Erick & Nell Huff v. Kessinger (Greene)

March 6th, 2013

State Tax Commission of Missouri




Complainants, )


v. ) Appeal No. 12-33000





Respondent. )







The assessment made by the Assessor is AFFIRMED. Complainants failed to present substantial and persuasive evidence to establish the true value in money of the property under appeal as of January 1, 2011.

True value in money for the subject property for tax year 2012 is set at $30,000, residential assessed value of $5,700.

Complainant Nell Huff appeared pro se.

Respondent appeared by Counsel, Theodore L. Johnson II, Springfield, Missouri

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


Complainant appeals, on the ground of overvaluation, the valuation of the subject property by the Assessor for tax year 2012. 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.


1. Jurisdiction. Jurisdiction over this appeal is proper. Complainants purchased the property within thirty days prior to the date for filing appeals to the Board of Equalization and therefore had standing to appeal directly to the State Tax Commission.[1]

2. Evidentiary Hearing. The Evidentiary Hearing was held on December 4, 2012, at the Historic Greene County Courthouse, Springfield, Missouri.

3. Subject Property. The subject property is identified by map parcel number 880801200009. It is located on North Farm Road 145 in Greene County. The property consists of a tract of 5 acres. The property is generally a wooded tract of land. There is a zone A flood plain running along the extreme rear portion of the subject site. The flood zone strip along the rear of the tract (452 feet more or less) runs from a width in the Northeast corner of approximately 55 feet to approximately 113 feet in the Northwest corner. There is adequate available space to place a residence out of the flood zone.[2]

4. Subject Property’s Negative Condition. The Complainant’s property as of 1/1/11 was burdened by the existence of an old foundation and debris, old metal roofing, old cellar, abandoned well, old water cistern, buried insulation.[3] These items were the residue of a structure having been torn down in 2007 or 2008. Complainant’s had done considerable cleaning and removal of debris subsequent to their purchase.[4] The existence of these conditions is a negative factor that would have diminished the value of the property on 1/1/11.

5. Property Conveyance History. The conveyance history of the property under appeal consists of the following facts:

A. Conveyed by Successor Trustee under Successor Trustee’s Deed Under Foreclosure, dated 4/25/12 to OakStar Bank. OakStar Bank’s bid for the property was $20,000.[5]

B. Property was listed by OakStarBank with a Realtor® in late May 2012 at $30,000.[6]

C. The day the property went on the market, Complainants made an offer of $14,000. Complainants were the first persons to make an offer of purchase.[7]

D. Complainant’s purchased property on 6/24/12 for $15,000.[8]

6. Assessment. The Assessor appraised the subject property at $30,000 a residential assessed value of $5,700.

7. Complainant’s Evidence. Ms. Huff testified on behalf of Complainants and stated her opinion of value as of 1/1/11 to be $15,000, based upon the purchase of the property on June 22, 2012. Counsel for Respondent objected to Ms. Huff testifying to an opinion of value as of 1/1/11 since the Huffs were not the owners on that date. The objection was taken under advisement to be ruled on in this Decision. See, Ruling on Objection to Opinion of Value, infra.

The following exhibits were received into evidence, without objection on behalf of Complainants:




Settlement Statement dated 6/22/12 – $15,000 purchase price


Warranty Deed dated 6/22/12


Flood Zone Map, FEMA Flood Zone Designations, Memorandum of Agreement


Residential: Standard-Rated Policy (A Zones)


Six Photographs of the subject property


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.[9]

Complainant’s evidence was not substantial and persuasive establish the true value in money as of January 1, 2011, to be $15,000. See, Complainants Fail To Prove Value, infra.

8. Respondent’s Evidence. Respondent presented the testimony and appraisal report (Exhibit1) of Don Agee, Residential Appraiser – Greene County Assessor’s Office. Mr. Agee concluded a value for the Complainant’s property as of 1/1/11 of $32,500, based upon his development of a sales comparison approach relying on four sales of properties deemed to be comparable to the subject. The conclusion of value proffered by Respondent’s appraiser was not substantial and persuasive to establish the value of $32,500. See, Respondent’s Evidence of Value, infra.

9. Conclusion of Value. Neither party presented evidence deemed to be substantial and persuasive to either decrease or increase the assessment for 2012. The fair market value of the subject property as of 1/1/11 determined by the Assessor to be $30,000, assessed residential value of $5,700, is affirmed. See, Conclusion of Value, infra.



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 value by the Assessor, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious.[10]

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.[11] 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.[12]

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.[13] True value in money is defined in terms of value in exchange and not value in use.[14] It is the fair market value of the subject property on the valuation date.[15] 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.[16]


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.[17] 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.[18] Evidence of the actual sales price of property is admissible to establish value at the time of an assessment, provided that such evidence involves a voluntary purchase not too remote in time.[19]

In this appeal, Complainants rely upon the actual sale price as of June 22, 2012. Respondent’s appraiser concluded value relying on the sales comparison approach.

Ruling on Objection to Opinion of Value

Counsel for Respondent objected to Ms. Huff stating an opinion of value for the property under appeal as of 1/1/11, since the Complainants were not the owners on that date. The owner of property is generally held competent to testify to its reasonable market value, even though not qualified as an expert on valuation of land.[20] Counsel for Respondent, however, presents a quite simple and intriguing argument. That is, since Complainants were not the owners on the applicable valuation date, i.e. 1/1/11, they do not qualify under the case law to testify to its reasonable market value.

Relying on upon the Rigali decision Counsel’s objection should be sustained. There is other case law, however, that establishes the general proposition that if a witness knows or has inspected the property, and if the witness has such information, knowledge, and skill which enable him or her to form an intelligent judgment then such a witness is permitted to testify.[21] In this instance, the testimony of Ms. Huff established that she and her husband had knowledge of the subject neighborhood, as well as the subject property, for 13 to 14 years prior to Complainant’s purchase. Ms. Huff was familiar with the approximate time that the structure on the property had been torn down. In addition, the opinion of value was grounded simply upon what had been paid for the property in June 2012.

Objection to Ms. Huff testifying as to an opinion of value as of 1/1/11 is overruled.

Complainants Fail To Prove Value

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, 2011.[22] 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.”[23] 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, requiring a correction to the true value in money as set by the Assessor.

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[24] 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.[25]

In this instance, Complainants’ evidence does not persuade the Hearing Officer that as of January 1, 2011, the fair market value of the property under appeal was only $15,000.

Analysis of Complainants’ Evidence

A review of the evidence presented by Complainants is appropriate. Some of the evidence has certain persuasive elements. However, as will be addressed, it is not sufficient in light of the testimony of Ms. Huff and Respondent’s evidence to carry the day.

Exhibit A – Settlement Statement – June 2012 Purchase

Sale at Relevant Time

Exhibit A established a purchase by Complainants which initially constitutes probative evidence of the value as of the purchase date. That date is approximately 18 months after the valuation date for this appeal. That time does not eliminate the June, 2012 purchase from consideration. Respondent’s appraiser utilized two sales which occurred 21 and 20 months prior to the valuation date. His other two sales occurred 12 and 11 months prior to 1/1/11. There is no evidence upon which the Hearing Officer can make a time of sale adjustment to either the June 2012 purchase or any of Mr. Agee’s comparables. Accordingly, the June 2012 purchase did occur at a time relevant to 1/1/11. That does not, however, establish that the price paid on 6/22/12 was equivalent to the subject’s fair market value on 1/1/11.

Presumption of Market Transaction

There exists in the law a presumption as to the creation of a market transaction. A price agreed to between a willing buyer and seller creates a presumption that the transaction was a market transaction.[26] A party seeking to admit sales evidence bears the burden of showing the sale was voluntary.[27] 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.[28] Therefore, in the present case the evidence presented by Complainants relating to their purchase of the property under appeal creates the presumption that it was a transaction between a willing buyer and seller. In the same manner, the presentation by Mr. Agee of his four sale properties creates the presumption as to each of these properties that each was a transaction between a willing buyer and seller.

Evidence Relative To Marketing Of Subject Property

Had no evidence been forthcoming relative to the history on the subject property and no evidence presented by Respondent, the presumption would have not been rebutted. If that circumstance had existed, Complainants by operation of law would have proven their case. However, that is not the evidentiary circumstance upon which the Hearing Officer must decide the case.

Ms. Huff’s testimony established that in late May, 2012 as she was passing the subject property that a real estate agent was putting up a for sale sign on the property. Ms. Huff inquired as to the asking price. She was informed it was $30,000. Complainant’s made an offer of $14,000. Within approximately a month, the purchase of the property was completed at $15,000.[29]

The only evidence presented simply established that approximately a month after the property was taken back in foreclosure by OakStar Bank it was put on the market for sale at $30,000. It is unclear as to the exact date that Complainants and OakStar signed a contract for the sale at $15,000. It would have been some time in advance of 6/22/12 when the closing took place. There is no evidence as to the activity of counteroffers being made between the Bank and the Huffs. The real estate agent informed the Huffs that by accepting the offer of $15,000 that the bank was not going to recover the amount that it paid at foreclosure. The Huffs were familiar with the property, having been aware of it for 13 or 14 years. Ms. Huff knew that in approximately 2007 or 2008 the structure that had been on the property had been torn down leaving a considerable amount of debris and other items that would require being addressed by any potential buyer. See, FINDING OF FACT 4, supra. Complainants apparently did no research to ascertain what, if any, marketing of the property had been done by the owners (Menzie) prior to foreclosure.

Mr. Agee in his appraisal report completely ignores the foreclosure and any information as to marketing by Menzie prior to foreclosure. Exhibit 1 is devoid of any reference to the fact that the subject had been foreclosed just 2 months prior to Complainants’ purchase. Likewise, Mr. Agee did not see fit to even reference in the appraisal that the property had sold 18 months after the valuation date, a date closer in time to the valuation date than two of his sale comps.

The purchase of a property from a bank that has been listed in the open market, as the subject was, does not automatically disqualify that sale from being considered in a valuation of that property. In those instances where the seller of a property is a bank should tell purchasers and appraisers that due diligence would dictate that a simple investigation into if and how the property might have been exposed to the market prior to the bank obtaining title.

It is possible, on the one hand, that the owners prior to the bank – Menzie – did nothing to attempt to sell the property during 2010, 2011 or 2012 before default was made on the 2008 deed of trust.[30] In which case, there would be no marketing efforts that would provide any information relevant to this matter. However, on the other hand, it is possible that Menzie might have listed the property for sale in 2010 – 2012. If such did occur, it would certainly be relevant as to the possible value as of 1/1/11. For example, had the property been on the market on 1/1/11, the asking price, as well as, any information as to offers made and rejected could have been beneficial in attempting to ascertain the fair market value as of 1/1/11.

Willing Seller – Willing Buyer Transaction

The concept of willing seller – willing buyer that underlies fair market value is that there are certain factors implied within the phrase. See, Standard For Valuation, supra. Given the foregoing, the Hearing Officer is not persuaded that the June 2012 sale constituted a willing seller – willing buyer transaction due to one critical factor.

Typical Motivation

The first factor is a typical motivation on the part of both buyer and seller. The phrases “typical motivation” or “typically motivated” are not terms of art in either appraisal methodology or in the law. A review by the Hearing Officer of the generally recognized texts[31] on real estate appraisal fails to yield any definition or criteria on what constitutes a buyer or seller being typically motivated. Nor was any case law located that addressed defining of the phrase – “typical motivation” or “typically motivated”

Individuals often postulate that a bank can never by “typically motivated” because they always sell off properties at a discount, only seeking to recover what they have in the property and not its true value in money. Such claims, sometimes presented to the Hearing Officer, have never been supported by any actual contact with the bank to ascertain what actually motivated the sale of any given property, or if the bank felt it was getting all the return that could reasonably be realized under the then existing sale conditions.

Simple logic dictates that the typically motivated seller is attempting, under the circumstances existing with regard to the sale of a given property, to realize the highest return possible. The buyer is seeking, under those same circumstances, to purchase the property for the lowest possible cost. These two forces create the tension that results in a seller and buyer coming to an agreement on a price, i.e. fair market value – transaction between willing seller and willing buyer. While in this case accepting an offer that is $5,000 less than was paid in the foreclosure process may not seem to be a transaction that is “typically motivated”, the Hearing Officer is simply without the benefit of any evidence to establish whether the bank acted as other bank sellers would have under the circumstances that existed from the bank’s perspective in May – June of 2012.

Well Informed and Advised – Acting in Own Best Interests

This factor ultimately becomes very subjective on the part of each party to a given transaction. Common sense weighs on the side that based upon the information that a given party has at the time of a purchase of real estate that the party is going to do what the party deems to be in its own best interest. There is no basis to conclude that individuals in selling or purchasing property will deliberately act in their own worst interest. There is no evidence in this specific case that forms a foundation to conclude that either party acted in the June 2012 transaction in other than their respective best interests.

The evidence clearly establishes that the Huff’s were well informed, well advised and acted in what they considered to be their own best interests. They viewed that given the condition of the subject property, with all of its negative factors, which would require considerable time and effort to rectify, that the purchase price of $15,000 represented what they as a buyer considered to be a fair market value.

As to the Bank, it is not specifically known what knowledge it possessed about the property. What can be simply deduced from the evidence is that a loan had been made by the bank in 2008, which was secured by a deed of trust. It is most reasonable to conclude that the bank had carried out the necessary due diligence to underwrite the 2008 loan it was making for which the subject property would be the collateral. OakStar apparently had reasons it deemed were in its own best interest to take as much as it could get, as quickly as the bank could get it, in exchange for the property. The Bank apparently determined that it did not satisfy good business sense to simply hold this property for a possible higher price. In any case, the record is void of evidence upon which the Hearing Officer may conclude that the Bank was not, from its perspective as the seller, both well informed and well advised. It would be mere speculation to conclude that OakStar did not act in what it considered to be its own best interest, by selling the property for $15,000.

Exposure In The Open Market

This element under the willing seller – willing buyer concept is much more susceptible to a more objective analysis. It is upon this critical element that the June 2012 transaction falls short, given the absence of evidence relative to marketing efforts prior to the foreclosure in April 2012. The evidence only established that the property was exposed to the open market for essentially less than a month before the sale was concluded. It in fact was not on the market for more than a day, before Ms. Huff made Complainants’ initial offer. In light of these facts, the Hearing Officer is not convinced that there was exposure in the open market for a time that would be reasonable to ascertain whether other potential buyers might not made offers above what the Huffs had made and closer to the $30,000 asking price.

Payment, Financing & Consideration

Payment for the June, 2012 transaction was in cash, hence meeting the factor relative to payment. Since there was no financing this factor is not applicable. Likewise, as to the consideration, since this was a straight cash transaction, the consideration element is not applicable.


The evidence clearly supports a finding that the factors relative to typical motivation, acting in own best interest, and payment were satisfied in the June 2012 sale. The financing and consideration elements are not applicable with regard to Huff’s purchase. However, the evidence provides no exposure to the open market prior to late May, 2012. Understanding that a sale contract would have normally been executed by the Huffs and OakStar at least a couple of weeks in advance of the actual closing, the subject property could not have actually been on the open market for more than a month, if that long. This simply does not impress the Hearing Officer that such a time period qualifies as a reasonable time being allowed for exposure in the open market.

Therefore, the failure to establish a reasonable time for exposure in the open market defeats the June, 2012 transaction as meeting this factor under the willing seller – willing buyer standard.

Exhibit B – Warranty Deed

The exhibit provides nothing other than verification that the subject property was conveyed on 6/22/12 to Complainants. That fact is not in dispute.

Exhibit C – Flood Zone Information

The exhibit’s only relevance is to establish that a small portion at the back of the subject is in Flood Zone A. That fact is likewise not in dispute. The exhibit does not establish that simply because a small portion of the property is in a flood zone that the owner of the property would be required to purchase flood insurance if a home were to be built on the property.[32] The map that is part of this exhibit shows that the adjoining property to the east and the second property to the east are both also subject to a portion of the properties being in the flood zone. However, there are houses on both properties, houses constructed out of the flood zone. The exhibit while stating “mandatory flood insurance purchase requirements apply to all of these zones” does not establish that the insurance is mandatory if no structure is constructed within the flood zone. Therefore, the small area of flood zone on the subject property is not established to have been a negative influence as of 1/1/11.[33]

Exhibit D – Residential Standard-Rated Premiums (Zone A)

This exhibit sets forth the annual premium for given amounts of coverage on building & contents, building only and contents only for residences in flood zone A. The exhibit does not establish that if a house is built outside of the flood zone that any flood insurance is required. In point of fact, when a house may be constructed on the subject lot, it is highly unlikely that it will be placed in the flood zone at the back of the property. The more likely and suitable location for placement of a house and any other structures would be toward the south of the property away from and out of the flood zone. Consequently, the exhibit fails to establish that flood insurance on structures not located in a flood zone is mandated. Nor does it establish that the small portion of the subject tract in the flood zone was a negative influence on the property on 1/1/11.

Exhibit E – Photographs of Debris and Condition on Subject Property

This series of photographs establishes that the demolition of the structure that had existed on the property prior to 2007 or 2008 had left considerable debris and other elements which would require action by any purchaser on 1/1/11. The debris and conditions shown by the photographs as of late November or early December, 2012, would have only been worse in January 2011, since the Huffs had done considerable clean-up to the property since it had been purchased. The existence of this condition would have clearly been a negative influence on the purchase price as of 1/1/11.

Conclusion Relative to Complainants’ Evidence

The June 2012 purchase price does not persuade the Hearing Officer that it was representative of the price that could have been obtained for the property had it been exposed to the market for a reasonable time period around 1/1/11. Accordingly, Complainant’s failed to establish that $15,000 was the true value in money of the property as it existed under the economic conditions that were in place on 1/1/11.

Respondent’s Evidence of Value

Respondent, when advocating a value different from that determined by the original valuation 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.[34] The Hearing Officer is not persuaded that Respondent’s evidence met the standard to establish the fair market value of the Huffs’ property as of 1/1/11 to have been $32,500.

The Hearing Officer recognizes that Respondent was under no burden to present any evidence of valuation in the appeal. However, when evidence is presented indicating a value greater than the Assessor’s value, the Respondent is advocating that the assessment be increased. In other words, Respondent is asserting that the original assessment, because it was less than indicated by the appraisal, was in error, thereby resulting in an unlawful, unfair or improper assessment. In order for the Hearing Officer to so find and correct the assessment by increasing same, there must be substantial and persuasive evidence as a foundation for such a finding. As will now be addressed, the Hearing Officer does not find that Respondent’s Evidence established the requisite foundation to warrant an increase in the Assessor’s appraised value.

Exhibit 1 – Agee Appraisal Report

The appraisal report received into evidence on behalf of Respondent concluded a value of $32,500 or $6,500 per acre. Mr. Agee presented four land sales. Sales 1 and 2 while being very similar in size to the subject (5.82 and 5 acres respectively) are located in clearly superior locations than the subject. Comps 1 and 2 are primarily open land, but have a greater percentage of land subject to a flood zone than the Huff property. Comp 3, which is the sale which provided an indicated value of $32,500, appears to the Hearing Officer’s mind to possibly be superior to the subject in that it is a clear tract of land whereas the subject is heavily wooded. It also has no flood zone on it, however, as concluded above, the subject flood zone is no hindrance to construction of a house on the subject. Comp 4, due to it being wooded like the subject appears to be more comparable to the subject than the other comps on its site factor. However, the appraiser concluded it was inferior to the subject due to its location.

The one aspect of the valuation that troubles the Hearing Officer is that the appraiser failed to recognize that as of 1/1/11 there was a significant negative factor on the subject property that simply was not established to exist on any of the four sale properties. That factor was the existence of the debris and other conditions existing after the demolition of the house that had existed on the property prior to 2007 – 08. At the time of the appraiser’s inspection during November 2012, this condition would have been clearly in view. Any purchaser of the property on 1/1/11 would have recognized that there was going to be considerable effort expended in cleaning up the property, removing debris, the old foundation and fireplace, correcting the hazards of the abandoned cellar and well, and the open cistern. The cost of this clean up should have been accounted for by adjustments to each of the sale properties, since none of them were burdened by any similar conditions. A negative adjustment to account for this difference would have brought all four comparables closer to the Assessor’s appraised value of $30,000. It would then follow that had this factor been adjusted for the appraiser’s conclusion of value would have fallen below the $32,500 proffered and might have been below the Assessor’s appraised value.

Accordingly, the Hearing Officer does not find the conclusion of value presented by the appraisal to establish that $32,500 represents the subject property’s fair market value as of 1/1/11.

Exhibit 2 – Successor Trustee’s Deed Under Foreclosure

This exhibit is sufficient to establish that the subject property was foreclosed on 4/25/12 for a bid of $20,000. It provides no evidence from which the Hearing Officer can ascertain the fair market value of the subject property as of 1/1/11.

Conclusion of Value

Complainants having failed to present substantial and persuasive evidence addressing the fair market value of the property under appeal as of 1/1/11, the Assessor’s value of $30,000 is not found to be an assessment that was “unlawful, unfair, improper, arbitrary, or capricious”. Therefore, affirmation of the assessment is warranted.

Respondent’s evidence having likewise failed to reach the bar of substantial and persuasive, there is no basis to conclude that the valuation of $30,000 should be set aside as “unlawful, unfair, improper, arbitrary, or capricious”. Accordingly, it is affirmed.

The true value in money of the Complainant’s property as of 1/1/11 was $30,000, assessed residential value of $5,700.


The assessed valuation for the subject property as determined by the Assessor for Greene County for the subject tax day is AFFIRMED.

The assessed value for the subject property for tax year 2012 is set at $5,700.

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. [35]

Disputed Taxes

The Collector of Greene 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 March 6, 2013.



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 6th day of March, 2013, to: Erick Huff, 444 S. Dexter, Springfield, MO 65802, Complainant; Theodore Johnson, Greene County Counselor, 901 St. Louis Street, 20th Floor, Springfield, MO 65806, Attorney for Respondent; Rick Kessinger, Assessor; Richard Struckhoff, Clerk; Scott Payne, Collector, Greene County Courthouse, 940 Boonville, Springfield, MO 65806.


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


573-751-1341 Fax

[1] 12 CSR 30-3.010(1)(B)1(b)


[2] Exhibit 1, Exhibit C


[3] Exhibit E; Testimony of Ms. Huff


[4] Testimony of Ms. Huff


[5] Exhibit 2, page 3 of 3. Foreclosure on a property is not a sale, but a legal proceeding which conveys title. “foreclosure. A legal proceeding to terminate a mortgagor’s interest in property, instituted by the lender (the mortgagee) either to gain title or to force a sale in order to satisfy the unpaid debt secured by the property.” Black’s Law Dictionary, Seventh Edition, 1999.


[6] Testimony of Ms. Huff


[7] Ibid.


[8] Ibid., Exhibits A & B


[9] Section 137.115.1, RSMo.


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


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


[12] Section 137.115.5, RSMo


[13] 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).


[14] 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).


[15] Hermel, supra.


[16] 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.


[17] 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).


[18] 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).


[19] St. Joe Minerals Corp., supra.


[20] Rigali v. Kensington Place Homeowners’ Ass’n, 103 S.W.3d 839, 846 (Mo. App. E.D. 2003); State ex rel. Missouri Highway and Transp. Com’n v. Pracht, 801 S.W.2d 90 (Mo. App. E. Dist., 1990); Casada v. Hamby Excavating Co., Inc., 575 S.W.2d 851 (Mo. App. 1978); Boten v. Brecklein, 452 S.W.2d 86, 95 (Sup. 1970); .

State ex rel. Missouri Highway and Transp. Com’n v. Northeast Bldg. Co., 421 S.W.2d 297 (Mo. 1967);


[21] State ex rel. State Highway Commission v. Bloomfield Tractor Sales, Inc., 381 S.W. 2d 20 (Mo. App. 1964); St. Louis K. & N.W.R. Co v. St. Louis Union Stock-Yard Co., 25 S.W. 399 (Mo. 1894)


[22] Hermel, supra.


[23] 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).


[24] 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.


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


[26] Phoenix Redevelopment Corporation v. Walker, 812 S.W.2d, 881, 883-4 (Mo. App. W.D. 1991).

[27] 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)


[28] Board of Public Bldgs, at 523; See also, Phoenix Redevelopment Corp. v. Walker, 812 S.W.2d 881 (Mo App. 1991)


[29] Testimony of Ms. Huff


[30] Deed of Trust from Menzie to Trustee on behalf of OakStar Bank, was recorded on 5/1/08.


[31] The Dictionary of Real Estate Appraisal, Third Edition, Appraisal Institute, 1993 (no definition); Real Estate Appraisal Terminology, Revised Edition, Society of Real Estate Appraisers, 1984 (no definition); Real Estate Valuation in Litigation, J. D. Eaton, American Institute of Real Estate Appraisers, 1982 (no definition); The Appraisal of Real Estate, Thirteenth Edition, Appraisal Institute, 2008 (no definition); 2012-2013 Uniform Standards of Professional Appraisal Practice, The Appraisal Foundation, (no definition)

[32] Exhibit 1 – first page – SITE: “It is likely that a lender will require a survey showing the location of the house in relation to the flood zone but no flood insurance should be required per Stan Triplett, Manager of Residential Loans at Commerce Bank of Springfield.


[33] Exhibit 1 – first page – RECONCILIATION: “Comps 1 and 2 both have Zone A flood plains that cover a significant larger portion of their sites than does the flood zone on the subject site. Both comps indicate that there is no measurable negative impact on market value due to the flood plain when the site is otherwise buildable.”


[34] Hermel, Cupples-Hesse, Brooks, supra.


[35] Section 138.432, RSMo.