State Tax Commission of Missouri
v.) Appeal Number 09-10683
MICHAEL BROOKS, ACTING ASSESSOR,)
ST. LOUIS COUNTY,MISSOURI,)
DECISION AND ORDER
Decision of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.True value in money for the subject property for tax years 2009 and 2010 is set at $876,600, residential assessed value of $166,550.Complainant appeared pro se.Respondent appeared by Associate County Counselor, Paula J. Lemerman.
Case heard and decided by Senior Hearing Officer W. B. Tichenor.
Complainant appeals, on the ground of overvaluation, the decision of the St. Louis County Board of Equalization, which sustained the valuation of the subject property.The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2009.The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.
FINDINGS OF FACT
1.Jurisdiction.Jurisdiction over this appeal is proper.Complainant timely appealed to the State Tax Commission from the decision of the St. Louis County Board of Equalization.A hearing was conducted on October 5, 2010, at the St. LouisCountyGovernmentCenter,Clayton,Missouri.
3.Subject Property.The subject property is located at 2818 Christopher Bluffs Lane, St. Louis County, Missouri.The property is identified by locator number 36J530202.The property consists of 1.835 acres improved by a one and a half-story brick, stone and vinyl-sided, single-family structure of excellent quality construction.The house was built in 2006 and appears is in a very good condition.The residence has a total of nine rooms, with four bedrooms, three and a half baths, and contains 4,985 square feet of living area.There is a full unfinished basement and an attached three-car garage. The property sold in December 2006 as new construction for $918,568.
4.Complainant’s Evidence.Complainant testified that his opinion of value for the property was $675,698 based upon the sale of a property at 2834 Christopher Bluffs Lane.Complainant presented the testimony of Mitzi Pasch, President of Mitzi Pasch Realty.Ms. Pasch stated no opinion of value for the property under appeal.Exhibit A was offered into evidence by the taxpayer.Counsel for Respondent objected to the Exhibit.The objection was sustained and the Exhibit was not received into the record.The Exhibit is maintained in the Commission file only as an offer of proof and not as evidence upon which a finding of value could be rendered.
Complainant’s evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2009, to be $675,698 as proposed.
5.Respondent’s Evidence.The properties relied upon by Respondent’s appraiser were comparable to the subject property for the purpose of making a determination of value of the subject property. The three properties were located within less than two miles of the subject.Each sale property sold at a time relevant to the tax date of January 1, 2009.The sale properties were similar to the subject in style, quality of construction, age, condition, room, bedroom and bathroom count, living area, location, site size and other amenities of comparability.
The appraiser made various adjustments to the comparable properties for differences which existed between the subject and each comparable.The adjustments were appropriate to bring the comparables in line with the subject for purposes of the appraisal problem.
Respondent’s evidence met the standard of substantial and persuasive to establish the value of the subject, as of January 1, 2009, to be $890,000.However, Respondent’s appraisal was accepted only to sustain the original assessed value made by the Assessor and sustained by the Board and not for the purpose of raising the assessment above that value.
CONCLUSIONS OF LAW AND DECISION
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.
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.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.In an overvaluation appeal, true value in money for the property being appealed must be determined based upon the evidence on the record.
Presumption In Appeals
There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.This presumption is a rebuttable rather than a conclusive presumption.It places the burden of going forward with some substantial evidence on the taxpayer – Complainant.The presumption of correct assessment is rebutted when the taxpayer presents substantial and persuasive evidence to establish that the Board’s valuation is erroneous and what the fair market value should have been placed on the property.Complainant’s opinion of value, unsupported by a recognized appraisal methodology, did not constitute substantial and persuasive evidence of the true value in money of the subject property.Accordingly, the presumption of correct assessment by the Board was not rebutted.
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.True value in money is defined in terms of value in exchange and not value in use.It is the fair market value of the subject property on the valuation date.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.
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.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. Complainant’s opinion of value was not based upon a recognized methodology for the appraisal of property.There is no case law or accepted appraisal methodology that authorizes taking the per square foot sale price of a single sale as the basis for arriving at fair market value for a property being valued for ad valorem tax purposes.Respondent’s evidence on the other hand presented both the cost and sales comparison approaches to value.The conclusion of value of Ms. Evers was established by well accepted appraisal methodologies.
Complainant Failed to Prove Value of $675,698
In order to prevail, Complainant must present an opinion of market value and substantial and persuasive evidence that the proposed value is indicative of the market value of the subject property on January 1, 2009.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.”
Exclusion of Exhibit A
Complainant sought to introduce into evidence the document to establish the basis for calculating his opinion of value of $143 per square foot of living area.Counsel for Respondent objected on the grounds of lack of foundation, not market transaction, lack of comparability and use of a per square foot sale price not a property valuation methodology.The objection was sustained.
The tendered Exhibit is simple hearsay.There was no verification of the very limited information on the document.Documents such as this and unverified Multi-List information are generally inadmissible in evidentiary hearings before the Commission, unless included as part of an appraisal report by a state approved appraiser.Respondent’s evidence rebutted the use of the proffered sale as appropriate for the present appraisal problem.
Owner’s Opinion of Value
The owner of property is generally held competent to testify to its reasonable market value.The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.In this instance, the owner’s opinion was based upon Mr. Sparrow’s assertion that his property would only have sold on January 1, 2009, for $143 per square foot.This was based on the relocation sale of a property in the subdivision in 2009 at that asserted per square foot price.
Taking a per square foot sale price times the square foot living area of another property is not recognized as a proper methodology for arriving at an indicated fair market value.Therefore, the conclusion of value, reached by this exercise of multiplication, cannot be based upon proper elements or a proper foundation.Consequently, the resulting value can be given no probative weight on the issue of true value in money.One sale does not make a market, nor does one per square foot price establish the per square foot market value of a property being appraised.The subject property originally sold in December 2006 as new construction at a price of $918,568, or $184.27 per square foot of living area.The sales data in the record establishes that homes comparable to the subject were selling in a per square foot of living area range of $183.48, $192.11, and $200.39.Such evidence rebuts Complainant’s assertion that a per square foot value of $143 on January 1, 2009, would be appropriate to calculate value for the taxpayer’s property.
Testimony of Ms. Pasch
Ms. Pasch was not qualified as an expert in the appraisal of real property for ad valorem assessment purposes before the Commission.She gave no opinion as to what the fair market value of the subject property would have been on January 1, 2009.The witness did verify that Respondent’s appraiser had used the only sales available in the subject neighborhood, other than the property at 2834 Christopher Bluffs Lane.Ms. Pasch’s testimony simply related to her opinion that real estate values were down from 25-30% across the country, and that the decrease in value for the Complainant’s home was probably closer to 20%.This conclusion was not based upon any market study, but only on the overall market decline of which she had general information.
Opinions Expressed Unsupported
During the current cycle of residential property appeals before the Commission, the Hearing Officer has heard from virtually every taxpayer appealing the value on their property about how the real estate market across the nation has gone down.Taxpayers often come with a multitude of hearsay documents from newspaper articles to information from the Internet to attempt to establish that real estate values have declined.Then from such information it is concluded that the appraised value placed on the property under appeal in 2007 has to be reduced by some arbitrary percentage generally in the 20 – 30% range.
Such information and the opinions reached relying on this general information are not probative on the value of any single property.Accordingly, it lacks relevance.Such general information becomes no more relevant simply because a taxpayer presents someone other than themselves to give the hearsay testimony.Yes, the Hearing Officer is aware of the various statistics bandied about in the media and over the Internet.Yes, the Hearing Officer understands that painted with a very broad brush real estate values have declined in the past 2 or 3 years.However, broad generalizations do not prove value of any single property under appeal before the Commission.The real estate market decline argument made by Ms. Pasch (and various taxpayers in hearings before the Commission) is somewhat like asserting that since 25 – 30% of all Irish are red-headed, the red-headed man that walked into a pub in London was Irish.Such logic is faulty.It is based upon generalized speculation.There is a 7 to 26% probability that the man is a Brit from Oxfordshire, Cornwall, Devon, Sussex, Kent, Lincolnshire, Wales or Orkney and not Irish.
Ms. Pasch presented no market studies of the subject neighborhood, or similar neighborhoods in St. Louis County to derive any specific change in market values that could be applied to the subject property.She provided no data derived from her study of homes in other areas of St. Louis County which might be similar to the subject and would have provided relevant market data applicable to the subject property.However, assuming that such data had been provided it would have been in error to simply apply some derived percentage to the prior assessor appraised value, since there is no presumption that value was correct.To properly use the “real estate values have declined” argument, it is not only necessary to have relevant data specific to the area in which the property being valued exists, but it is necessary to go back and prove the market value of the property on January 1, 2007, not just prove what the assessor appraised the property for on that date.
Accordingly, Ms. Pasch’s hearsay opinion is not probative on any material issue in the present appeal.
Complainant failed to meet his burden of proof and present substantial and persuasive evidence to establish what his property would have sold for on January 1, 2009.
Evidence of Increase in Value
In any case in St. Louis County where the assessor presents evidence which indicates a valuation higher than the value finally determined by the assessor or the value determined by the board of equalization, whichever is higher, for that assessment period, such evidence will only be received for the purpose of sustaining the assessor’s or board’s valuation, and not for increasing the valuation of the property under appeal.The evidence presented by the Respondent was substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the fair market value of the property under appeal, as of January 1, 2009, to be $890,000.However, under the Commission rule just cited and Supreme Court decision the assessed value cannot be increased above $166,550 in this particular appeal.
Respondent’s Evidence Sustains Value of $876,600
The Respondent has imposed upon him by the provisions of Section 137.115.1, RSMo, the burden of proof to present clear, convincing and cogent evidence to sustain a valuation on residential property which is made by a computer, computer-assisted method or a computer program.There is a presumption in this appeal that the original valuation, which was sustained by the Board of Equalization, was made by a computer, computer-assisted method or a computer program.There was no evidence to rebut the presumption, therefore, in order to sustain the valuation of the subject property at $876,600, appraised value, Respondent’s evidence must come within the guidelines established by the legislature and must clearly and convincingly persuade the Hearing Officer as to the value sought to be sustained.
The statutory guidelines for evidence to meet the standard of clear, convincing and cogent include the following:
(1)The findings of the assessor based on an appraisal of the property by generally accepted appraisal techniques; and
(2) The purchase prices from sales of at least three comparable properties and the address or location thereof.As used in this paragraph, the word comparable means that:
(a)Such sale was closed at a date relevant to the property valuation; and
(b) Such properties are not more than one mile from the site of the disputed property, except where no similar properties exist within one mile of the disputed property, the nearest comparable property shall be used.Such property shall be within five hundred square feet in size of the disputed property, and resemble the disputed property in age, floor plan, number of rooms, and other relevant characteristics.
Clear, cogent and convincing evidence is that evidence which clearly convinces the trier of fact of the affirmative proposition to be proved.It does not mean that there may not be contrary evidence.The quality of proof, to be clear and convincing must be more than a mere preponderance but does not require beyond a reasonable doubt.“For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder’s mind is left with an abiding conviction that the evidence is true.”
Value Based on Generally Accepted Appraisal Techniques
Respondent presented a conclusion of value based on an appraisal of the property by generally accepted appraisal techniques.Exhibit 1 appraised the property under appeal by means of two well recognized and accepted appraisal methodologies, i.e. the cost and sales comparison approaches.The cost approach concluded a value of 890,700.The value indicated by the sales comparison was $890,000.
The appraiser presented the purchase prices and addresses from sales of three comparable properties.
Sales at Relevant Time to January 1, 2009
The three sales presented each sold at a time relevant to the valuation date of January 1, 2009.The two sales that occurred in May and November of 2007 were adjusted for the time of sale.Ms. Evers calculates a percentage decline in the subject neighborhood based on the data available to her.The underlying data was not presented as an addendum to the appraisal.This is not a factor that renders the conclusion of value as unconvincing.The Hearing Officer is persuaded that the report would have been strengthened by the inclusion of the underlying data.
Appraisers must work with such data as exists on a matter such as time adjustment.It may be limited and may be subject to various criticisms by the opposing party.However the fact remains that what the data is, it is.When an appraiser is relying on it, a good approach is to provide it in a concise summary form, so that the Hearing Officer may at least have the benefit of the basis for the appraiser’s conclusions and findings drawn from such data.The only credible evidence in the record on a time of sale adjustment was Exhibit 1 and the testimony of Ms. Evers.
Sales Proximate to Subject
One of the sales was less than a mile from the subject therefore, it was appropriate for use in the appraisal problem.The two other comparables were approximately a mile and three-quarters from the subject.The standard that is desired is sales within a mile of the property being appraised.However, when as in this instance the only time relevant sales include two properties located more than a mile from the subject, the appraiser may utilize those sales.Especially when there are no other comparable sales from which the appraiser can perform the appraisal.
Within 500 Square Feet of Subject
For a sale to be comparable it must be within 500 square feet of the disputed property.This is the generally accepted standard in the appraisal field.The statute is understood by the Hearing Officer to address the size of the gross above grade living area and is always applied by appraisers appearing before the Commission in this manner.In this instance comparable one is only 276 square feet smaller than the subject.Comparable 2 is 652 square feet smaller than the subject, or about 30% beyond the desired 500 square foot standard.Comparable 3 is 633 square feet larger, or about 27% over the 500 square foot variance.However, as was establish by Complainant’s witness, as well as Ms. Evers, there were no other time relevant sales that were closer in location and closer in living area to the subject than the three sales analyzed in Exhibit 1.
Resemble the Disputed Property
The three comparables resemble the disputed property in the various factors of comparability and other amenities.For those differing factors, the appraiser made appropriate adjustments to bring the comparables in line with the subject.Sale properties are not required to be exact copies of the property being appraised.In point of fact they rarely are.To be utilized in a sales comparison analysis, the sale properties need to resemble the property being appraised.The adjustment process addresses the variances of comparability.
Summary and Conclusion
The appraiser complied with the statutory guidelines for evidence to meet the standard of clear, convincing and cogent.That evidence convinced the Hearing Officer of the truth of the proposition relative to the true value in money of the property under appeal, as of January 1, 2009.Accordingly, the value of $876,600 originally determined by the Assessor’s mass valuation and sustained by the Board, must be affirmed.
Sale of 2834 Christopher Bluffs Lane
Respondent’s appraiser took note of the relocation sale of the property at 2834 Christopher Bluffs Lane.This property had sold in 2006 for $1,159,551.The sale at $779,000 in January 2009 by a Sirva Relocation Company was not deemed by Ms. Evers to come within the Standard for Valuation to be used as a comparable in her sales comparison approach.It was the conclusion of the appraiser that “Relocation companies are not in the business of selling and holding properties, and may end of taking a loss on the house to expedite the sale, rather than waiting for a true market value offer.”The Hearing Officer has no evidentiary basis to refute or contradict the opinion expressed by Ms. Evers.Accordingly, there can be no defect in the appraisal report for the determination by the appraiser to not utilize this property.
The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization for St. Louis County for the subject tax day is AFFIRMED.
The assessed value for the subject property for tax years 2009 and 2010 is set at $166,550.
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.
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 November 4, 2010.
STATE TAX COMMISSION OFMISSOURI
W. B. Tichenor
Senior Hearing Officer
Certificate of Service
I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 4th day of November, 2010, to:Gerald Sparrow, 11330 Olive Boulevard, Suite 230, St. Louis, MO 63141, Complainant; Paula Lemerman, Associate County Counselor, Attorney for Respondent, County Government Center, 41 South Central Avenue, Clayton, MO 63105; Michael Brooks, Acting Assessor, County Government Center, 41 South Central Avenue, Clayton, MO 63105; John Friganza, Collector, County Government Center, 41 South Central Avenue, Clayton, MO 63105.
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
 The document consisted of two pages of a Zestimate on property at 2834 Christopher Bluffs Land, from www.zillow.com
 The comparable sales were the most similar sales found in the subject’s neighborhood and were the most reliable indicators of value. Exhibit 1, Page 3 of 5.There were no other sales, other than a relocation sale.Testimony of Ms. Pasch.
 Section 137.115.5, RSMo; Agricultural property is assessed at 12% of its true value in money; Residential property is assessed at 19% of its true value in money; Commercial property is assessed at 32% of its true value in money.Personal Property, unless in a special assessment category, is assessed at 33.33% of its true value in money.
 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)
 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).
 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.
 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).
 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).
 Cohen v. Bushmeyer, 251 S.W.3d 345, (Mo. App. E.D., March 25, 2008); Carmel Energy, Inc. v. Fritter, 827 S.W.2d 780, 783 (Mo. App. W.D. 1992); State, ex rel. Missouri Hwy & Transp. Com’n v. Pracht, 801 S.W.2d 90, 94 (Mo. App. E.D. 1990); Shelby County R-4 School District v. Hermann, 392 S.W.2d 609, 613 (Sup. 1965).
“Section 138.060 prohibits an assessor from advocating for or presenting evidence advocating for a higher ‘valuation’ than the ‘value’ finally determined by the assessor. … . Because the legislature uses the singular terms ‘valuation’ and ‘value’ in the statute, however, it clearly was not referring to both true market value and assessed value.While the assessor establishes both true market value and assessed value, which are necessary components of a taxpayer’s assessment, as noted previously, the assessed value is the figure that is multiplied against the actual tax rate to determine the amount of tax a property owner is required to pay.The assessed value is the ‘value that is finally determined’ by the assessor for the assessment period and is the value that limits the assessor’s advocacy and evidence.Section 138.060.By restricting the assessor from advocating for a higher assessed valuation than that finally determined by the assessor for the relevant assessment period, the legislature prevents an assessor from putting a taxpayer at risk of being penalized with a higher assessment for challenging an assessor’s prior determination of the value of the taxpayer’s property.”State ex rel. Ashby Road Partners, LLC et al v. STC and Muehlheausler, 297 S.W.3d 80, 87-88 (Mo 8/4/09)