Goralnik Holding Company v. Brooks (SLCO)

State Tax Commission of Missouri

 

GORALNIK HOLDING COMPANY,)

)

Complainant,)

)

v.)Appeal Nos.07-12529 – 07-12539

)

MICHAEL BROOKS, ACTING ASSESSOR,)

ST. LOUIS COUNTY, MISSOURI,)

)

Respondent.)

 

 

ORDER DISMISSING APPEALS

 

FINDINGS OF FACT

1.Jurisdiction.Jurisdiction over these appeals is proper.Complainant timely appealed to the State Tax Commission from the decisions of the St. Louis County Board of Equalization (BOE).Complaints for Review of Assessment, with a copy of the Board of Equalization Decision Letters dated August 21, 2007, attached, were received by the Commission September 20, 2007.[1]

2.Subject Properties.The properties under appeal are identified as follows:[2]

3.Exhibits Received.The following exhibits have been received into the record in these appeals.Exhibits identified by a letter are exhibits submitted on behalf of Complainant. Exhibits identified by a number are exhibits submitted on behalf of Respondent.

 

4.Evidentiary Hearing.An evidentiary hearing was held on June 2, 2010, on the issue of the validity of amendments to memoranda of settlement for the properties under appeal.

5.BOE Appeal Forms.The appeal forms filed with the BOE signed by Jack Goralnik in each appeal state the reason for requesting a revision of the appraised value as:“BOE Appraisals do not accurately reflect the values of the project as determined by accepted appraisal methods using capitalized net income.”No reference is made to any issue contesting the procedural validity of the 2007 assessment.There was no written notice on the part of Mr. Goralnik on behalf of Complainant to the Board that the validity of the 2007 assessment procedure was at issue.[3]

6.Memoranda of Settlement.On June 27, 2007, Jack Goralnik, on behalf of Complainant, executed a Memorandum of Settlement (Settlement) before the St. Louis County BOE in each of the appeals.[4]

Each of the Memoranda of Settlement provided:

“If this stipulation is approved by the Board of Equalization, then in considerationof this stipulation by the assessor, the Taxpayer agrees:

 

1.Not to file any other appeal or suit concerning the 2007 assessmentwith the State Tax Commission or any court or administrative bodyand to pay the taxes billed for 2007 on the above stipulatedclassification and appraised value without protest; and

 

2.That if there are no “new construction and property improvements”during 2008 and the assessment is not increased for 2008, thetaxpayer will not file an appeal or suit concerning the assessmentfor 2008 and will pay the taxes billed for 2008 without protest.”

 

 

Robert Berry, Commercial Appraisal Supervisor, executed the Memoranda of Settlement for the properties in Appeals 07-12529, 07-12533, 07-12534, 07-12535,[5] 07-12537, 07-12538 and 07-12539, on June 27, 2007, as St. Louis County Assessor/Representative.

Sandy Youtzy, Real Property appraisal Manager, executed the Memoranda of Settlement for the properties in Appeals 07-12530, 07-12531, 07-12532 and 07-12536, on June 27, 2007, as St. Louis County Assessor/Representative.

7.BOE Decisions.On June 27, 2007, the Board of Equalization executed its decisions in Appeals 07-12530, 07-12531, 07-12532, 07-12533, 07-12436, 07-12537 and 07-12539, setting the value for each property as set out in the Memorandum of Settlement for each property.[6]On August 3, 2007, the Board of Equalization executed its decisions in Appeals 07-12529, 07-12534, 07-12535 and 07-12538.[7]Each of the decision forms is signed by Hearing Officer, Florita M. Harrison, and dated 6-27-07.In the space for Recommendation and Reason nothing is stated relative to preserving the right of the Complainant to contest the procedural validity of the 2007 assessment.No reference is made in any of the BOE decisions to any amendment of the Memoranda of Settlement preserving the right of the Complainant to contest the procedural validity of the 2007 assessments.

8.Amendments to Memorandums of Settlement.On Monday, July 2, 2009,[8] Toni Gray, employee of Goralnik Holding Company took documents entitled ‘Amendment to Memorandum of Settlement’ to the St. Louis County Board of Equalization and asked that they have an appropriate employee execute them.[9]None of the Amendments have a date, or a date filed stamp by the Board of Equalization. Each copy of the amendments is signed by Jack Goralnik.[10]Each of the copies, except for the amendment to the settlement for the property in Appeal 07-12530, bears a signature of an S. Green as the St. Louis County Assessor/Representative.The amendment in Appeal 07-12530 bears no signature on the line for St. Louis County Assessor/Representative.[11]

9.Authority of Susan Green.Susan Green, on July 2, 2007, was employed as an Office Representative at the Board of Equalization.Her duties were purely clerical in nature, and consisted of answering telephone calls, customer service, and preparing files.Ms. Green never had any actual or apparent authority to enter into settlements or agreements on behalf of the Board of Equalization or the Assessor of St. Louis County.[12]Ms. Green had no authority to execute an amendment to any Memorandum of Settlement.

10.Validity of Amendments.None of the amendments were signed by any employee of the Assessor who had actual or apparent authority to amend the Memoranda of Settlement previously executed by Sandy Youtzy or Robert Berry.[13]None of the amendments were signed by any members of the Board of Equalization who had actual or apparent authority to amend the settlements previously executed by Sandy Youtzy or Robert Berry.[14]The amendments are not valid to change the provision of the Memorandum of Settlement in each appeal that the taxpayer agreed, “Not to file any other appeal or suit concerning the 2007 assessment with the State Tax Commission or any court or administrative body and to pay the taxes billed for 2007 on the above stipulated classification and appraised value without protest.”

DECISION

Complainant asserted that the Memoranda of Settlement encompassed only the issue of valuation and that the issue of the procedural validity of the 2007 assessment remained open and that the amendments presented to a member of the Board staff after the execution of each Memorandum of Settlement was only to reduce to writing the verbal agreement of Mr. Goralnik with Ms. Youtzy and Mr. Berry.The Commission is not so persuaded.

There is nothing in the record to substantiate that Ms. Youtzy and Mr. Berry had any understanding that an issue regarding the procedural validity of the 2007 assessment process was being preserved for further litigation before either the Board of Equalization or the State Tax Commission.There is no evidence that either Ms. Youtzy or Mr. Berry even discussed this matter with Mr. Goralnik.There is no evidence that Hearing Officer Harrison had any knowledge of any such alleged agreement.While Mr. Goralnik may have “understood” that anything he signed off on would not preclude his procedural argument, there is no evidence whatsoever that either Ms. Youtzy, Mr. Berry, or Ms. Harrison had the same understanding.Although Ms. Gray in her affidavit affirms that an employee of the Board took the amendment forms, signed and stamped them, no stamped copies appear in either Complainant’s files or the files of the Board.The purpose of having a document file stamped, is to both establish that it was filed and that the date on which it was filed.That did not occur in this instance.It appears that all that happened is that Ms. Green signed 10 of the 11 amendment forms and returned them to Ms. Gray.For what purpose, it is unclear.

In any event, the Board had already set the value on seven of the properties on June 27, 2007, four days before Ms. Gray tendered the amendments.The values were set on the remaining four properties on Tuesday, July 3, 2007.There is no evidence to establish that the Board had any knowledge of any purported “amendment” to any of the Memorandum of Settlement at the time of its action approving the recommendation of Hearing Officer Harrison based upon the agreement to value by Mr. Goralnik.

Mr. Goralnik executed, on behalf of Complainant, the Memoranda of Settlement, by which the taxpayer stipulated to the values which were then set by the Board based upon each of the Memorandum of Settlement and agreed to not file any appeals with the State Tax Commission.The amendments (Exhibit B) were not valid to alter the Memorandum of Settlement in these appeals and preserve any issue regarding the procedural validity of the 2007 assessment. Accordingly, the appeals to the Commission are rendered moot by Complainant’s stipulation to the value set by the Board for 2007.

ORDER

Appeals are dismissed.Complainant by its Memorandum of Settlement in each appeal agreed to an appraised value for each property and further agreed to not file an appeal concerning the 2007 assessment with the State Tax Commission.

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 August 23, 2010.

 

STATE TAX COMMISSION OF MISSOURI

 

_____________________________________

Bruce E. Davis, Chairman

 

 

_____________________________________

Jeff W. Schaeperkoetter, Commissioner

 

 

 

 

Certificate of Service

 

I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 24^thday of August, 2010, to:Bryan Kaemmerer, 400 South Woods Mill Road, Suite 250, Chesterfield, MO 63017-3481, Attorney for Complainant; Paula Lemerman, Associate County Counselor, County Government Center, 41 South Central Avenue, Clayton, MO 63105, Attorney for Respondent; Michael Brooks, ActingAssessor, County Government Center, 41 South Central Avenue, Clayton, MO 63105; John Friganza, Collector, County Government Center, 41 South Central Avenue, Clayton, MO 63105.

 

 

___________________________

Barbara Heller

Legal Coordinator

 

 

 

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

573-751-2414

573-751-1341 Fax