State Tax Commission of Missouri
|GRI BROOKSIDE SHOPS, LLC
|16-30241 through 16-30242
|ROBERT MURPHY, ASSESSOR,
|JACKSON COUNTY, MISSOURI,
DECISION AND ORDER
The assessed valuations of the subject properties are AFFIRMED. Appeals are dismissed for lack of jurisdiction as the appeals were filed out-of-time.
GRI Brookside Shops, LLC (Complainant) was represented by counsel Wayne Tenenbaum.
Respondent, Robert Murphy (Respondent), Director of Assessment, Jackson County, was represented by counsel Tamika Logan.
Case heard on the record and decided by Senior Hearing Officer John Treu.
Complainant appealed to the State Tax Commission (STC) on December 28, 2016, on the grounds of overvaluation and failure to provide an impact notice pursuant to Sections 137.180 and 137.355 RSMo informing the property owner of the increased valuation in true market values (TMV) of the subject properties for tax year 2016. Complainant seeks return of the TMV of the subject properties to their 2015 TMV.
Complainant filed the following exhibits in support of its Complaint for Review of Assessment:
|Affidavit of Gregory Zike
|Written Direct Testimony of Gregory Zike
Gregory Zike (Zike) is the Vice-President of Washington Realty, Inc., and his duties include custodian of records of Complainant. Zike testified that he conducted a thorough investigation of the records of both Washington Realty, Inc., and of Complainant. Zike was unable to find any evidence of notices of increased assessment from Jackson County regarding the subject properties. The exhibits conclude that “it is [Mr. Zike’s] belief that no such notices were received by either First Washington Realty, Inc. or GRI Brookside Shops, LLC.”
No evidence regarding the TMV of the properties was submitted by Complainant.
Respondent filed the following exhibits:
|Affidavit Robert Murphy (16-30241)
|Affidavit Robert Murphy (16-30242)
Respondent’s affidavits state that “[o]fficial Jackson County Assessment Department records show that the valuation notice[s] for Jackson County, Missouri, Real Property Parcel Numbers [regarding the subject properties] [were] forwarded, via first-class pre-sort, postage pre-paid U.S. Mail, from the duly contracted mailing vendor for the Assessment Department to [Complainant, via First Washington Realty, Inc.], as directed by the taxpayer on June 3, 2016.” The exhibits also state that “[o]fficial Jackson County Assessment Department records show no return of [these] item[s] of mail.”
No evidence regarding the TMV of the properties was submitted by Respondent.
FINDINGS OF FACT
- Jurisdiction. Jurisdiction over these appeals is not proper. Complainant failed to properly exhaust its administrative remedies after receiving notice under Section 137.355 RSMo. 2. Identification of Subject Property. The subject properties are described by the following parcel numbers and addresses.
|104 W. 63rd St., Jackson County, Missouri
|6225 Brookside Blvd., Jackson County, Missouri
- Notices. Jackson County mailed notices of increased assessment in compliance with Sections 137.180 and 137.355 RSMo.
- True Market Values. Evidence presented was not substantial and persuasive as to valuation or to order the assessment properties at the assessment set for 2015.
CONCLUSIONS OF LAW AND DECISION
The Commission has jurisdiction to hear appeals and correct any assessments which are shown to be unlawful, unfair, arbitrary or capricious to the extent that a Complainant was given notice pursuant to Section 137.180 RSMo and to the extend a Complainant exhausted its administrative remedies. If such occurred, 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. Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo.
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 BOE, correcting any assessment which is unlawful, unfair, improper, arbitrary or capricious. Section 138.431.5 RSMo; 12 CSR 30-3.080 (2). Both parties agreed to submit this appeal upon the record. The filing of exhibits and WDT establishes the basis upon which opportunity for an evidentiary hearing can be held. The Complainant has the burden to present substantial and persuasive evidence. The Hearing Officer considered all the exhibits and WDT and then proceeded to ascertain if said exhibits and WDT met the standard of substantial and persuasive evidence to establish the market value of the property.
Sections 137.180.2 and 137.355 RSMo
Section 137.180.2 reads:
Effective January 1, 2009, for all counties with a charter form of government, other than any county adopting a charter form of government after January 1, 2008, whenever any assessor shall increase the valuation of any real property, he or she shall forthwith notify the record owner on or before June fifteenth of such increase and, in a year of general reassessment, the county shall notify the record owner of the projected tax liability likely to result from such an increase, either in person, or by mail directed to the last known address; every such increase in assessed valuation made by the assessor shall be subject to review by the county board of equalization whereat the landowner shall be entitled to be heard, and the notice to the landowner shall so state. Notice of the projected tax liability from the county shall accompany the notice of increased valuation from the assessor.
Missouri subscribes to the hoary maxim omnia presumuntur rite esse acta. As translated in Woolridge et al. v. La Crosse Lumber Co., 291 Mo. 239, 236 S.W. 294, 297 (1921), “it is to be presumed that everything done by an officer, in connection with the performance of an official act in the line of his duty, is legally done, and, a fortiori, absent proof to the contrary, all things are presumed to have been rightfully and lawfully done.” This presumption is not ensconced in a vacuum, and when resorted to its ramifications are manifold. It is a rebuttable rather than a conclusive presumption; it puts the burden of going forward with some substantial evidence on the party presumed against and when some substantial evidence is produced by the party presumed against,. State ex rel. Christian v. Lawry, 405 S.W.2d 729, 730 (Mo.App.1966),
Complainant has the burden to prove that notices were not mailed.
Complainant’s evidence was not substantial and persuasive to rebut this presumption. Mr. Zike’s belief that notices were not sent and received and his inability to find the notices in the records he examined was not persuasive to the Hearing Officer. Such are uncategorical in nature and leave room for other possibilities, including, but not limited to, the notices simply being inadvertently lost or discarded by an employee.
Exhaustion of Administrative Remedy
Complainant did not file an appeal with the BOE on or before July 11, 2016, as required by Sections 137.385 RSMo. Complainant’s first attempt at an appeal of the assessment was a Complaint for Review of Assessment filed with the STC on or about December 28, 2016.
Complainant argues that, due to the failure of the Respondent, it did not receive a notice that the subject properties assessed values increased, also known as an “impact statement.” Sections 137.180 and 137.355 provide that the Respondent will mail property owners notice of an increase to their assessment and the possible impact on the amount of property taxes owed. Complainant argues that due to the alleged failure of the Respondent the Complainant is entitled to either or both: (1) file an appeal with the STC without requirement of a BOE decision and/or (2) reduction of their assessment to the 2015 assessment.
Respondent argues that the “impact statements” were mailed timely and in compliance with Sections 137.180 and 137.355 RSMo. Respondent argues that since impact notices were mailed timely, Complainant is not entitled to relief because they did not appeal to the BOE.
Complainant’s evidence fails to establish that notices were not sent but merely establishes that Zike was unable to find any such notices in the records he examined and that it was his “belief that no such notices were received.” Such statement is uncategorical in nature. On the other hand, Respondent’s evidence is based solely upon the affidavit of Respondent without any documentary records supporting the affidavits.
The balance of Complainant’s and Respondent’s evidence does not rebut the presumption set forth above. The presumption is that notices were properly mailed by Respondent and received by Complainant. Respondent has stated that the records of Jackson County do not reflect any return of the mailed notices. Consequently, the Hearing Officer is persuaded that notices were properly mailed and received by Complainant. Complainant’s affidavit does nothing to obviate this.
Based upon the foregoing findings that notices were properly mailed to Complainant, Complainant failed to exhaust its administrative remedies prior to appealing to the STC. Consequently, Complainant’s appeals are Dismissed for lack of jurisdiction. Twelve Oaks Motor Inn, Inc. v. Strahan, 96 S.W.3d 106 (Mo. App. 2003).
Complainant failed to meet its burden of proof that notice was not properly effectuated.
Appeals 16-30241 and 16-30242 are DISMISSED for lack of jurisdiction.
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
The Collector of Jackson County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending the possible filing of an Application for Review, unless said taxes have been disbursed pursuant to a court order under the provisions of Section 139.031.8, RSMo.
Any Finding of Fact which is a Conclusion of Law or Decision shall be so deemed. Any Decision which is a Finding of Fact or Conclusion of Law shall be so deemed.
SO ORDERED this 24th day of August, 2017.
STATE TAX COMMISSION OF MISSOURI
Senior Hearing Officer
I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 24th day of August, 2017, to: Complainants(s) counsel and/or Complainant, the County Assessor and/or Counsel for Respondent and County Collector.
 Section 137.355 is substantially similar
 The statute provides for filing an appeal with the BOE before the 3rd Monday in June unless extended by the BOE. The Jackson County BOE extended its deadline.