Fox Creek Homeowners Assn. v. Jake Zimmerman, Assessor St Louis County

June 15th, 2015

State Tax Commission of Missouri


Complainant, )
v. ) Appeal No. 13-15205
Respondent. )





Decision of the County Board of Equalization sustaining the assessment made by the Assessor is SET ASIDE .  Complainant presents substantial and persuasive evidence demonstrating the property should be exempt from taxation for tax year 2013.

Complainant represented by Daniel Peters, Esq.

Respondent represented by Stephanie Hill, Assistant County Counselor.

An evidentiary hearing was held on May 7, 2015.  The case is decided by Senior Hearing Officer, Luann Johnson.


Complainant presented the following exhibits:

  1. Written Direct Testimony of Leslie Foran

Respondent presented the following exhibits:

  1. Petition for Exemption

2          Field Inspection dated October 10, 2013

  1. Notice of Hearing before Board of Equalization
  2. Board of Equalization Notice of Decision and Documentation
  3. Written Direct Testimony of Robert Brisko
  4. Written Direct Testimony of Joseph Craven


Complainant appeals, on the grounds of exemption, the decision of the St. Louis County Board of Equalization, which sustained the Assessor’s valuation of the subject property.  The Commission takes this appeal to determine whether or not the property should be exempt from taxation for tax year 2013.

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 from the decision of the St. Louis County Board of Equalization.
  2. Characteristics of Complainant. Complainant is an unincorporated association of homeowners of the Fox Creek Estates, and includes the subdivision previously known as Dutch Mill subdivision.  The Homeowners Association was established by an indenture at the time the subdivision was created.  It is operated by a volunteer board of governors.  The Homeowners Association was established in 1968.  The swimming pool was opened in 1970.

The board of governors operates the subdivision swimming pool for the benefit of the homeowners, their families, and their guests.  Pool memberships are donated to local schools.  A few pool memberships (less than 20) are sold to non-residents.  Day passes can also be purchased.  Homeowners pay an assessment for maintenance and operation of the pool and common areas.  A management company has been hired to manage the operation of the pool.  The pool is open from late May until early September each year.  Part of the operation of the pool includes providing furniture for the pool area.  No profit is generated by the pool.  The swimming pool, itself, is considered common ground and is not taxed separate and apart from the value placed upon the homes in the subdivision.

There are 383 members in the homeowners’ association.

  1. Identification of Subject Property. The subject property is identified by parcel number B0050772A located at 893 Rustic Manor Circle, Ballwin, Missouri.
  2. Description of Subject Property. The subject property consists of lounges, tables and chairs. Also included are a pool tarp and an ADA chair lift.  The Board of Equalization set the assessed value of the subject property at $4,730.

Burden of Proof

Although a taxing statute is construed strictly against the state, an exemption statute is strictly construed against the one claiming the exemption. State ex rel. Union Electric Co. v. Goldberg, 578 S.W.2d 921, 923 (Mo. banc 1979). In order to prevail, Complainant must demonstrate by substantial and persuasive evidence, that it is entitled to an exemption.

Substantial evidence is that evidence which, if true, has probative force upon the issues, i.e., evidence favoring facts which are such that reasonable men may differ as to whether it established them, and from which the Commission can reasonably decide an appeal on the factual issues. 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).

Statutory Exemptions

Properties which can be exempted from taxation are set out within our Constitution and the statutes enacted to enforce that Constitution, to wit:

“. . .. household goods, furniture, wearing apparel and articles of personal use and adornment owned and used by a person in his home or dwelling place may be exempt from taxation by general law . . .”  Article X, Section 6, Mo. Const. of 1945.

In support of this Constitutional provision, the Legislature has enacted Section 137.010, RSMo, which provides definitions for what constitutes tangible taxable personal property, to wit:

(5)  “Tangible personal property” includes every tangible thing being the subject of ownership or part ownership whether animate or inanimate, other than money, and not forming part or parcel of real property as herein defined, but does not include household goods, furniture, wearing apparel and articles of personal use and adornment, as defined by the state tax commission, owned and used by a person in his home or dwelling place.

Additionally, Section 137.100 RSMo. provides exemptions as follows:

(6) “Household goods, furniture, wearing apparel and articles of personal use and adornment, as defined by the state tax commission, owned and used by a person in his home or dwelling place;”


            Complainant has demonstrated an exempt use for the subject personal property.  The value of the pool and other common areas are not separately assessed because those values are reflected in the market value assigned to the individual homes.  Those areas are “purchased” for the use of the individual homeowners through their purchase of their homes and their annual homeowners dues.  The pool furniture is exempt from taxation for the same reason the pool, itself, is exempt.  It is part of the property commonly owned by the homeowners within the subdivision.  It is held primarily for the private benefit of the resident homeowners.  Exempting the pool, but not exempting the furniture used to enjoy the pool makes little sense.

Respondent suggested that there might be an ordinance requiring taxation if a public use existed.  This argument was not developed and no ordinance was presented.  The argument is not without merit.  If the pool was open to the general public and if the value of the pool was not assessed to the individual homeowners as part of their property value, it might be more logical, convenient and manageable to value the pool and other common areas separately.  Those are not the facts in this case.


The taxable status 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 Clerk is hereby ORDERED to change the taxable status to “exempt” for tax year 2013.

Application for Review

A party may file with the Commission an application for review of this decision within thirty days of the mailing date set forth in the Certificate of Service for this Decision.  The application shall contain specific facts or law as grounds upon which it is claimed the decision is erroneous.  Said application must be in writing addressed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, MO 65102-0146, and a copy of said application must be sent to each person at the address listed below in the certificate of service.

            Failure to state specific facts or law upon which the application for review is based will result in summary denial. Section 138.432, RSMo

Disputed Taxes

The Collector of 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 this 15th day of June, 2015.


Luann Johnson

Senior Hearing Officer



Certificate of Service

I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 15th day of June, 2015, to: Complainants(s) counsel and/or Complainant, the county Assessor and/or Counsel for Respondent and county Collector.


Jacklyn Wood

Legal Coordinator