Golden Triangle Energy LLC v. Markt (Holt)

State Tax Commission of Missouri

 

GOLDEN TRIANGLE ENERGY LLC, )

)

Complainant, )

)

v. ) Appeal Number 09-60500

)

CARLA MARKT, ASSESSOR, )

HOLT COUNTY, MISSOURI, )

)

Respondent. )

 

 

DECISION AND ORDER

HOLDING

Decision of the Holt County Board of Equalization sustaining the assessment made by the Assessor is SET ASIDE. True value in money for the subject property for tax years 2009 and 2010 is $10,600,000, commercial assessed value of $3,392,000.

Complainant appeared by counsel, Nick Robb and Stephen J, Briggs.

Respondent appeared by counsel, Robert R. Shepherd.

Case heard and decided by Senior Hearing Officer Luann Johnson.

ISSUE

The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2009, and January 1, 2010.

SUMMARY

Complainant appeals, on the ground of overvaluation, the decision of the Holt County Board of Equalization, which sustained the Assessor’s original valuation of $9,186,521 (assessed value $2,939,687) for the subject property. Complainant appealed asserting a value of $7,600,000 (assessed value $2,432,000). At hearing, Respondent’s appraiser asserted a value of $10,600,000 (assessed value $3,392,000). A hearing was conducted on July 29, 2010, at the Holt County Courthouse, Oregon, Missouri.

The Hearing Officer, having considered all of the competent evidence upon the whole record, determines that an income approach is the most reasonable way to value the subject property and enters the following Decision and Order setting value at $10,600,000.

EXHIBITS

The following exhibits were accepted into evidence on behalf of Complainant:

 

The following exhibits were accepted on behalf of Respondent:

 

FINDINGS OF FACT

1. Jurisdiction over this appeal is proper. Complainant timely appealed to the State Tax Commission from the decision of the Holt County Board of Equalization.

2. The subject property is a one acre tract improved with a modular heavy steel structure, built in 2008 for $17,000,000, used for distilling high grade alcohol. The structure consists of eight modules. Modules 1 through 4 are each 13 feet by 69 feet with a height of 14 feet. They are stacked horizontally to create a four-level structure. Modules 5 and 6 are each 13 feet by 55 feet in length and 14 feet wide. These modules have been place vertically on the east side of modules 1 through 4. Module 8 is placed vertically on the west side of modules 1 through 4. It is 13 feet by 67 feet. Module 7 is similar to module 8 except it is only 9 feet wide and is a steel stairway that provides access to the different levels. The structure contains a total of 6,045 square feet on the main level and 12,300 square feet on the upper levels. The exterior and roof are open. The structure sits on a poured concrete floor. Steel grates make up the floors for the upper levels. In addition the structure includes three smoke stacks. These smoke stacks are considered part of the real estate. The structure has plumbing and electrical service but no heat. This property is identified as parcel number 07-6-13-00-00-03.001. Exhibit B, pg. 59.

The subject property includes a specialized industrial alcohol distillation system. This structure includes various tanks, heat transfer equipment and four tall rectifier towers. Other improvements include a 35,000 gallon storage tank. Exhibit 2, pg. 16.

3. The subject improvements were built as an add on to a previously existing ethanol plant. The alcohol plant relies upon the ethanol plant for various different tanks, buildings, rail lines and utility services as well as its supply of ethanol. It is not a stand-alone plant. Exhibit B, pg. 60. However, the ethanol plant is currently tax exempt; is not under appeal; and is not being valued for the purposes of this appeal. Both appraisers calculated the value the alcohol plant received from the ethanol plant facilities as a form of “rent” to be deducted under the income approach. Exhibit B, pg. 60; Exhibit 2, pg. 36.

4. The ethanol plant was constructed in 2001 and is capable of producing 19,000,000 gallons of ethanol per year. The alcohol plant was constructed in 2008 and is capable of producing 14,400,000 gallons of alcohol per year. The purpose of the alcohol plant is to add flexibility and the capacity to produce diverse products depending upon market demand. The alcohol plant obtains its ethanol from the adjacent ethanol plant. The alcohol plant must produce 4,600,000 gallons of ethanol, as well as its 14,400,000 gallons of alcohol, to reach maximum production. Exhibit B, pg. 60, 61, 62. Recently, the industrial alcohol market has been more stable than the highly volatile fuel ethanol industry. Exhibit 2, pg. 12.

5. Ethanol (fuel grade alcohol) is used to produce industrial grade alcohol. Exhibit 2, pg. 12. The high grade alcohol market is a national market with a very limited number of plants that are capable of producing it. Exhibit B, pg. 28. The subject property is capable of producing about 4% of the total demand for high grade alcohol. Exhibit B, pg. 29. Prices for high grade alcohol are between $0.40 and $0.75 a gallon higher than ethanol. Exhibit B, pg. 30.

Industrial alcohol (high grade alcohol) demand is driven by the needs of commercial users in various industries. Uses for industrial grade alcohol can include solvents and cleaning purposes and is considered an important product for the manufacture of pharmaceuticals, food, cosmetics and many other products. Additionally, the alcohol manufactured at the subject can be used for beverage purposes and as an ingredient in consumer products such as antifreeze. Exhibit 2, pg. 12.

Two by-products of alcohol distillation are wet and dried distiller’s grain. These products are used to supplement livestock feed. The market for these products is large in the Midwest and other areas with livestock ranching. The market for these products is considered stable and it is believed that the subject property can achieve market rates for these by-products of ethanol and industrial alcohol production. Exhibit 2, pg. 12.

Another by-product of ethanol production is corn syrup. The corn syrup produced at ethanol facilities is primarily used as a livestock feed supplement. Typically, corn syrup is sprayed on livestock feed to make it more palatable. The market for this product is large and relatively stable. Exhibit 2, pg. 13.

6. The subject improvements cost $17,000,000 to build in 2008. Exhibit B, pg. 71. The improvements were first listed on county assessment roles for January 1, 2009. The value determined by the assessor and approved by the board of equalization was $9,186,521 (assessed value $2,939,687). Complainant appealed asserting a value of $7,600,000 (assessed value $2,432,000). At hearing, Respondent’s appraiser asserted a value of $10,600,000 (assessed value $3,392,000). No evidence was presented suggesting that additional new construction or property improvements were made to the property between tax day 2009 and tax day 2010.

Sales Approach

7. There are no market sales of alcohol plants. Neither appraiser attempted to prepare a sales comparison approach to value the subject property.

Cost Approach

8. Both appraisers prepared a cost approach to value. Both appraisers used Marshall and Swift to calculate replacement costs. Complainant’s appraiser relied upon his cost approach to value. Respondent’s appraiser did not rely upon said cost approach.

9. Replacement Cost New. Complainant’s appraiser estimated replacement costs at $15,898,869 while Respondent’s appraiser estimated replacement costs at $18,957,235. Exhibit B, pg. 86; Exhibit 2, pg. 29.

10. Physical Depreciation. Complainant’s appraiser estimated physical depreciation (one year) at 7.7% while Respondent’s appraiser estimated physical depreciation (one year) at 6.76%.

11. Functional Obsolescence.

Respondent’s appraiser did not estimate any functional obsolescence.

Complainant’s appraiser assigned a functional obsolescence of 20%. Functional obsolescence is “a flaw in the structure, materials, or design that diminishes the function, utility and value of the improvement.”[1]

Complainant first argues that functional obsolescence exists because the owners may decide to use the plant to make ethanol rather than alcohol. Exhibit B, pg. 87; Tr. 16. This is not a functional problem inherent in the improvements and is not a proper reason for applying functional obsolescence. Anyone could choose to underutilize their property without it being a functional obsolescence problem.

Complainant’s appraiser also calculates that the subject property suffers from a loss of income equivalent to about $0.03 per gallon of alcohol which the plant is capable of producing. Extremely simplified, Complainant’s appraiser calculates what he thinks the plant should make to justify its construction costs; calculates what the plant actual produces; and the difference must be “lost income” which is capitalized over 12 years. Plugging this “lost income” into his formula,[2] along with his belief that a replacement cost of a new facility would be $14,000,000, he determines that the functional obsolescence is $3,491,010 or 20.4%, say 20%. Exhibit B, pg. 87.

The formula as set out by the Appraisal Institute, requires that the appraiser first calculate a cost to cure; which Complainant’s appraiser has failed to do. Only if the functional obsolescence is incurable, can the appraiser move to a calculation of loss in value.

To compute the loss in value for incurable functional obsolescence, the appraiser is required to capitalize the loss in income associated with the obsolescence.[3] However, as noted by the appraiser, there are no market sales to prepare a paired sales analysis to determine any loss in value or income due to incurable functional obsolescence.

Failing to find tools approved by the Appraisal Institute, Complainant’s appraiser relies upon a calculation of loss in value based upon what he believes the property must produce in order to justify its costs. Complainant’s appraiser has not presented his calculations of gross income necessary to support the initial investment, so this hearing officer cannot replicate the calculation of income loss. Further, it is not clear that this methodology even addresses obsolescence. It appears that Complainant’s appraiser has made a presumption that the high cost of construction has a functional obsolescence component, when the facts do not necessarily establish the existence of such a component.

12. External Obsolescence.

Respondent’s appraiser did not estimate any economic obsolescence.

Complainant’s appraiser estimated economic obsolescence of 40%. In support, Complainant’s appraiser argues “that many thousands of home buyers that purchased a new home in Florida, Nevada, parts of California and some other locations have found the value of the home did drop over 50% in a few months during the same time period 2008 into 2009”. Exhibit B, pg. 2. Exactly how a housing bubble in other states corresponds to a loss in value in an alcohol plant in Missouri is not explained.

External obsolescence is a loss in value caused by factors outside the property.[4] As Complainant’s appraiser notes, “the primary methods of measuring external obsolescence are paired data and the capitalization of rental loss (lost income). The market does not include sales of alcohol plants and for this reason paired sales in not possible.” Exhibit B, pg. 88.

However, it appears that, as with the above functional obsolescence, the loss of income is supposed to be determined from market derived comparables[5] rather than by the methodology employed by Complainant’s appraiser.

The hearing officer cannot find that Complainant’s appraiser has correctly calculated external obsolescence associated with the subject improvements.

13. Value under Cost Approach. Complainant’s appraiser estimated value under the cost approach at $7,700,000. Respondent’s appraiser estimated value under the cost approach at $17,000,000.

The general rule is obsolescence which cannot be measured from the market should not be deducted. However, the improvements valued here are dependent, in some degree, upon improvements which are not being valued. This fact suggests that some sort of functional obsolescence may exist but the ability to measure same is limited by the lack of market data.

Complainant’s cost approach is not persuasive because it employed an unsanctioned methodology for determining functional and external obsolescence.

Respondent’s cost approach, although correctly prepared, is not persuasive because it could not account for functional and external obsolescence at all.

Income Approach

14. Operating Income. On the tax day, the subject improvements had not been operational long enough to have an income and expense history. However, because the production of alcohol is very similar to the production of ethanol, requiring the same raw products and producing similar by-products, the appraisers were able to utilize historical income and expense statements from Complainant’s ethanol operations to calculate various production and administrative costs and estimate revenues. In addition, both appraisers assumed that the subject improvements would “rent” the use of the exempt improvements and would purchase the required ethanol at market rates. Because the difference in value lies in the discount rate rather than the income stream, no further discussion of this point is necessary.

15. Discount Rate.

The only significant difference between Complainant’s income approach and Respondent’s income approach was the amount selected for the discount rate. Tr. 58.

Mortgage Equity. Both appraisers determined that a hypothetical purchaser would be able to obtain a 50% mortgage. Under a mortgage/equity income approach, Complainant’s appraiser estimated that the interest rate on said mortgage would be 11%. Exhibit B, page 98. Respondent’s appraiser estimated that the interest rate on said mortgage would be 8.25%. Exhibit 2, page 39. Complainant’s appraiser suggested that said purchaser would expect a 22% return on equity. Exhibit B, page 98. Respondent’s appraiser suggested that said purchaser would expect a 12% to 13% return on equity. Exhibit 2, page 39.

Complainant’s appraiser based his determination of the discount rate based upon “high risk properties in the current market generally have capitalization rates in the range of 11% to 14%” ; the subject property is even higher risk; therefore the 22% rate is appropriate. Complainant’s appraiser referred to no market studies to support his conclusions.[6]

Respondent based his determination of discount rates on the Korpacz Real Estate Investor Survey which indicated that high risk properties, such as limited service lodging, had discount rates from 6.5% to 18%, with an average around 9%. Respondent indicated that subject property had similar going concern issues but a higher risk which would indicate a discount rate of 12% to 13%.

Effective Tax Rate. Respondent used the actual 2.1% effective tax rate while Complainant used a 3% effective tax rate. The correct effective tax rate would be the actual rate of 2.1%.

Discounted Cash Flow. Under a discounted cash flow approach, Complainant used a discount rate of 25% while Respondent used a discount rate of 14.5%. Respondent also only used 75% of revenue capacity to further account for risk. Tr. 59.

Value under Income Approach. Respondent’s discount rate, under either Mortgage/Equity or the Discounted Cash Flow, is more reliable because it is more closely based upon market data and is conservative enough to account for any risks associated with this property.

Respondent’s appraiser determined a value of $10,600,000 while Complainant’s appraiser estimated a value of $7,750,000. Exhibit B, page 102; Exhibit 2, pg. 39. The correct value of the subject property under the income approach is $10,600,000.

Owners’ Opinion

16. Complainant produced written direct testimony of Gene Millard and Roger Hill, part owners in the subject property. Mr. Millard asserted that assessed value should be no more than 10 to 15 cents per gallon of capacity ($1,400,000 to $2,100,000). Mr. Hill asserted that value should be no more than $6,720,000 (assessed value $2,000,000). Respondent produced answers to interrogatories wherein Mr. Hill indicated that the total cost to construct the facility was $16,738,452.39. Mr. Hill indicated that this was about $3,500,000 more than it should have been “due to irrational exuberance in the overall ethanol industry”.

Neither Mr. Millard or Mr. Hill based their opinions of value on industry recognized appraisal methods but, rather, based their opinions upon their “experience in the industry.” It is unclear how much credibility should be afforded individuals who would spend nearly $17,000,000 to build a facility which would then immediately be worth only $6,700,000. Further, to accept these opinions of value would be to believe that they were sufficient to rebut the presumption of good management. We decline to find that Mr. Millard or Mr. Hill are inept business managers.

Complainant Failed to Prove Value

17. Complainant has failed to produce substantial and persuasive evidence to rebut the presumption of correct assessment by the Board of Equalization.

Respondent Proves Value

18. When Respondent proposes a value different from the value determined by the Board of Equalization, she must also support that value with substantial and persuasive evidence. Respondent’s appraiser utilized accepted appraisal methodologies but admitted that, because the plant was brand new, it was difficult to measure depreciation and potential income and expenses. Tr. 55-56. Respondent’s appraiser attempted to take a conservative approach. Tr. 58 – 59. The hearing officer cannot find any flaws in his methodology and finds that it rises to the level of substantial and persuasive evidence sufficient to rebut the presumption in favor of the Board of Equalization. Respondent’s appraisal supports a value determination of $10,600,000.

CONCLUSIONS OF LAW AND DECISION

Jurisdiction

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.[7]

Official and Judicial Notice

Agencies shall take official notice of all matters of which the courts take judicial notice.[8]

Courts will take judicial notice of their own records in the same cases.[9] In addition, courts may take judicial notice of records in earlier cases when justice requires[10] or when it is necessary for a full understanding of the instant appeal.[11] Courts may take judicial notice of their own records in prior proceedings involving the same parties and basically the same facts.[12]

Presumptions In Appeals

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[13]

The presumption in favor of the Board is not evidence. A presumption simply accepts something as true without any substantial proof to the contrary. In an evidentiary hearing before the Commission, the valuation determined by the Board, even if simply to sustain the value made by the Assessor, is accepted as true only until and so long as there is no substantial evidence to the contrary.

The presumption of correct assessment is rebutted when the taxpayer, or respondent when advocating a value different than that determined by the Board, 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.[14]

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.[15] It is the fair market value of the subject property on the valuation date.[16] 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.[17]

 

Duty to Investigate

In order to investigate appeals filed with the Commission, the Hearing Officer has the duty to 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. The Hearing Officer’s decision regarding the assessment or valuation of the property may be based solely upon its inquiry and any evidence presented by the parties, or based solely upon evidence presented by the parties.[18]

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.[19]

Trier of Fact

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.[20]

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.[21]

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.[22]

Opinion Testimony by Experts

An expert’s opinion must be founded upon substantial information, not mere conjecture or speculation, and there must be a rational basis for the opinion.[23] The state tax commission cannot ignore a lack of support in the evidence for adjustments made by the expert witnesses in the application of a particular valuation approach.[24]

The testimony of an expert is to be considered like any other testimony, is to be tried by the same test, and receives just so much weight and credit as the trier of fact may deem it entitled to when viewed in connection with all other circumstances. The hearing officer, as the trier of fact, has the authority to weigh the evidence and 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 may accept it in part or reject it in part.[25]

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.[26]

Respondent’s Burden of Proof

Respondent, when advocating a value different from that determined by the original valuation or a valuation made by the Board of Equalization, must meet the same burden of proof to present substantial and persuasive evidence of the value advocated as required of the Complainant under the principles established by case law.[27]

Complainant’s Burden of Proof

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.[28] 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.”[29]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[30] 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.[31]

Owner’s Opinion of Value

The owner of property is generally held competent to testify to its reasonable market value.[32] The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[33] “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.”[34]

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.”[35]

DECISION

It is difficult to look at a property which cost $17,000,000 to build in 2008 and value it at only $10,600,000 as of January 1, 2009. Given the lack of operating history and market data, it could be said that even Respondent’s proposed value leaves this hearing officer in the nebulous twilight of speculation, conjecture and surmise. However because Respondent, and the Holt County Board of Equalization, have given Complainant the benefit of the doubt and have conservatively valued the subject improvements, I follow suit. There is some evidence that the replacement cost new should have been closer to $14,000,000, which would make the $10,600,000 a little more palatable.

This opinion of value may change when more market data is available.

ORDER

The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization for Holt County for the subject tax day is SET ASIDE.

The clerk is hereby ordered to place a new assessed value of $3,392,000 (market value $10,600,000) on the subject property for tax years 2009 and 2010.

A party may file with the Commission an application for review of this decision within thirty (30) days of the mailing date shown in the Certificate of Service. The application shall contain specific 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 appeal is based will result in summary denial. [36]

The Collector of Holt County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending a 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 21, 2010.

STATE TAX COMMISSION OF MISSOURI

 

 

_____________________________________

Luann Johnson

Senior Hearing Officer

 

 

 

Certificate of Service

 

I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 21^st day of September, 2010, to: Nick Robb and Stephen Briggs, 400 Jules, Suite 320, St. Joseph, MO 64501, Attorneys for Complainant; Robert Shepherd, Prosecuting Attorney, P.O. Box 467, Oregon, MO 64473, Attorney for Respondent; Carla Markt, Assessor, P.O. Box 366, Oregon, MO 64473; Kathy Kunkel, Clerk, P.O. Box 437, Oregon, MO 64473; Billy Paul Sharp, Collector, Holt County Courthouse, Oregon, MO 64473.

 

 

___________________________

Barbara Heller

Legal Coordinator