Flint William & Toni Ray v. Pennel (Taney)

November 8th, 2013

State Tax Commission of Missouri

FLINT WILLIAM & TONI RAY,                            )

Complainants,             )

v.                                                                      )      Appeal No.12-89514

CHUCK PENNEL, ASSESSOR,                                )

TANEY COUNTY, MISSOURI,                               )

Respondent.                 ) 



The assessment made by the Assessor is SET ASIDE.Complainants presented substantial and persuasive evidence to establish the true value in money for the subject property.

True value in money for the subject property for tax year 2012 is set at $550,000, commercial assessed value of $176,000.

Complainants represented by Counsel, William G. Todd, Springfield, Missouri.

Respondent represented by Counsel, Jason Coatney, Keck Austin, Springfield, Missouri.

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


Complainant appeals, on the ground of overvaluation, the Assessor’s 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.[1]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. Complainant timely appealed to the State Tax Commission.[2]

2.  Submission on Complainants’ Evidence.  Respondent waived evidentiary hearing and consented to the submission of the case on Complainants’ exhibits.[3]

3.  Identification of Subject Property.  The subject property is identified by map parcel number 07-7.0-35-000-000-001.001L. It is further identified as 3506 Shepherd of the Hills, Branson, Missouri.[4]

4.  Description of Subject Property.  The subject property consists of a 6.81 acres tract of land.There are 2.56 acres which are improved by an 18,000 square foot retail building.This is the portion of the Complainants’ property that is under appeal.The remaining 4.25 acres is assessed as agricultural land and is not at issue in this appeal.[5]A detailed description of the commercial portion of the subject is provided in Exhibits A and E.

5.  Assessment.  The Assessor appraised the property under appeal at $1,340,810, an assessed commercial value of $429,100.The agricultural portion was given an assessed value of $40.[6]

6.  Complainant’s Evidence.  Complainant offered into evidence the following exhibits, which were not objected to, and are received into the record.




Appraisal – Jerry Jeschke


2012 Property Record Card


2013 Property Record Card – dated 4/10/13


Board of Equalization Decision, dated 7/11/13


Written Direct Testimony – Flint W. Ray


Written Direct Testimony – Jerry Jeschke

 7.  No Evidence of New Construction & Improvement.  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.[7]

8.  Respondent’s Evidence.  Respondent offered no evidence on the issue of the true value in money of the property under appeal as of 1/1/11.

9.  Value Established.  The evidence presented by Complainant was substantial and persuasive to establish the fair market value of the commercial portion of the subject property to be $550,000, assessed commercial value of $176,000. See, Complainants Prove 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 the board of equalization, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious.[8]

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.[9]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.[10]

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.[11]True value in money is defined in terms of value in exchange and not value in use.[12]It is the fair market value of the subject property on the valuation date.[13]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.[14] 

Complainants’ appraiser concluded his value for the property under appeal following the Standard For Valuation.[15]

Weight to be Given Evidence

The Hearing Officer is not bound by any single formula, rule or method in determining true value in money, but is free to consider all pertinent facts and estimates and give them such weight as reasonably they may be deemed entitled.The relative weight to be accorded any relevant factor in a particular case is for the Hearing Officer to decide.[16]


The Hearing Officer as the trier of fact may consider the testimony of an expert witness and give it as much weight and credit as he may deem it entitled to when viewed in connection with all other circumstances.The Hearing Officer is not bound by the opinions of experts who testify on the issue of reasonable value, but may believe all or none of the expert’s testimony and accept it in part or reject it in part.[17]

The only evidence on the record that addresses the issue of fair market value is that provided by Complainants, specifically, the appraisal and written direct testimony of Mr. Jeschke.[18] The Hearing Officer finds the Jeschke conclusion of value to constitute substantial and persuasive and must be given that probative weight.

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.[19]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.[20]Mr. Jeschke appraised the Complainants’ property utilized all three of the recognized approaches to valuation.

Opinion Testimony by Experts

If specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert on that subject, by knowledge, skill, experience, training, or education, may testify thereto.

The facts or data upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reliable, the facts or data need not be admissible in evidence.[21]

Mr. Jeschke is qualified by his knowledge, skill, experience, training and education to testify on the issue of the fair market value of Complainants’ property.His conclusion of value was based and premised on the type of information and data reasonably relied upon by appraisal experts for forming an opinion of value of properties such as the subject.

Complainants’ 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.

Complainants met their burden of proof, as previously addressed by the submission of the Jeschke appraisal.Said appraisal established that the assessment of the property, being in excess of the fair market value of the property as of 1/1/11 was an unlawful, unfair and improper assessment.


The assessed valuation for the subject property as determined by the for Taney County for the subject tax day is SET ASIDE.

The assessed value for the subject property for tax year 2012 is set at $176,040 ($176,000 – commercial and $40 – agricultural).

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. [24]

Disputed Taxes

The Collector of Taney 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 November 5, 2013.


 W. B. Tichenor

Senior Hearing Officer


[1] The value as of 1/1/11 remains the value as of 1/1/12 unless there is new construction and improvement to the property.Section 137.115.1, RSMo.

 [2] Complainants did not receive notice of the change in assessment and thereby were not informed of their appeals rights before the Taney County Board of Equalization.The appeal to the Commission was perfected under 12 CSR 30-3.010 (1) (B).

 [3] Emails dtd 9/17/13 – 3:16 PM & dtd 10/2/13 – 5: 46 PM

 [4] Complaint for Review of Assessment; Exhibits B, C & D

 [5] Exhibits A, B, C & E

 [6] Exhibits B & C

 [7] Section 137.115.1, RSMo.

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

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

 [10] Section 137.115.5, RSMo – residential property at 19% of true value in money; commercial property at 32% of true value in money and agricultural property at 12% of true value in money.

 [11] 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).

 [12] 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] Hermel, supra.

 [14] 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.

 [15] Exhibit A, p. 9

 [16] St. Louis County v. Security Bonhomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977); St. Louis County v. STC, 515 S.W.2d 446, 450 (Mo. 1974); Chicago, Burlington & Quincy Railroad Company v. STC, 436 S.W.2d 650 (Mo. 1968).

 [17] St. Louis County v. Boatmen’s Trust Co., 857 S.W.2d 453, 457 (Mo. App. E.D. 1993); Vincent by Vincent v. Johnson, 833 S.W.2d 859, 865 (Mo. 1992); Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. 1991); Curnow v. Sloan, 625 S.W.2d 605, 607 (Mo. banc 1981).

 [18] Exhibits A & F

 [19] 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).

 [20] 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).

 [21] Section 490.065, RSMo; State Board of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. SC. 2004); Courtroom Handbook on Missouri Evidence, Wm. A. Schroeder, Sections 702-505, pp. 325-350; Wulfing v. Kansas City Southern Industries, Inc., 842 S.W.2d 133 (Mo. App. E.D. 1992).

 [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] Section 138.432, RSMo.