State Tax Commission of Missouri
|HARMON PROPERTIES, INC||)|
|v.||)||Appeal Number 09-11006|
|JAKE ZIMMERMAN, ASSESSOR,||)|
|ST. LOUIS COUNTY, MISSOURI,||)|
ORDER SETTING ASIDE HEARING OFFICER DECISION
On June 29, 2015, Hearing Officer Maureen Monaghan issued her order setting aside the value placed upon the subject property by the St. Louis County Board of Equalization. Complainant subsequently filed an Application for Review consisting of four (4) pages.
Standard Upon Review
A party subject to a Decision and Order of a Hearing Officer with the State Tax Commission may file an application requesting the case be reviewed by the Commission. The Commission may then summarily allow or deny their request. The Commission may affirm, modify, reverse or set aside the decision. The Commission may take any additional evidence and conduct further hearings.
Complainant asserts that “the Hearing Officer erred in finding that the true value in money of the subject property was $6,370,880, rather than $4,265,000, because Complainant’s value was supported by competent and substantial evidence upon the whole record…” Complainant additionally criticized the Decision because the Hearing Officer did not use the higher vacancy rate, compared to the market vacancy rate, proposed by Complainant’s appraiser.
Complainant’s counsel asserts that use of the 20% vacancy and collection loss rate was justified because of “the overriding fact that the date of value is January 1, 2009, when the economy had begun it descent into the most significant recession since the 1930’s” and apparently because “the subject’s vacancy rate (excluding collection loss) was 35 percent”, all while conceding that “[t]he submarket’s vacancy rate (excluding collection loss) was 11.4 percent”. Complainant’s Application for Review, Page 2.
DISCUSSION AND RULING
Complainant’s Burden of Proof
To meet Complainant’s burden of proof, if any evidence on any essential element of Complainant’s case leaves the Commission “in the nebulous twilight of speculation, conjecture and surmise” Complainant’s burden is not met. See, Rossman v. G.G.C. Corp. of Missouri, 596 S.W.2d 469, 471 (Mo. App. 1980). In the present appeal, the Hearing Officer calculated a value utilizing market data, but based upon numbers mistakenly believed to be true. Consequently, as set forth below, the Decision of the Hearing Officer is SET ASIDE.
Weight to be Given Evidence
Neither the Hearing Officer nor the Commission is 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 and the Commission 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). In the present appeal, the Hearing Officer simply did not believe the vacancy rate assigned by Complainant’s appraiser to be substantial and persuasive.
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. Missouri Pipeline Co. v. Wilmes, 898 S.W. 2d 682, 687 (Mo. App. E.D. 1995). 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. Drey v. State Tax Commission, 345 S.W. 2d 228, 234-236 (Mo. 1961), Snider v. Casino Aztar/Aztar Missouri Gaming Corp., 156 S.W. 3d, 341, 348 (Mo. 2005).
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 and Commission, 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. Beardsley v. Beardsley, 819 S.W. 2d 400, 403 (Mo. App. 1991); Curnow v. Sloan, 625 S.W. 2d 605, 607 (Mo. 1981); Scanlon v. Kansas City, 28 S.W. 2d 84, 95 (Mo. 1930).
Upon review of all pertinent information, including a review of the appraisal report for the year 2009 regarding the subject property, the Commission finds that the ultimate conclusion of value determined by Mr. Hottle is incorrect. Furthermore, the statement by Complainant’s counsel justifying the use of the 20 percent rate due to “the overriding fact that the date of value is January 1, 2009, when the economy had begun it descent into the most significant recession since the 1930’s”, is not supported by any evidence found in the record. The evidence shows that Mr. Hottle in his appraisal report stated:
There are no adverse external conditions, which affect the subject, and there are no adverse conditions that would detract from its continued marketability. However, there has been an economic downturn, which has occurred since the fall of 2008. This has imposed a negative impact on all types of property values in the entire metropolitan area. Hottle Appraisal for 09-11006, Page 18.
Additionally, although some variance from the submarket rate of 11.4 percent may be justified, the Commission, in its best judgment, finds no credible justification for the use of a 20 percent vacancy and collection loss rate regarding the subject property.
The Commission notes that Mr. Hottle utilized both the Income Approach and the Sales Comparison Approach to value the subject property. The values he determined for each are as follows:
Income Approach- $4,265,000
Sales Comparison Approach- $5,875,000
Regarding the Sales Comparison Approach Mr. Hottle stated:
The Sales Comparison Approach has been used within this appraisal assignment as there were sufficient sales of similar facilities on a regional and local basis which could be used to compare with the subject property. The appraiser previously pointed out that this is a local market with specific sales of similar type properties in the market used and supported by other indicators of value. The final value estimate per this approach is felt to be a reliable indicator of value based upon these assumptions. Hottle Appraisal for 09-11006, Page 71.
The valuation utilizing the Income Approach indicated a value which was only 72.6 percent (rounded) of the value indicated by the Sales Comparison Approach. Such a large variance suggests a lack of reliability in such appraisal. Moreover, the net adjustment amounts in such approach for comparables 1-4 were listed in the appraisal as 60%, 70%, 50% and 60% respectively. Such numbers are in fact, incorrect. The net adjustments were in actuality 40%, 30%, 50% and 40% respectively. Furthermore, 25% of each of these amounts was due to purported “functional utility”, without any adequate explanation, other than generalities, about what in particular justified such a large adjustment. Although interior pictures of the subject property were provided, no pictures of the interiors of the comparable properties were provided.
Correction of Valuation
Complainant’s point as to the error in the calculation of value by the Hearing Officer is well taken. The calculation, using the findings of the Hearing Officer should have been:
|Potential Gross Income||$2,123,576|
|Vacancy and Collection Loss (11.4%)||(243,114)|
|Effective Gross Income||1,889,462|
|Net Operating Income||$763,510|
|Indication of Value||$5,560,888|
The Decision and Order of the Hearing Officer, including the findings of fact and conclusions of law therein, is SET ASIDE. True value in money is determined to be $5,561,000, commercial assessed value of $1,779,520.
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 3rd day of November, 2015
STATE TAX COMMISSION
Bruce E. Davis, Chairman
Randy Holman, Commissioner
Victor Callahan, Commissioner
Certificate of Service
I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 3rd day of November, 2015, to:
James Gamble, Attorney for Complainant; firstname.lastname@example.org
Edward Corrigan, Attorney for Respondent; email@example.com
Jake Zimmerman, Assessor, firstname.lastname@example.org
Mark Devore, Collector, email@example.com
State Tax Commission of Missouri
|HARMON PROPERTIES, INC||)|
|v.||)||Appeal Number 09-11006|
|JAKE ZIMMERMAN, ASSESSOR,||)|
|ST. LOUIS COUNTY, MISSOURI,||)|
DECISION AND ORDER
St. Louis County Board of Equalization’s assessment SET ASIDE Complainant presented substantial and persuasive evidence to rebut the presumption of correct assessment by the Board of Equalization.
True value in money for the subject property 2009-2010 is set at $6,370,880, commercial assessed value of $2,038,680
Complainant appeared by counsel, James Gamble. Respondent appeared by Attorney Priscilla Gunn.
Case heard and decided by Hearing Officer Maureen Monaghan.
Complainant appeals, on the grounds of overvaluation and discrimination, the decision of the County of Board of Equalization. The Complainant abandoned their discrimination claim. Having considered all of the competent evidence upon the whole record, the Hearing Officer finds that the Complainant presented substantial and persuasive evidence as to overvaluation. The following Decision and Order is entered.
FINDINGS OF FACT
- Jurisdiction. Jurisdiction over this appeal is proper. Complainant timely appealed to the State Tax Commission from the decision of the County Board of Equalization.
- Schedule and Procedure. The State Tax Commission issued an Order setting forth the schedule and procedures for this appeal on August 15, 2014. The Schedule and Procedure required that each party file and exchange exhibits and written direct testimony to establish their case in chief on or before March 5, 2015. Complainant and Respondent filed and exchanged the exhibits set out below under Evidence. Parties had until April 7, 2015, to file objections and rebuttal exhibits. Neither party objected to the exhibits filed. Parties were ordered to file, on or before May 5, 2015, a request for hearing. A hearing was requested for 2009 however the Respondent’s exhibit is a document. The appeal was taken under advisement on exhibits submitted.
- Subject Property. The subject property is identified as parcel number 10O420014. It is located at 502 Earth City Plaza, St. Louis, MO. The property consists of 289,674 square feet of land improved with a multi-tenant office building. The building has a net rentable area of 133,286 sf and parking.
- Assessment. The Assessor and Board of Equalization determined the following true market values respectively for the various tax years as follows:
2009-2010: Assessor $7,951,400, BOE $7,951,400
- Evidence. Complainant filed with the Commission the following documents: Exhibit A – Appraisal Report and Exhibit B – Written Direct Testimony of John Hottle. Respondent filed Exhibit 1 – the BOE Decision.
- The True Market Value of the property as of January 1, 2009, was $6,370,880.
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. 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 for the property under appeal. By statute real and tangible personal property is assessed at set percentages of true value in money. Section 137.115.5, 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 the board of equalization, correcting any assessment which is unlawful, unfair, improper, arbitrary or capricious. Section 138.431.5 RSMo; 12 CSR 30-3.080 (2). The filing of exhibits and written direct testimony 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 Respondent did not file any rebuttal exhibits. Therefore, the Hearing Officer simply considered the exhibits filed and then proceeded to ascertain if said exhibits met the standard of substantial and persuasive evidence to establish the market value of the property.
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. 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 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:
- Buyer and seller are typically motivated.
- Both parties are well informed and well advised, and both acting in what they consider their own best interests.
- A reasonable time is allowed for exposure in the open market.
- Payment is made in cash or its equivalent.
- Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.
- 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
Mr. Hottle conducted an appraisal of the property under appeal consistent with this standard.
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. 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 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. St. Louis County v. Boatmen’s Trust Co., 857 S.W.2d 453, 457 (Mo. App. E.D. 1993); Vincent by Vincent v. Johnson, 833 S.W.2d 859, 865 (Mo. 1992); Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. 1991); Curnow v. Sloan, 625 S.W.2d 605, 607 (Mo. banc 1981).
The Hearing Officer is persuaded that the information presented in the appraisal is based upon appropriate and sound appraisal practice and therefore constitutes substantial and persuasive evidence to establish the true market value concluded of $6,370,880 for 1/1/09.
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. See, Nance v. STC, 18 S.W.3d 611, at 615 (Mo. App. W.D. 2000); Hermel, supra; 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. Div. 2 1974).
The appraiser appraised the property developing the sales comparison and income approach. The methodology utilized was appropriate for the appraisal problem presented in the present appeal.
Complainant Proves Value
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. Hermel, supra 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.” 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).
The appraisal submitted opined a value using the sales comparison and income approaches. The appraiser in his income approach utilized a vacancy rate higher than market. The information presented allowed a finding of value for 2009. The Complainant’s appraisal evidence meets the required evidentiary standard to rebut the presumption of correct assessment by the Board in 2009 and to establish the true value in money for the subject property, such being $6,370,880 for 1/1/09.
The assessed valuation for the subject property as determined by the Board of Equalization for St. Louis County for the subject tax day is SET ASIDE. True value in money and assessment value for the subject property for the various tax years are as follows:
2009-2010 is set at $6,370,880, commercial assessed value of $2,038,680
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.
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 June 29, 2015.
STATE TAX COMMISSION OF MISSOURI
Certificate of Service
I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 29th day of June, 2015, to: Complainants(s) counsel and/or Complainant, the county Assessor and/or Counsel for Respondent and county Collector.