Hawthorn Bank v. Keck (Henry)

November 6th, 2013

State Tax Commission of Missouri


HAWTHORN BANK,                                 )

                              Complainant,                )

           v.                                                           )                  Appeal No.12-59500

JAMES KECK, ASSESSOR,                      )


                               Respondent.                 )



Decision of the Henry County Board of Equalization sustaining the assessment made by the Assessor is 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 for tax year 2012 is set at $1,900,000, commercial assessed value of $608,000.

Complainant appeared by Counsel, Cathy Steele, Clayton, Missouri

Respondent appeared in person and by Counsel, Richard M. Shield, Prosecuting Attorney

Case heard and decided by Senior Hearing Officer W. B. Tichenor.


Complainant appeals, on the ground of overvaluation, the decision of the Henry 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, 2011.

[1]The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.


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

2.  Evidentiary Hearing.   The Evidentiary Hearing was held on September 12, 2013, at the Henry County Courthouse, Clinton, Missouri.

3.  Identification of Subject Property.   The subject property is identified by map parcel number 18-1.0-12-002-002-001.000.It is further identified as located at 1400 East Ohio, Clinton, Missouri.[2]

4.  Description of Subject Property.  The subject property consists of a 3.36 acres tract of land improved by 13,561 square feet (net rentable area) one story branch bank facility, constructed in 2007.[3]A detailed description can be found in Exhibits A & B.

5.  Assessment.  The Assessor appraised the property at $2,870,500, an assessed commercial value of $918,560.The Board of Equalization sustained the assessment.[4]

6.  Complainant’s Evidence.  Complainant offered into evidence Exhibit A – Appraisal Report, dated 1/1/11 – Laird Goldsborough[5] and Exhibit B – Written Direct Testimony of Mr. Goldsborough.No objections or rebuttal exhibits were filed in accordance with the deadline establish by Bench Order, dated 3/18/13.Exhibits A and B were received into evidence.Mr. Goldsborough testified at the evidentiary hearing.

7.  No Evidence of New Construction & Improvement.  There was no evidence of new construction and improvement from January 1, 2011, to January 1, 2012, therefore the assessed value for 2011 remains the assessed value for 2012.[6]

8.  Goldsborough Conclusion of Value.  Mr. Goldsborough developed the three recognized and accepted approaches to value.He concluded a value of $1,750,000 under the cost approach.The value indicated by the sales comparison approach was $1,970,000.The income approach value was $1,740,000.The final value estimate was $1,900,000.See, Methods of Valuation, infra.

9.  Presumption of Correct Assessment Rebutted.  Complainant’s evidence was substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2011, to be $1,900,000, as proposed.See, Presumption In Appeal and Complainant Proves Value, infra.

10.  Respondent’s Evidence.  Respondent offered into evidence Exhibit 1 – Written Direct Testimony – James R. Keck.No objection was filed to the Exhibit.It was received into evidence.

11.  Exclusion of Tendered Exhibit.  Respondent tendered a document that was objected to and by Order dated 9/3/13 it was excluded from evidence.See, Exclusion of Tendered Exhibit, infra.



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] 

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.[8]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.[9]

Presumption In Appeal

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[10]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.When some substantial evidence is produced by the Complainant, “however slight,” the presumption disappears and the Hearing Officer, as trier of facts, receives the issue free of the presumption.[11]The presumption is not evidence of value.

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.[12]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[13]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.[14]

Upon presentation of the Complainants’ evidence[15] the presumption in this appeal was rebutted.The submission of the appraisal report, performed by a state certified real estate appraiser, established prima facie that the Board’s value was in error.The appraisal established what the fair market value that should have been placed on 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.[16]True value in money is defined in terms of value in exchange and not value in use.[17]It is the fair market value of the subject property on the valuation date.[18]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.[19] 

The Goldsborough appraisal was developed utilizing the Standard for Valuation.[20]

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.[21]

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.[22]In the present appeal, the Hearing Officer has found that the testimony and appraisal report of Mr. Goldsborough is entitled to be given sufficient weight to establish the fair market value of the property as of 1/1/11.

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.[23]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.[24] Complainant’s appraiser arrived at his final estimate of value after having developed and reconciled the three accepted approaches to value.[25]The Hearing Officers review of each of these approaches established that each was performed in keeping with the accepted standards and guidelines for each approach.Each approach was adequately supported by relevant data.Each approach was developed and presented in keeping with the appraisal requirements established by Commission Rule.[26]

Opinion Testimony by Experts

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.[27]

The testimony and appraisal of Mr. Goldsborough provided assistance to the Hearing Officer in determining the value of Complainant’s property.The data upon which the appraisal was performed is the type of data that would be relied upon an appraisal expert in reaching a conclusion of value for the property under appeal.The data are deemed to have been reliable for the appraisal problem.

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, 2011.[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]A valuation which does not reflect the fair market value (true value in money) of the property under appeal is an unlawful, unfair and improper assessment.

Complainant met the required burden of proof to present substantial and persuasive evidence by submitting the Goldsborough appraisal.The appraisal was done in conformity with the Uniform Standards of Professional Appraisal Practice.[30]Complainant’s evidence proved the fair market value of $1,900,000.

Respondent’s Evidence

Respondent presented his written direct testimony.This testimony was a summary of mass appraisal utilized to arrive at the value for Complainant’s property relying on the Hunnicut costing system.The Hunnicut methodology is recognized for mass appraisal by the Commission.However, when an appeal moves before the Commission the standard for an appraisal relying on the cost approach comes under 12 CSR 30-3.065 (1) (A) and (B) 3.Exhibit 1 did not contain the necessary elements to qualify as an appraisal of the subject property.Without presentation of the underlying documentation on factors including land value, replacement costs for improvements, allocation of depreciation and the basis for each of these elements, the conclusion of value presented has no probative value.It simply explained the mass appraisal of the subject that set a value that was sustained by the Board.

Exclusion of Tendered Exhibit

Respondent tendered to the Commission on 8/30/13 a document purporting to show amounts for deeds of trust compared to assessor’s appraised values on a list of forty properties.Respondent wished to offer the exhibit with testimony of Respondent “to rebut contentions made by Hawthorne (sic – Hawthorn) Bank’s appraiser that the real estate market is soft in Henry County.”Complainant objected to the tendered document.Order Sustaining Objection to Document was issued 9/3/13.Said Order is incorporated by reference as if set out in full in this Decision.


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

The assessed value for the subject property for tax year 2012 is set at $608,000.

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.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.

Failure to state specific facts or law upon which the application for review is based will result in summary denial. [31]

Disputed Taxes

The Collector of Henry 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 October 1, 2013.


W. B. Tichenor

Senior Hearing Officer


[1] The value as of 1/1/11 remains the value as of 1/1/12 unless there is new construction and improvement to the property.Section 137.115.1 RSMo.

 [2] Complaint for Review of Assessment; BOE Decision, dated 7/19/12; Exhibits A & B

 [3] Exhibit A – Executive Summary and Identification of the Property, p. 1

 [4] Exhibit A – Taxes and Assessment Data, p. 12; BOE Decision, dated 7/19/12 – Attached to Complaint for Review of Assessment

 [5] State Certified General Appraiser

 [6] Section 137.115.1, RSMo.

 [7] Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo.

 [8] Article X, Sections 4(a) and 4(b), Mo. Const. of 1945

 [9] Section 137.115.5, RSMo – residential property at 19% of true value in money; commercial property at 32% of true value in money and agricultural property at 12% of true value in money.

 [10] 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)

 [11] United Missouri Bank of Kansas City v. March, 650 S.W.2d 678, 680-81 (Mo. App. 1983), citing to State ex rel. Christian v. Lawry, 405 S.W.2d 729, 730 (Mo. App. 1966) and cases therein cited.

 [12] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959)

 [13] See, Cupples-Hesse, supra.

Substantial and persuasive evidence is not an extremely high standard of evidentiary proof.It is the lowest of the three standards for evidence (substantial & persuasive, clear and convincing, and beyond a reasonable doubt).It requires a small amount of evidence to cross the threshold to rebut the presumption of correct assessment by the Board.The definitions, relevant to substantial evidence, do not support a position that substantial and persuasive evidence is an extremely or very high standard.

“Substantial evidence: Evidence that a reasonable mind would accept as adequate to support a conclusion; evidence beyond a scintilla.”Black’s Law Dictionary, Seventh Edition, p. 580.

The word scintilla is defined as “1. a spark,2. a particle; the least trace.” Webster’s New World Dictionary, Second College Edition.Black’s definition at 1347 is “A spark or trace <the standard is that there must be more than a scintilla of evidence>.”There must be more than a spark or trace for evidence to have attained the standard of substantial.Once there is something more than a spark or trace the evidence has reached the level of substantial.Substantial evidence and the term preponderance of the evidence are essentially the same.“Preponderance of the evidence.The greater weight of the evidence; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”Black’s at 1201.Substantial evidence is that a reasonable mind would accept as adequate to support the conclusion.Preponderance is sufficient to incline a fair and impartial mind to one side of the issue rather than the other, i.e. support the proposed conclusion.

 [14] Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975).

 [15] Exhibits A & B; Testimony of Mr. Goldsborough at hearing

 [16] 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).

 [17] 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).

 [18] Hermel, supra.

 [19] 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.

 [20] Exhibit A – Glossary – Market Value

 [21] 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).

 [22] 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).

 [23] 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).

 [24] 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).

 [25] Exhibit A – Cost Approach – pp. 1 – 10; Sales Comparison Approach – pp. 1 – 9; Income Approach – pp. 10 – 20; Reconciliation; Exhibit B, & Goldsborough testimony at hearing

 [26] 12 CSR 30-3.065

 [27] Section 490.065, RSMo; State Board of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. SC. 2004); Courtroom Handbook on Missouri Evidence, Wm. A. Schroeder, Sections 702-505, pp. 325-350; Wulfing v. Kansas City Southern Industries, Inc., 842 S.W.2d 133 (Mo. App. E.D. 1992).

 [28] Hermel, supra.


[29] 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).


[30] Exhibits A & B


[31] Section 138.432, RSMo.