Gary & Lisa Calvert v. Jake Zimmerman, Assessor St. Louis County

STATE TAX COMMISSION OF MISSOURI

GARY & LISA CALVERT,	)
	)
Complainant,	)	Appeal No.s	15-11871
	)		15-11872
v.	)		15-11873
	)
JAKE ZIMMERMAN, ASSESSOR	)
ST. LOUIS COUNTY, MISSOURI,	)
	)
Respondent.	)

 

ORDER

AFFIRMING DECISION OF THE HEARING OFFICER

UPON APPLICATION FOR REVIEW

 

On September 7, 2017, Senior Hearing Officer Amy Westermann (Hearing Officer) entered her Decision and Order (Decision) affirming the assessment by St. Louis County Board of Equalization (BOE).

Gary and Lisa Calvert (Complainants) filed an Application for Review of the Decision.  Jake Zimmerman, Assessor of St. Louis County, Missouri (Respondent), filed a Response.  Complainant replied.

Relevant Facts

             The subject properties consist of three parcels amounting to approximately .83 of an acre of real property classified as commercial and located at the addresses referenced in the table, below.  The two parcels located at 7325 West Florissant and 6819 West Florissant consist of automobile service garage buildings.  The parcel at 5814 Janet Avenue is vacant land.

 

Complainant purchased the properties on February 11, 2011.  The transaction involved the purchase of the three parcels subject to this appeal and another parcel.  The four parcels were purchased for $120,000.

In 2015, the Assessor determined market values for the properties of $150,300, $95,900 and $21,500.  The Complainant appealed.  The BOE heard the appeals and sustained the valuations of the Assessor.

Appeal No. 15-11871	7325 West Florissant Ave. St. Louis County, MO Parcel/locator No. 13G231656	$150,300
Appeal No. 15-11872	6819 West Florissant Ave. St. Louis County, MO Parcel/locator No. 13G311680	$95,900
Appeal No. 15-11873	5814 Janet Ave. St. Louis County, MO Parcel/locator No. 13G311691	$21,500
	TOTAL	$267,700

 

The Complainants appealed to the State Tax Commission proposing values of:

Appeal No. 15-11871	Parcel/locator No. 13G231656	$55,000
Appeal No. 15-11872	Parcel/locator No. 13G311680	$60,000
Appeal No. 15-11873	Parcel/locator No. 13G311691	$5,000
	TOTAL	$120,000

 

CONCLUSIONS OF LAW

Standard of Review

A party subject to a Decision and Order of a Hearing Officer with the State Tax Commission (STC) may file an application requesting the case be reviewed by the STC.  Section 138.432 RSMo Cum. Supp. 2015; 12 CSR 30-3.080(4).  The STC may then summarily allow or deny the request.  Section 138.432; 12 CSR 30-3.080(5).  The STC may affirm, modify, reverse, set aside, deny, or remand to the Hearing Officer the Decision and Order of the Hearing Officer on the basis of the evidence previously submitted or based on additional evidence taken before the STC.  Section 138.432; 12 CSR 30-3.080(5)(A).

The STC, having thoroughly reviewed the record and having considered the Decision of the Hearing Officer and the Application for Review of Complainant, finds that a reasonable mind could have conscientiously reached the same result as the Hearing Officer based on a review of the entire record.  Segments of the Hearing Officer’s Decision have been incorporated into our Decision without further reference.

DECISION

Complainant’s Points on Review

            Complainant’s Points of Review were numbered I through III and state as follows:

1. The Hearing Officer erred by not considering Complainants’ Written Direct Testimony, Exhibit A, and Exhibit B, to be sufficient evidence to sustain Complainants’ Burden of Proof;
2. The Hearing Officer erred by not giving any weight to the purchase price for the properties as evidence of TMV in light of the lack of any evidence from Respondent to the contrary;
3. The Hearing Officer erred by not sustaining Complainants’ opinion of value in light of the lack of any rebuttal evidence from Respondent.

Legal Standard

A presumption exists that the assessment by the BOE is correct.  Rinehart v. Bateman, 363 S.W.3d 357,367 (Mo. App. W.D. 2012); Cohen, 251 S.W.3d at 348; Hermel, Inc., 564 S.W.2d at 895.  “Substantial and persuasive controverting evidence is required to rebut the presumption, with the burden of proof resting on the taxpayer.” Cohen, 251 S.W.3d at 348.  Substantial evidence can be defined as such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.  Cupples Hesse Corp. v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).  Persuasive evidence is evidence that has sufficient weight and probative value to convince the trier of fact.  Cupples Hesse Corp., 329 S.W.2d at 702.  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). See also, 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).

There is no presumption that the taxpayer’s opinion is correct. The taxpayer in a STC 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.”  Westwood Partnership, 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. W.D. 1991).

The owner of property is generally held competent to testify to its reasonable market value.   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).   However, the owner’s opinion is without probative value where it is shown to have been based upon improper elements or an improper foundation.  Cohen v. Bushmeyer, 251 S.W.3d 345, (Mo. App. E.D. 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).

The Hearing Officer found that Complainants’ evidence did not reasonably support an opinion that the three subject properties had a TVM of $120,000, as of January 1, 2015.

Complainants purchased the subject properties plus an additional parcel for $120,000 on or about February 11, 2011, nearly four years prior to the tax date at issue. Evidence of the actual sales price paid is admissible to establish value at the time of an assessment provided that such evidence involves a voluntary purchase not too remote in time.  St. Joe Minerals Corp v. State Tax Commission, 854 S.W.2d 526, 529 (Mo. App. ED 1993)   A purchase four years prior to the date may be too remote in time.  Further, Complainant did not present any evidence regarding the market in 2011 and the market in 2015 to support Complainant’s argument that the market had not changed and therefore Complainant’s purchase of the subject properties four years prior is a not relevant sale in which to base TVM for the 2015 tax cycle.

Complainants also presented five sale listings of other properties in Exhibit B.  Exhibit B does not constitute an appraisal using the sales comparison or comparable sales approach as recognized by Missouri Courts.  The comparable sales approach uses prices paid for similar properties in arms-length transactions and adjusts those prices to account for differences between the properties.  Comparable sales consist of evidence of sales reasonably related in time and distance and involve land comparable in character.  This approach is most appropriate when there is an active market for the type of property at issue such that sufficient data is available to make a comparative analysis.  Snider v. Casino Aztar/Aztar Missouri Gaming Corp., 156 S.W. 3d, 341, 347 (Mo. 2005).  (citations omitted).  The listings only provide limited information regarding the properties.  There was no analysis for the similarities and differences between the comparable properties and the subject properties as of the date of valuation.

Summary & Conclusion

The Hearing Officer found that the Complainants failed to present substantial and persuasive evidence to establish a TVM for the properties of $55,000, $60,000 and $5,000.  The purchase was remote in time and not relevant.  The sale listings (Exhibit B) did not qualify as a sales comparison approach and would require much speculation to estimate TVM for the subject properties.    The STC finds that a reasonable mind could have conscientiously reached the same result as the Hearing Officer based on a review of the entire record.  Hermel, Inc. v. STC, 564 S.W.2d 888 (Mo. 1978); Black v. Lombardi, 970 S.W.2d 378 (Mo. App. E.D. 1998); Holt v. Clarke, 965 S.W.2d 241 (Mo. App. W.D. 1998); Smith v. Morton, 890 S.W.2d 403 (Mo. App. E.D. 1995); Phelps v. Metropolitan St. Louis Sewer Dist., 598 S.W.2d 163 (Mo. App. E.D. 1980).

ORDER

The Decision of the Hearing Officer is AFFIRMED.  The Decision and Order of the Hearing Officer, including the findings of fact and conclusions of law therein, is incorporated by reference, as if set out in full, in this final decision of the STC.

Judicial review of this Order may be had in the manner provided in Sections 138.432 and 536.100 to 536.140, RSMo within thirty days of the mailing date set forth in the Certificate of Service for this Order.

If judicial review of this decision is made, any protested taxes presently in an escrow account in accordance with this appeal shall be held pending the final decision of the courts unless disbursed pursuant to Section 139.031.8, RSMo.

If no judicial review is made within thirty days, this decision and order is deemed final and the Collector of  St. Louis County, as well as the collectors of all affected political subdivisions therein, shall disburse the protested taxes presently in an escrow account in accord with the decision on the underlying assessment in this appeal.

SO ORDERED this 9th day of January, 2018.

 

STATE TAX COMMISSION OF MISSOURI

 

 

Bruce E. Davis, Chairman

 

 

Victor Callahan, Commissioner

 

 

Will Kraus, Commissioner

 

Certificate of Service

I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 9th day of January, 2018, to: Complainants(s) counsel and/or Complainant, the County Assessor and/or Counsel for Respondent and County Collector.

Jacklyn Wood

Legal Coordinator

 

STATE TAX COMMISSION OF MISSOURI

 

GARY & LISA CALVERT,	)
	)
Complainants,	)
	)
v.	)	Appeal Nos. 15-11871
	)	15-11872
JAKE ZIMMERMAN, ASSESSOR,	)	15-11873
ST. LOUIS COUNTY, MISSOURI,	)
	)
Respondent.	)

 

DECISION AND ORDER

 

HOLDING

 

The assessments made by the Board of Equalization of St. Louis County (BOE) are AFFIRMED.  Gary and Lisa Calvert (Complainants) failed to present substantial and persuasive evidence to rebut the presumption of correct assessment as to each of the subject properties by the BOE.

For efficiency, the appeals have been consolidated in this Decision and Order.

Complainants appeared by Counsel Richard Dvorak.

Jake Zimmerman, Assessor, St. Louis County, Missouri, (Respondent) appeared by Counsel Edward Corrigan.

Appeals decided by Senior Hearing Officer Amy S. Westermann (Hearing Officer).

ISSUE

In all three cases, Complainants appealed on the ground of overvaluation.  Respondent initially set the true market value (TMV) of the subject properties, classified as commercial properties.  The BOE independently determined that the subject properties were commercial properties and valued them at the same amount as Respondent’s valuations.  The State Tax Commission (STC) takes this appeal to determine the TMV of the subject properties on January 1, 2015.

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 these appeals is proper.  Complainants timely appealed to the STC.
2. Evidentiary Hearing. The parties waived an evidentiary hearing and agreed to submit the appeals on the record of exhibits and evidence.  In addition to the exhibits and evidence, the parties submitted written briefs setting out the applicable facts and legal arguments in the appeals.
3. Identification of Subject Properties. The subject properties are identified as follows:

STC Appeal	Identification of Property	Address
Appeal No. 15-11871	Parcel/locator No. 13G231656	7325 West Florissant Ave. St. Louis County, MO
Appeal No. 15-11872	Parcel/locator No. 13G311680	6819 West Florissant Ave. St. Louis County, MO
Appeal No. 15-11873	Parcel/locator No. 13G311691	5814 Janet Ave. St. Louis County, MO

 

4. Description of Subject Properties. The subject properties consist of three parcels amounting to approximately .83 of an acre of real property classified as commercial and located at the addresses referenced in the table, above.  The two parcels located at 7325 West Florissant and 6819 West Florissant consist of automobile service garage buildings.  The parcel at 5814 Janet Avenue is vacant land.
5. Assessment. Respondent initially set a TMV of the subject properties, classified as commercial, as follows:

STC Appeal	Identification of Property	Respondent’s Appraised TMV
Appeal No. 15-11871	7325 West Florissant Ave. St. Louis County, MO Parcel/locator No. 13G231656	$150,300
Appeal No. 15-11872	6819 West Florissant Ave. St. Louis County, MO Parcel/locator No. 13G311680	$95,900
Appeal No. 15-11873	5814 Janet Ave. St. Louis County, MO Parcel/locator No. 13G311691	$21,500

 

6. Board of Equalization. The BOE independently valued the subject properties, as commercial property, at the same amount as Respondent’s valuations.
7. Complainants’ Evidence.  On appeal before the STC, Complainants submitted the following exhibits:

Exhibit	Description
Written Direct Testimony (WDT)	Gary Calvert, owner of the subject properties
A	Commercial and Industrial Real Estate Sale Contract for the Subject Properties
B	Sales Listings for five Comparable Properties

 

Prior to the parties’ submission of the appeals on the record of exhibits and evidence, Respondent objected to the admission of the WDT of Mr. Calvert and to Exhibits A and B and asked them to be stricken.  Respondent objected to Mr. Calvert’s WDT on the ground that, notwithstanding the fact that Mr. Calvert was the owner of the subject properties and could testify as to the reasonable market value of the properties, Mr. Calvert’s opinion lacked probative value because it was based upon improper elements or an improper foundation, namely the information contained within Exhibit B.  Specifically, Respondent alleged that Mr. Calvert’s opinion of value (1) was based on irrelevant information, particularly the purchase price he paid for the subject properties in February 2011, which included one additional parcel not part of the appeals; (2) constituted an appraisal and appraisal report by an individual who is not a certified or licensed real estate appraiser or an expert witness; and (3) was based on hearsay in that the testimony relied on Exhibit B for support and Exhibit B was hearsay in that it had been offered as substantive evidence rather than as background information, in violation of Section 490.065.3 governing testimony of expert witnesses.  Respondent objected to Exhibit A as irrelevant.  Respondent objected to Exhibit B as irrelevant and as hearsay on the ground that it lacked foundation.

According to the record, on April 27, 2017, Chief Counsel Monaghan, who was the Hearing Officer assigned to the appeals during the discovery stage of the proceeding, entered her ruling excluding Exhibit B from evidence as to the grounds of lack of foundation and hearsay.  On June 16, 2017, along with their opening brief, Complainants filed their Motion to Reconsider Chief Counsel Monaghan’s ruling.  Complainants alleged that the ruling sustained Respondent’s motion on the grounds of foundation and hearsay but not as to relevance.  Complainants further alleged that they sought clarification as to whether Exhibit B would be admissible on the ground of relevance or as an operative fact or as a business record because Exhibit B was not being offered for the truth of the matter asserted but as an operative fact or a business record.  Complainants argued that Mr. Calvert’s WDT showed that Mr. Calvert had hired an outside firm to prepare reports of sales of properties similar to the subject properties, which Mr. Calvert compiled as Exhibit B.  Complainants argued that Exhibit B had been made in the regular course of business, i.e., “managing expenses, like property taxes.”  Respondent subsequently filed his Response in Opposition to the motion arguing, inter alia^[1], that Exhibit B was not admissible as a business record because Mr. Calvert’s WDT did not address or disclose when Exhibit B was made or whether it was made at or near the time of the act, condition, or event, as required by Section 490.680. 

Respondent’s objections to the WDT of Mr. Calvert and Exhibit A are overruled.  The WDT and Exhibit A are legally and logically relevant for understanding the manner by which Mr. Calvert, the property owner, arrived at an opinion of value for the subject properties.    Notably, the provisions of Section 490.065.3 governing the testimony of expert witnesses “shall not prevent a person, partnership, association, or corporation, as owner, from testifying as to the reasonable market value of the owner’s land.”  Generally, an owner may testify as to his opinion of the market value of his real property.  Therefore, the WDT and Exhibit A will be given the weight deemed appropriate when viewed in the context of all of the evidence.

Exhibit B represents the purported market value of properties owned by someone other than Complainants, and the data contained within Exhibit B was collected and reported by someone other than Complainants.  In other words, Complainants do not own the properties reported in Exhibit B; therefore, Mr. Calvert cannot provide an owner’s opinion as to their market value to compare to the subject properties.  However, Mr. Calvert testified that Exhibit B was made in the regular course of business, and Complainants argue that Exhibit B should thus be allowed into evidence.  In his WDT, Mr. Calvert testified that he hired an outside company, Veracity Valuation, to analyze sales data of properties comparable to the subject properties.  Mr. Calvert testified that he obtained the reports to assist Complainants in managing their overall property tax expense liabilities related to the subject properties, which are part of their automotive repair shop business.  Mr. Calvert testified that he kept the report as part of the records he maintains in the ordinary course of Complainants’ business.

According to Section 536.070(10), any writing or record in any contested administrative agency case, whether in the form of an entry in a book or otherwise, made as a memorandum or record of an act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if it shall appear that it was made in the regular course of any business, and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter.  (Emphasis added.)  Furthermore, [a]ll other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of such evidence, but such showing shall not affect its admissibility.  Section 536.070(10).

A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.  Section 490.680 (emphasis added).  The term “business” shall include every kind of business, profession, occupation, calling or operation of institutions, whether carried on for profit or not.  Section 490.670.

Respondent’s objection to the admission of Exhibit B is overruled.  In this limited instance, Exhibit B qualifies as a business record.  With regard to identity of the maker and mode of preparation of Exhibit B, Mr. Calvert testified in his WDT that he hired an outside company to investigate sales of comparable properties and to prepare data reports that Mr. Calvert compiled as Exhibit B to assist him in conducting his business, which includes managing expenses due to property tax liability.  The name of the outside company who made the reports, Veracity Valuation, was noted at the bottom margin of each page in Exhibit B.  With regard to the time of preparation, (1) the reports within Exhibit B show that the transactions, i.e., sales, recorded in Exhibit B occurred between August 2009 and May 2015; (2) the appeals were filed to challenge the 2015 tax assessment placed on the properties by the BOE through its Notices of Decision, dated September 18, 2015; (3) Complainants filed their Complaints for Review with the STC on or about September 24, 2015; (4) the data reported for each comparable property included an expense for the 2016 real property tax assessed on that property; and (5) Complainants filed Exhibit B with the STC on April 10, 2017.  Accordingly, it stands to reason that the reports compiled as Exhibit B were made between the date of the BOE’s Notices of Decision, September 18, 2015, and the date the exhibit was filed, April 10, 2017.  Exhibit B is received into the record to be given the weight deemed appropriate in the context of all the evidence.

8. Presumption of Correct Assessment Not Rebutted. Complainants’ exhibits and evidence were not substantial and persuasive to rebut the presumption of correct assessment by the BOE.

CONCLUSIONS OF LAW AND DECISION

Jurisdiction

The STC has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious, including the application of any abatement.  The Hearing Officer shall issue a decision and order affirming, modifying or reversing the determination of the BOE, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious.  Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo. 

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.  Article X, Sections 4(a) and 4(b), Mo. Const. of 1945.  The constitutional mandate is to find the true value in money (TMV) for the property under appeal.  By statute, real property and tangible personal property are assessed at set percentages of TMV:  residential property at 19%; commercial property at 32%; and agricultural property at 12%.  Section 137.115.5 RSMo (2000) as amended.

Issuance of Decision Absent Evidentiary Hearing

                The Hearing Officer, after affording the parties reasonable opportunity for fair hearing, shall issue a decision and order affirming, modifying or reversing the determination of the BOE, correcting any assessment which is unlawful, unfair, improper, arbitrary or capricious.  Section 138.431.5 RSMo; 12 CSR 30-3.080 (2).

In this case, the parties agreed to submit the case on the record of exhibits and evidence they would have presented at an evidentiary hearing.  Accordingly, the Hearing Officer’s decision is based upon the exhibits and evidence submitted, all of which have been received into the record.

Investigation by Hearing Officer

In order to investigate appeals filed with the STC, the Hearing Officer may inquire of the owner of the property or of any other party to the appeal regarding any matter or issue relevant to the valuation, subclassification, or assessment of the property.  Section 138.430.2 RSMo (2000) as amended.  The Hearing Officer’s decision regarding the assessment or valuation of the property may be based solely upon his inquiry and any evidence presented by the parties or based solely upon evidence presented by the parties.  Id.

Presumption In Appeal

There is a presumption of validity, good faith and correctness of assessment by the BOE – the BOE presumption.  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).  This presumption is a rebuttable rather than a conclusive presumption.   The presumption of correct assessment is rebutted when the taxpayer presents substantial and persuasive evidence to establish that the BOE’s valuation is erroneous and what the fair market value should have been placed on the property.  Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).

The BOE presumption operates in every case to require the taxpayer to present evidence to rebut it.  If Respondent is seeking to prove a value different than that set by the BOE, then Respondent is required to rebut the BOE presumption.

In the present appeals, the BOE independently valued the properties at the same amount as Respondent’s valuations.  Complainants are now seeking to lower the BOE’s valuations; thus, Complainants must present substantial and persuasive evidence to establish that the BOE’s valuation is erroneous and what the fair market value should have been placed on the property.

Burden of Proof

A presumption exists that the assessment by the BOE is correct.  Rinehart v. Bateman, 363 S.W.3d 357,367 (Mo. App. W.D. 2012); Cohen, 251 S.W.3d at 348; Hermel, Inc., 564 S.W.2d at 895.  “Substantial and persuasive controverting evidence is required to rebut the presumption, with the burden of proof resting on the taxpayer.” Cohen, 251 S.W.3d at 348.  Substantial evidence can be defined as such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.  Cupples Hesse Corp. v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).  Persuasive evidence is evidence that has sufficient weight and probative value to convince the trier of fact.  Cupples Hesse Corp., 329 S.W.2d at 702.  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). See also, 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).

There is no presumption that the taxpayer’s opinion is correct. The taxpayer in a STC 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.”  Westwood Partnership, 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. W.D. 1991).

Weight to be Given Evidence

The Hearing Officer is not bound by any single formula, rule, or method in determining true value in money and 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.  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).

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 deemed necessary when viewed in connection with all other circumstances.  Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. W.D. 1991).  The Hearing Officer, as the trier of fact, is not bound by the opinions of experts but may believe all or none of the expert’s testimony or accept it in part or reject it in part.  Exchange Bank of Missouri v. Gerlt, 367 S.W.3d 132, 135-36 (Mo. App. W.D. 2012).

Owner’s Opinion of Value

The owner of property is generally held competent to testify to its reasonable market value.   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).   However, the owner’s opinion is without probative value where it is shown to have been based upon improper elements or an improper foundation.  Cohen v. Bushmeyer, 251 S.W.3d 345, (Mo. App. E.D. 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).

“Where the basis for a test as to the reliability of the testimony is not supported by a statement of facts on which it is based, or the basis of fact does not appear to be sufficient, the testimony should be rejected.”  Carmel Energy at 783.  A taxpayer does not meet his burden if evidence on any essential element of his case leaves the Commission “in the nebulous twilight of speculation, conjecture and surmise.”  See, Rossman v. G.G.C. Corp. of Missouri, 596 S.W.2d 469, 471 (Mo. App. 1980).

Standard for Valuation

Section 137.115 requires that property be assessed based upon its true value in money, which is defined as the price a property would bring when offered for sale by one willing or desirous to sell and bought by one who is willing or desirous to purchase but who is not compelled to do so.  St. Joe Minerals Corp. v. State Tax Commission, 854 S.W.2d 526, 529 (Mo. App. E.D. 1993); Missouri Baptist Children’s Home v. State Tax Commission, 867 S.W.2d 510, 512 (Mo. banc 1993).  True value in money is defined in terms of value in exchange and not value in use.  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).

It is the fair market value of the subject property on the valuation date.  Hermel, supra.

Market value is the most probable price in terms of money that a property should bring in a competitive and open market under all conditions requisite to a fair sale, with the buyer and seller, each acting prudently, knowledgeable and assuming the price is not affected by undue stimulus.

Implicit in this definition are the consummation of a sale as of a specific date and the passing of title from seller to buyer under conditions whereby:

1. Buyer and seller are typically motivated.

 

2. Both parties are well informed and well advised, and both acting in what they consider their own best interests.

 

3. A reasonable time is allowed for exposure in the open market.

 

4. Payment is made in cash or its equivalent.

 

5. Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.

 

6. The price represents a normal consideration for the property sold unaffected by special financing amounts and/or terms, services, fees, costs, or credits incurred in the transaction.  Real Estate Appraisal Terminology, Society of Real Estate Appraisers, Revised Edition, 1984; See also, Real Estate Valuation in Litigation,  J. D. Eaton, M.A.I., American Institute of Real Estate Appraisers, 1982, pp. 4-5; Property Appraisal and Assessment Administration, International Association of  Assessing Officers, 1990, pp. 79-80; Uniform Standards of Professional Appraisal Practice, Glossary.

 

Methods of Valuation

Proper methods of valuation and assessment of property are delegated to the STC.  It is within the purview of the Hearing Officer to determine the method of valuation to be adopted in a given case.   See, Nance v. STC, 18 S.W.3d 611, 615 (Mo. App. W.D. 2000); Hermel, Inc., 564 S.W.2d at 897; Xerox Corp. v. STC, 529 S.W.2d 413 (Mo. banc 1975).  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.   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. 1974).

“For purposes of levying property taxes, the value of real property is typically determined using one or more of three generally accepted approaches.”  Snider v. Casino Aztar/Aztar Missouri Gaming Corp., 156 S.W.3d 341, 346 (Mo. banc 2005), citing St. Louis County v. Security Bonhomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977).  “Each valuation approach is applied with reference to a specific use of the property—its highest and best use.” Snider, 156 S.W.3d at 346-47, citing Aspenhof  Corp., 789 S.W.2d at 869.  “The method used depends on several variables inherent in the highest and best use of the property in question.”  Snider, 156 S.W.3d at 347.

Discussion

In these appeals, Complainants’ evidence was not substantial and persuasive to rebut the presumption of correct assessment by the BOE.  Substantial evidence is that which is relevant, adequate, and reasonably supports a conclusion.  Cupples Hesse Corp., 329 S.W.2d at 702.  Persuasive evidence is that which causes the trier of fact to believe, more likely than not, the conclusion advocated is the correct conclusion.  Id.

Complainants’ evidence did not reasonably support an opinion that the subject properties had a TMV of $120,000 as of January 1, 2015.

First, the WDT of Mr. Calvert and Exhibit A indicated that Complainants purchased the subject properties plus an additional parcel for $120,000 on or about February 11, 2011, nearly four years prior to the tax date at issue.  The date Complainants purchased the subject properties along with a fourth parcel is simply too remote in time to the subject tax date to support Complainants’ opinion of the TMV of the subject properties on January 1, 2015.  Although Complainants argued that “there has not been any real change in property values since the recovery of the great recession in 2008” to justify the assessed value placed on the subject properties on January 1, 2015, this statement is mere conjecture and not supported by any objective statistics or expert testimony.  Complainants have the burden of proving through substantial and persuasive evidence that the BOE’s assessed value is incorrect.

Second, Exhibit A, the sale contract through which Complainants purchased the subject properties, is equivocal as to whether the purchase was a market sale.  A careful reading of the contract indicates that the sale might not have involved a typically motivated seller.  In his WDT, Mr. Calvert testified that the subject properties and the fourth parcel had been on the market for three years before Complainants purchased them.  Mr. Calvert testified that Complainants purchased the subject properties and the fourth parcel as a package.  Notably, the sale contract stated the seller agreed to sell and Complainant agreed to purchase the subject properties on an “AS-IS” basis and contingent upon the “execution and performance of that certain Equipment Lease Agreement with Exclusive Purchase Option dated as of even date herewith.”   The sale contract also stated that, of the $120,000 purchase price, $25,000 was due at closing in “immediately available funds” while $95,000 was “payable by delivery of a promissory note in form attached hereto . . . .”  These contract provisions, in addition to the fact that the subject properties and fourth parcel were a “package” and had been on the market for three years prior to the sale, imply that special terms and conditions particularly favorable to Complainants might have been present in order to consummate the sale.

Third, Complainants’ use of Exhibit B does not constitute a proper use of the comparable sales approach to determining market value as approved by Missouri courts.  Mr. Calvert testified that the two parcels on which automotive garage buildings are situated had market values that fell within a wide range of values:  $20,709 to $66,822.95 for 7325 West Florissant Avenue and $28,437 to $91,758.00 for 6819 West Florissant Avenue.  Mr. Calvert testified that the market value of the vacant land, 5812 Janet Avenue, was “very minimal, perhaps a few thousand dollars.”  The only support for these conclusions was Exhibit B, the reports of comparable sales that had been supplied to Complainants by an outside vendor.  However, the reports are not reliable indicators of the TMV of the subject properties on January 1, 2015, because they are not appraisal reports authored by a state certified appraiser following an inspection of the comparable properties; rather, the reports are essentially sale listings.  The reports provided raw data about the comparable properties, such as their dates of sale and their prices per square foot, but the reports did not make any market-based adjustments to account for similarities and differences between the comparable properties and the subject properties to assist the fact finder in drawing a reasonable conclusion as to the TMV of the subject properties on the relevant tax date. ^[2]  Furthermore, the evidence revealed only two vague descriptors regarding the improvements to one of the subject properties:  Mr. Calvert testified that the condition of 7325 West Florissant was “poor” and that the “property has one bathroom, which has to be shared by customers and employees, which in my mind diminishes its value.”  Mr. Calvert did not elaborate or provide details about the condition of the property or assign a dollar amount to “poor” condition or to a single bathroom.  None of the reports for the comparable properties indicated their conditions or the nature of any of their facilities at the time of their sales and if those conditions or facilities influenced their sale prices.

Consequently, one would be required to engage in speculation to conclude that the subject properties minus the fourth parcel had a TMV of $120,000 as of January 1, 2015, based on Complainants’ evidence.

Conclusion

Complainants did not present substantial and persuasive evidence to support their opinion of TMV as of January 1, 2015.

ORDER

In these appeals, the assessed valuations of the subject properties as determined by the BOE for the subject tax day are AFFIRMED.

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 September 7, 2017.

STATE TAX COMMISSION OF MISSOURI

Amy S. Westermann

Senior Hearing Officer

 

Certificate of Service

I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 7th day of September, 2017, to: Complainants(s) counsel and/or Complainant, the County Assessor and/or Counsel for Respondent and County Collector.

 

Jacklyn Wood

Legal Coordinator

^[1] Complainants filed their Motion to Reconsider along with their Opening Brief on June 16, 2017.  Respondent simultaneously filed his Opening Brief on June 16, 2017.  On June 19, 2017, the Hearing Officer informed the parties that Complainants’ Motion to Reconsider would be taken with the case, which would not be taken under advisement until the due date for the parties’ responsive briefs had passed.  On July 3, 2017, Respondent filed his responsive brief along with his Response in Opposition to the Motion to Reconsider.  Without citation to any specific statute, rule, or case law, Respondent argued that the Motion to Reconsider was an untimely and improperly filed offer of proof that Complainants were required to file prior to the date the parties had agreed to submit the appeal on the record of exhibits and evidence and waived the evidentiary hearing, May 16, 2017.  On July 5, 2017, the Hearing Officer issued an order acknowledging the receipt of Respondent’s responsive brief and Response in Opposition to the Motion to Reconsider and stating that the cases were taken under advisement as of July 5, 2017.  Because the evidentiary record was not closed until the date the cases were taken under advisement, July 5, 2017, it is unclear how the Motion to Reconsider could be considered untimely or improperly filed.

^[2] Exhibit B showed that some of the comparable properties had been on the market as long or longer than the subject properties, but this might or might not have affected their sale prices.  The report for one sale stated that the sale was driven by the seller’s motivation to divest the property because it had been vacant and on the market for five years and needed $150,000-worth of work to “get it back into working condition,” implying that the final sale price likely was below market.