set at $41,860.

Complainant may file with the Commission an application for review of this decision within thirty (30) days of the mailing of such decision.The application shall contain specific grounds upon which it is claimed the decision is erroneous. Failure to state specific facts or law upon which the appeal is based will result in summary denial.Section 138.432, RSMo 2000.

If an application for review of this decision is made to the Commission, any protested taxes presently in an escrow account in accordance with this appeal shall be held pending the final decision of the Commission and an order to the Collector to release and disburse the impounded taxes.§139.031.3, RSMo.If no application for review is received by the Commission within thirty (30) days, this decision and order is deemed final and the Collector of Jasper 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.

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 April 4, 2008.





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 4thday of April, 2008, to:Gay Dust, 125 Zachary Lane, Carl Junction, MO 64834, Complainant; Dean Dankelson, Prosecuting Attorney, 601 Pearl, Room 100, Joplin, MO 64801, Attorney for Respondent; Donald Davis, Assessor, 302 S. Main Street, Carthage, MO 64836; Bonnie Earl, Clerk; Stephen Holt, Collector, Jasper County Courthouse, Carthage, MO 64836.





Barbara Heller

Legal Coordinator