State Tax Commission of Missouri
ELSIE PEREL,)
)
Complainant,)
)
v. ) Appeal No.11-10648
)
JAKE ZIMMERMAN,ASSESSOR,)
ST. LOUIS COUNTY, MISSOURI,)
)
Respondent.)
DECISION AND ORDER
HOLDING
Decision of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor is SET ASIDE.
Complainant failed to present substantial and persuasive evidence to rebut the presumption of correct assessment by the Board of Equalization.
Respondent presented substantial and persuasive evidence to rebut the presumption of correct assessment by the Board and establish the true value in money for the property as of January 1, 2011, to be $180,000.
True value in money for the subject property for tax years 2011 and 2012 is set at $180,000, residential assessed value of $34,200.
Complainant appeared by Counsel, Brent R. Waxman, St. Louis, Missouri.
Respondent appeared by Associate County Counselor, Paula J. Lemerman.
Case heard and decided by Senior Hearing Officer W. B. Tichenor.
ISSUE
Complainant appeals, on the ground of overvaluation, the decision of the St. Louis County Board of Equalization, which sustained 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, 2011.The Hearing Officer, having considered all of the competent evidence upon the whole record, 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 St. Louis County Board of Equalization.
2. Evidentiary Hearing.A hearing was conducted on August 16, 2012, at the St. Louis County Government Center, Clayton, Missouri.
3.Subject Property.The subject property is identified by locator number 18L630227.It is located at 8809 Washington Avenue, University City, Missouri.The property is a tract of land improved by a one story ranch style single family residence.[1]
4.Assessment.The Assessor valued the property at $260,500 a residential assessed value of $49,500.The Board sustained the assessment.[2]
5.Complainant’s Evidence.Complainant tendered Exhibit A.Complainant’s Counsel testified on behalf of his client.Exhibit 1 consisted of the following documents:
|
DOCUMENT |
DESCRIPTION |
|
1 |
Assessor’s Website Property Information – 544 Delprice Ct. |
|
2 |
Assessor’s Website Property Information – 516 Kingdel Dr. |
|
3 |
Assessor’s Website Property Information – 8828 Washington Ave. |
|
4 |
Assessor’s Website Property Information – 545 Delprice Ct. |
Counsel for Respondent objected to Exhibit A.Objection was overruled and Exhibit A was received into evidence.(See, Ruling on Objections, infra)
There was no evidence of new construction and improvement from January 1, 2011, to January 1, 2012, therefore the assessed value for 2011 remains the assessed value for 2012.[3]
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, 2011, to be $155,000, as proposed.See, Complainant Failed To Prove Value, infra.
6.Respondent’s Evidence.Respondent presented the following exhibits which were received into evidence.
Mr. Kraus testified in support of his appraisal and in explanation as to Exhibit 2.Respondent’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, 2011, to be $180,000, as proposed.See, Respondent Proved Value, infra.
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.[5]
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.[6]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.[7]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.[8]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 is not evidence of value.The presumption of correct assessment is rebutted when the taxpayer, or Respondent when advocating a value different than that set by the Board of Equalization, 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.[9]
Complainant’s evidence, as will be addressed below (See, Standard for Valuation, Methods of Valuation, and Complainant Failed To Prove Value), did not constitute substantial and persuasive evidence to rebut the presumption of correct assessment and establish the true value in money for the property under appeal.
Respondent’s evidence, as will be addressed below (See, Standard for Valuation, Methods of Valuation, and Respondent Proved Value), provided substantial and persuasive evidence to rebut the presumption of correct assessment and establish true value in money as of the valuation date.
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]
The conclusion of value tendered by the Respondent’s appraiser was based upon the Standard For Valuation.[14]Complainant did not present evidence to establish a conclusion of value shown to have been developed under the Standard For Valuation.
Methods of Valuation
Proper methods of valuation and assessment of property are delegated to the Commission.It is within the purview of the Hearing Officer to determine the method of valuation to be adopted in a given case.[15]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.[16]Complainant did not present an opinion of value derived from any recognized appraisal methodology.Respondent’s appraiser concluded fair market value based upon the sales comparison approach to value.
Complainant Failed To Prove Value
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, 2011.[17]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.”[18]A valuation which does not reflect the fair market value (true value in money) of the property under appeal is an unlawful, unfair and improper assessment.
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[19]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.[20]
Ruling on Objections
Counsel for Respondent objected to Exhibit A on two grounds; first, on relevance based on the four properties presented being smaller than the subject, and second on no verification of the four sales.Both objections were overruled at hearing.The Hearing Officer now gives further explanation as to the ruling at hearing.
Relevance – Smaller Properties
Respondent’s first objection that the documents in Exhibit A were not relevant based upon each of the properties being smaller than the subject does not establish a basis for exclusion of the documents, but is an argument against what weight the Hearing Officer could give to the sales prices of each of the four properties based on any discrepancy in size of living area between the subject and each of the sale properties.
The total living area of the subject is 2,109 square feet.The total living areas of the four properties in Exhibit A in the order given in Finding of Fact 5 are: 1,782, 1,323, 1,378 and 1,766.The generally accepted living area variance by appraisers for single family residential properties is 500 square feet.The smaller the variance, then the stronger the comparability of a given sale property will be to the property being appraised, all other things being relatively equal.In this instance, each of the presented sale properties is smaller than the subject by the following respective square footages: 327, 786, 731 and 343.Therefore, sales 1 and 4 could be utilized by an appraiser as sale comparables.However, sales 2 and 3 would not generally be acceptable unless there were simply no other sales similar to the subject within the subject neighborhood and within a reasonable time proximate to January 1, 2011.
There is a further relevance issue which Counsel for Respondent did not press.That objection would have addressed the fact that Counsel for Complainant did not present the sales data in conjunction with a sales comparison appraisal of the subject property.Mr. Waxman offered the four sales to establish that these four properties from the subject neighborhood which had sold for the following amounts on the noted dates support the owner’s opinion of value of $155,000:$150,000 – 4/1/11; $170,000 – 11/24/10; $148,750 – 9/27/10; and $160,000 – 4/30/10.
No evidence was presented demonstrate how the raw data of the four sales prices support the value of $155,000.The average for these four sale prices is $157,187.50 or a rounded amount of $157,190.The median value would be $155,000.The Hearing Officer therefore draws the conclusion that the median value of the four sales must have been the owner’s or the Waxman’s methodology for arriving at an opinion of value.The critical problem with this methodology is that it has not been recognized by the Courts of this state or the Commission as a legitimate means for appraising property.Accordingly, it has no relevance as appraisal evidence.
A taxpayer presenting a non-orthodox appraisal methodology must establish that the methodology has validity for the Hearing Officer to give it any probative weight.If the methodology has not been demonstrated to be valid by those in the field of appraisal, then it is not relevant.It does not constitute evidence.The lack of validity of this particular methodology presented on behalf of Complainant is readily apparent when the Hearing Officer calculated the median per square foot value (See, following paragraph) of Complainant’s four sales and then applied it back to each of the four sales.The indicated values were grossly out of line with the sale price reported in the documents.[21]
An even more serious problem with the documentation provided is that it does not actually support a value of $155,000.Assuming for the sake of demonstration that an appraiser would have concluded that no adjustments, other than for living area size, would have been required to have been made to any of the sales (a questionable assumption at best, the Hearing Officer readily admits), the raw per square foot sale prices calculate as follows: $84.18; $128.50; $107.95; $90.60.When these values are applied to the subject’s 2,109 square feet of living area, the following values for the subject are indicated: $177,535; $271,006; $227,667; and $192.075.None of these amounts supports a conclusion of value of $155,000.Even if the Hearing Officer applies the median per square foot sale price ($99.28) to the subject, the indicated value is $209,382.This amount is closer to the value proposed by Respondent at hearing than that proposed by Complainant.
Conclusion
Exhibit A provides no evidence upon which a conclusion of value can be made under any recognized appraisal methodology.
Lack of Verification
The second objection was based upon Counsel for Complainant having not verified each of the four sales.A party seeking to admit sales evidence bears the burden of showing the sale was voluntary.[22] This burden is discharged prima facie, however, because the law presumes the sale price was “freely fixed and no under compulsion.”The burden then shifts to the opposing party to produce evidence that the sale was not voluntary.[23]In the absence of Respondent presenting evidence to establish that the four sales were not between a willing buyer and willing seller, or rebutting the conditions implied in a willing buyer – seller transaction the Exhibit cleared the bar of admissibility.Lack of verification goes to weight, not to admissibility.
Respondent presented Exhibit 2 to counter two of the sales as between a willing buyer-seller.No objection was made so the Exhibit was received into evidence.Exhibit 2 contains a “validation code” for each of the seven properties listed.The code for the property at 545 Delprice Court is a 5.The code for the property at 544 Delprice Court is a 2.The testimony of Mr. Kraus was that the 5 code stands for foreclosure and the 2 for not open market.No further details were presented in explanation.
The Hearing Office understood the testimony to be that Mr. Kraus did not personally verify the conditions of sale on either of these two properties.He simply checked the Assessor’s “Neighborhood Sales Search List” and found that someone had assigned the two respective validation codes.This is a case of classic hearsay, notwithstanding no objection was made.Even assuming that Mr. Kraus could have laid the foundation for admission of this document as a business record, the two applicable codes are expressions of someone’s opinion as to the validity of the two transactions.Someone in the office of the Assessor apparently did actually do some type of research into each of the two sales and obtained sufficient information upon which they were able to conclude an opinion to affix the codes that appear on Exhibit 2.
By court decision entries in business records in the form of opinions are not generally admissible.[24]The Missouri Supreme Court has adopted the view “That entries in the form of opinions are not admissible if the declarant was not an expert making a statement concerning a matter within his expertise and as to which he would be competent to express an opinion if testifying in person.”[25]The validation code information set forth in Exhibit 2 does not constitute any part of observations made or work performed by Mr. Kraus and cannot therefore be admitted under the business records exception to the hearsay rule.[26]Essentially, Exhibit 2 simply sets forth two separate opinions as to the validity of the sales involving the 544 and 545 Delprice Court properties.As such those opinions would have been inadmissible as official records or documents[27] had a timely objection been made to same.
Exhibit 2 having come into the record, the Hearing Officer is not comfortable delegating his responsibility as finder of fact on this point to some unknown staff person or persons as to whether these two sales actually involved a property whose sale price represents a bid a foreclosure or a sale price that was derived from other than an open market transaction.For items such as these, the Hearing Officer requires information as to the underlying facts and circumstances that lead to the opinion of the person conducting the verification to establish the claim asserted.
Conclusion
The lack of verification on properties presented by Mr. Waxman that were challenged by Respondent, as previously stated, goes to weight as opposed to admissibility.The evidence presented in Exhibit 2 is not sufficient in this instance for the Hearing Officer to conclude that the two sales cited should have been excluded.Nevertheless, as addressed on the topic of relevance, Exhibit A failed the substantial and persuasive test.
Owner’s Opinion of Value
The owner of property is generally held competent to testify to its reasonable market value.[28]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[29]The owner’s opinion given on the Complaint for Review of Assessment was $155,000.As best as the Hearing Officer can determine it was based upon the median sale price, unadjusted for any differences with the subject, of the four sales provided in Exhibit A.A conclusion of value determined under such a methodology does not constitute proper appraisal practice before the Commission.Accordingly, the owner’s opinion of value was not based upon proper elements or a proper foundation.It has no probative value.An unsubstantiated owner’s opinion is not substantial and persuasive evidence of fair market value.Complainant failed to meet the burden of proof.The presumption of correct assessment by the Board was not rebutted.
Respondent Proved Value
Respondent, when advocating a value different from that determined by the original valuation or a valuation made by the Board of Equalization, must meet the same burden of proof to present substantial and persuasive evidence of the value advocated as required of the Complainant under the principles established by case law.[30]Respondent presented substantial and persuasive evidence to establish a fair market value as of January 1, 2011, to be $180,000 for the subject.Respondent’s appraiser developed an opinion of value relying upon an established and recognized approach for the valuation of real property, the sales comparison or market approach.The sales comparison approach is generally recognized to be the most reliable methodology to be utilized in the valuation of single-family residences.The adjustments made Mr. Kraus were consistent with generally accepted guidelines for the appraisal of property of the subject’s type.The adjustments properly accounted for the various differences between the subject and each comparable.Accordingly, Respondent’s evidence rebutted the presumption of correct assessment by the Board and proved the true value in money for the property as of January 1, 2011, to be $180,000.
ORDER
The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization for St. Louis County for the subject tax day is SET ASIDE.
The assessed value for the subject property for tax years 2011 and 2012 is set at $34,200.
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. [31]
Disputed Taxes
The Collector of St. Louis 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 September 12, 2012.
STATE TAX COMMISSION OFMISSOURI
_____________________________________
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 12thday of September, 2012, to:Brent Waxman, 9378 Olive Blvd., Suite 208, St. Louis, mO 63132, Attorney for Complainant; Paula Lemerman, Associate County Counselor, Attorney for Respondent, 41 South Central Avenue, Clayton, MO 63105; Jake Zimmerman, Assessor, 41 South Central Avenue, Clayton, MO 63105; Eugene Leung, Director of Revenue, County Government Center, 41 South Central Avenue, Clayton, MO 63105.
___________________________
Barbara Heller
Legal Coordinator
Contact Information for State Tax Commission:
Missouri State Tax Commission
301 W. High Street, Room 840
P.O. Box 146
Jefferson City, MO 65102-0146
573-751-2414
573-751-1341 Fax
[1] A detailed description was provided in Exhibit 1 – Addendum Page 1 of 4: DESCRIPTION OF THE IMPROVEMENTS-SUBJECT PROPERTY
[2] Exhibit 1 – Addendum Page 1 of 4: ASSESSMENT INFORMATION AND TAX DATA; Residential property is assessed at 19% of its true value in money (appraised value, fair market value) – Section 137.115.5, RSMo
[8] 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)
[9] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959)
[10] 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).
[11] Daly v. P. D. George Company, et al, 77 S.W.3d 645, 649 (Mo. App E.D. 2002), citing, Equitable Life Assurance Society v. STC, 852 S.W.2d 376, 380 (Mo. App. 1993); citing, Stephen & Stephen Properties, Inc. v. STC, 499 S.W.2d 798, 801-803 (Mo. 1973).
[13] 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.
[14] Exhibit 1, Page 4 of 4: DEFINITION OF “TRUE VALUE IN MONEY” AS SET FORTH BY THE STATE OF MISSOURI
[15] See, Nance v. STC, 18 S.W.3d 611, at 615 (Mo. App. W.D. 2000); Hermel, supra;Xerox Corp. v. STC, 529 S.W.2d 413 (Mo. banc 1975).
[16] 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).
[18] 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).
[19] 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 1201.Substantial 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.
|
Sale |
Sale Price |
Calculated Value |
Variance |
|
1 |
$150,000 |
$176,917 |
+.18% |
|
2 |
$170,000 |
$131.347 |
-.23% |
|
3 |
$148,750 |
$136.807 |
-.08% |
|
4 |
$160,000 |
$175,328 |
+.096% |
[22] Board of Public Bldgs. v. GMT Corp., 580 S.W.2d 519, 523 (Mo.App, 1979); Highway and Transp. Com’n v. Vitt, 785 S.W.2d 708, 713(Mo. App. 1990)
[23] Board of Public Bldgs, at 523; See also, Phoenix Redevelopment Corp. v. Walker, 812 S.W.2d 881 (Mo App. 1991)
[25] State v. Rhone, 555 S.W.2d 839, 841 (Mo. 1977), citing to McCormick on Evidence, 2d Ed., s 307, p. 721 and Standard Oil Co. v. Moore, 251 F.2d 188, 214 (9th Cir. 1957); See also, McCormick on Evidence, 3d Ed., s 307, p. 874-875
[28] Rigali v. Kensington Place Homeowners’ Ass’n, 103 S.W.3d 839, 846 (Mo. App. E.D. 2003); Boten v. Brecklein, 452 S.W.2d 86, 95 (Sup. 1970).
[29] Cohen v. Bushmeyer, 251 S.W.3d 345, (Mo. App. E.D., March 25, 2008); Carmel Energy, Inc. v. Fritter, 827 S.W.2d 780, 783 (Mo. App. W.D. 1992); State, ex rel. Missouri Hwy & Transp. Com’n v. Pracht, 801 S.W.2d 90, 94 (Mo. App. E.D. 1990); Shelby County R-4 School District v. Hermann, 392 S.W.2d 609, 613 (Sup. 1965).