HEI St. Louis LLC v. Bushmeyer (SLCY)

FREDDIE DUNLAP, ASSESSOR,)

ST. LOUIS CITY, MISSOURI,)

Respondent.)

ORDER

AFFIRMING HEARING OFFICER DECISION

UPON APPLICATION FOR REVIEW 

On June 4, 2013, Chief Counsel Maureen Monaghan (acting as Hearing Officer) entered her Decision and Order (Decision) setting aside the assessment by the Assessor, which had been sustained by the St. Louis City Board of Equalization, and set the value of the property under appeal at $20,400,000, an assessed commercial value of $6,528,000.

Respondent filed his Application for Review of the Decision.^[1]Complainant filed its Response.^[2]Respondent did not file a Reply.^[3]

CONCLUSIONS OF LAW

Standard Upon Review

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.^[4]

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 she 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.^[5]

The Commission will not lightly interfere with the Hearing Officer’s Decision and substitute its judgment on the credibility of witnesses and weight to be given the evidence for that of the Hearing Officer as the trier of fact.^[6]

DECISION

Respondent’s Grounds for Appeal

Respondent raised three points to support his general assertion that there were certain factual errors that resulted in the Decision being an abuse of discretion, erroneous, unreasonable, arbitrary, and capricious.The allegations of error are as follows:

1.              The Findings of Fact are inconsistent with past State Tax Commission methodology and decisions. 

2.              The Hearing Officer was inconsistent in applying the Franchise Fee. 

3.              The Hearing Officer transferred excessive value to intangibles. 

The Commission does not find the assertions of Respondent persuasive and will address each individually.

Hotel Valuations

The subject property is a hotel.Hotels are specialized income producing properties with the income being derived from the land, improvements, personal property, and business operation.^[7]The Commission has determined that the income approach is the most appropriate method of valuing income producing properties such as hotels.^[8]However, only the income derived from the land and improvements can be included in a real property tax appeal.^[9]An appraiser must evaluate and exclude the income derived from personal property and business operation in determining the real property value for a hotel.^[10]

The Commission has determined that the Rushmore Approach^[11] is the appropriate valuation methodology for hotels.^[12] Complainant and respondent are in agreement that the Commission has adopted the Rushmore Approach as a preferred method to value hotel properties.^[13]The Rushmore methodology deducts the management fees, franchise fees, and the value of the personal property from the overall income of a hotel.The methodology also deducts the reserves for replacement of personal property form the income of a hotel.^[14]Projected amounts for the management fees, franchise fees, and the reserves for replacement are based upon market data.

Allegation of Inconsistency with Past Methodology

This is the primary objection lodged against the Decision by Respondent.Essentially, Respondent objects to the consideration by the Hearing Officer of the St. Louis hotel sub-market data rather than relying exclusively on the actual data from the subject property.The Hearing Officer appropriately relied on evidence of market rates for occupancy, average daily rate (ADR), and franchise fees.These were based upon a detailed analysis of the St. Louis hotel sub-market by Complainant’s experts.Respondent’s appraiser relied solely upon the actual occupancy, ADR, and franchise fee for the subject property.

Respondent challenges the Hearing Officer’s concluded occupancy rate and ADR.Respondent cites the fact that “the hotel sold in October, 2007 and in 2008, with the current ownership, the occupancy fell from 68.2% to 63.2%”.Also referenced is the fact that during “the same time period, the ADR fell from $180.63 to $173.82).However, the valuation date for this appeal is 1/1/11.While historical performance may be a factor in valuation, the relevant data is the performance of the subject property and the market data as of 1/1/11.The occupancy rate for the subject property was 73% in 2010 and the Hearing Officer found the St. Louis hotel sub-market occupancy rate was 64.7% for 2010.Complainant’s appraiser used an occupancy rate of 70%, which was accepted by the Hearing Officer.The ADR for the subject was $136.80 in 2010 and the sub-market ADR was $123.44 for 2010.An ADR of $125.00 was used by Complainant’s appraiser and adopted by the Hearing Officer.

The occupancy rate and the ADR concluded by the Hearing Officer are supported by substantial and persuasive evidence.The evidence included historical performance of the entire St. Louis hotel sub-market from 2000 to 2010 and specific data from the subject property and five hotels comparable to the subject for the years 2008 to 2010.^[15]The evidence was not rebutted by Respondent.In point of fact, no specific data with regard to the subject’s sub-market was presented by Respondent.Respondent’s appraiser elected to rely exclusively on general national hot trend data and specific data from the subject property.^[16]It was reasonable for the Hearing Officer to find Complainant’s evidence to be substantial and persuasive and not accord probative weight to the evidence presented by Respondent.

Allegation of Inconsistent Application of Franchise Fee

Respondent notes the discrepancy between the 4% to 6% range of franchise fee for most hotel chains nationwide and the 7.9% franchise fees paid in conjunction with the subject property.The evidence demonstrated that the 4% to 6% franchise fee range is skewed low due to the fact that owner managed hotel properties pay no franchise fee or a nominal amount but are included in the 4% to 6% range.^[17]Therefore, the discrepancy between 4% to 6% and the 7.9% franchise fee paid in conjunction with the subject property is not as great as Respondent asserts. The conclusion of the Hearing Officer on this point was supported by the evidentiary record.The Commission finds no basis to set aside the judgment of the Hearing Officer on this point.

Allegation of Transfer of Excessive Value to Intangibles

In advancing this argument Respondent focuses on the sale of the subject property in October, 2007 and compares that to the value determined by the Hearing Officer for 1/1/11.Respondent’s reliance on the 2007 transaction is misplaced.Any sale of real estate in the United States that occurred in 2007 must be evaluated in the context of the real estate bubble that was in the process of bursting.Counsel for Respondent read into the record a portion of Complainant’s Appraisal that described the collapse of the real estate market in 2007.^[18]Respondent’s argument that the Hearing Officer erred in giving value to intangibles based on the 2007 sale price ignores the recession that occurred immediately after the sale.Additionally, the sales price was not necessarily a good indicator of the true value in money of the subject, either in 2007 or 1/1/11.Depending on the purchaser and the investment criteria, sales price could be skewed by a number of factors.^[19]For example, the purchaser could overpay for a single hotel property as part of a more global investment strategy.^[20] Finally, the 2007 sales price undoubtedly included non-taxable business assets and any comparison with the valuation of the subject property pursuant to Missouri law requires a true “apples to apples” analysis.Respondent’s claim has simply set forth numbers and attempted to reach a conclusion unsupported by any credible analysis.

It is also suggested by Respondent that the hotels identified in the “competitive set” are not comparable to the subject.Respondent relies on an article by Steven Rushmore to argue that the subject must be compared to comparable properties and not just competitive properties.This argument is inconsistent with the transcript which is replete with acknowledgements that the subject property was judged on the basis of “comparable” properties in the competitive set.^[21]Complainant’s expert conclusively testifies that three of the hotels in the competitive set are comparable to the subject property.The appraiser stated that the Chase Park Plaza and Ritz-Carlton were in a tier above the subject property.^[22]However, Complainant’s appraiser used all five “competitive” hotels in his evaluation of the occupancy rate and ADR for the St. Louis hotel sub-market.The occupancy rate and ADR for the “competitive” set would have been lower had Complainant’s expert excluded the Chase Park Plaza and the Ritz-Carlton.In any case, it was reasonable for the Hearing Officer to rely upon the Complainant’s expert opinion that three of the five hotels were comparable and that all five hotels could be used to calculate the occupancy rate and ADR for the St. Louis hotel sub-market.

Summary and Conclusion

A review of the record in the present appeal provides support for the determinations made by the Hearing Officer.There is competent and substantial evidence to establish a sufficient foundation for the Decision of the Hearing Officer.A reasonable mind could have conscientiously reached the same result based on a review of the entire record. The Commission finds no basis to support a determination that the Hearing Officer acted in an arbitrary or capricious manner or abused her discretion as the trier of fact and concluder of law in this appeal.^[23]

The Hearing Officer did not err in her determinations as challenged by Complainant.

ORDER

The Commission upon review of the record and Decision in this appeal, finds no grounds upon which the Decision of the Hearing Officer should be reversed or modified.Accordingly, the Decision is affirmed.The Decision and Order of the hearing officer, including the findings of fact and conclusions of law therein, is incorporated by reference, as if set out in full, in this final decision of the 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 City, 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 November 19, 2013.

STATE TAX COMMISSION OF MISSOURI

Bruce E. Davis, Chairman

Randy B. Holman, Commissioner

Victor Callahan, Commissioner

DECISION AND ORDER

HOLDING 

Decision of the St. Louis City Board of Equalization sustaining the assessment made by the Assessor is SET ASIDE.True value in money for the subject property for tax years 2011-2012 set at $20,400,000, classified as commercial property (assessed value of $6,528,000).Complainant appeared by Counsels Thomas J. Campbell and Robert Droney, St. Louis, Missouri.Respondent appeared by Assistant City Counselor Rich Kismer. Evidentiary hearing was conducted by Hearing Officer Maureen Monaghan. Case decided by Hearing Officer Monaghan.

ISSUE

Complainant appeals, on the ground of overvaluation, the decision of the St. Louis City 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.The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.

FINDINGS OF FACT

1.Jurisdiction.Jurisdiction over this appeal is proper.Complainant timely appealed to the State Tax Commission from the decision of the St. Louis City Board of Equalization.A hearing was conducted on February 1, 2013, at the St. Louis City Administration Building, St. Louis, Missouri.Parties filed briefs.

2.Assessment.The Assessor appraised the property at $46,260,000, assessed commercial value of $7,401,600.The Board sustained the assessment.[24]

3.Subject Property.The subject property is located at 318-320 S. 9^th Street, St. Louis, Missouri.The property is identified by locator number 0425-00-00101.The subject tract operating as a Westin Hotel.The hotel was purchased by the Complainant in October 2007 for $53,500,000.The purchase price included personal property and intangible items.

4.Complainant’s Evidence.Complainant submitted the following exhibits which were received into evidence:

 Complainant also asked the Hearing Officer to take judicial notice of Equitable Life Assurance/Marriott Hotel v. Assessor of St. Louis County, 852 S.W.2d 376 (Mo. App. ED 1993).

5.Respondent’s Evidence.Respondent submitted the following exhibits which were received into evidence: 

 6.Highest and Best Use.The highest and best use of the property as improved is continued use as an upscale, full-service hotel.

7.Sales of Hotels.Each appraiser reviewed sales of similar properties.Neither appraiser relied on the approach to determine value.The weakness in the sales comparison approach in appraising hotel properties is that the sale of such properties involve more than real property and market value is dependent upon the income production ability of the property.

8.Cost Approach.Neither party’s appraiser developed the cost approach to value.

9.Income and Expenses.Both appraisers developed the income approach to value.The income approach to value is the most appropriate approach to value for the subject property.The Rushmore model for hotel valuation is appropriate.

10.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.[27]

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.[28]

Presumption in Appeals

There is a presumption of validity, good faith and correctness of assessment by the City Board of Equalization.[29]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.[30]

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.[31]True value in money is defined in terms of value in exchange and not value in use.[32]It is the fair market value of the subject property on the valuation date.[33]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.[34] 

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.[35]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.[36]

Complainant Met 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, 2011.[37]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.” [38]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[39]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.[40]

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.[41]

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.[42]

Complainant’s appraiser (Bisema) is a licensed appraiser employed by HVS Consulting & Valuation Services and has been involved in appraisals for over 300 hotels.HVS is a large hotel consulting and valuation firm and as such have a large database on hotels providing them with occupancy rates, average daily rates, RevPar, management and franchise fees, and other data that directly impacts the valuation ofhotels.

Complainant’s expert (Dolan) is recognized as an expert of hotel valuation, more specifically, hotel valuation using the Rushmore approach.He has taught, testified, and co-authored articles on the Rushmore method with Stephen Rushmore.

The City’s appraiser is a Missouri General Certified Real Estate Appraiser.He works with various types of commercial property with the City of St. Louis.His work with hotel properties is limited having appraised the subject property on two occasions and one other hotel property.The City’s appraiser has limited resources for obtaining information regarding hotels and market data in the area.

Valuation of Hotels

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.[43]

The income approach is the most appropriate approach for income producing properties such as hotels.Hotels are specialized income producing properties with the income being derived from the land, improvements, personal property and the business operation.The issue in this case is the valuation of the land and improvements.Therefore, the appraisers must separate the components.

The methodology of valuation known as the Rushmore Approach is the valuation methodology for hotels.The Rushmore Approach has been recognized by state and federal courts, the Missouri State Tax Commission, and by hotel owners and assessors’ offices, as the most appropriate approach for valuing hotel properties.The valuation methodology was developed by Stephen Rushmore, MAI, FRICS, CHA.Mr. Rushmore wrote all five books for the Appraisal Institute on the valuation of hotels and motels.It has been the standard for valuation of hotels for over twenty years.

Rushmore excludes the value of and income derived from fixtures, furniture and equipment (FF&E) and adjustments are made for replacement of the property and for a return on the FF&E.Rushmore also deducts the expenses for items such as management fees, franchise fees and marketing to address the value derived from the business component.

Income:The Complainant’s appraiser reviewed the subject’s historical income data, the subject’s competition’s income information as well as the hotel industry to determine an appropriate income to use.The appraiser’s income determination was less than the subject’s historic performance.The appraisal reflects that the subject property had historically outperformed other properties.Such performance could be a result of influences like location or could be because of superior management.When reviewing the income information for several years, the hotel continued to outperform its competitors.When the competitors’ occupancy rate was decreasing as the hotel industry was experiencing decreased occupancy, the subject’s occupancy was increasing.The appraiser reasoned that the superior performance was due to the management and therefore made an adjustment for superior management.The adjustment was made by adjusting the occupancy rate and average daily rate.The appraiser’s methodology was appropriate.An appraiser should look at the subject property’s history, the competitors’ history and the industry to determine income and expenses.The appraiser, after reviewing all data, may deem it appropriate to use market data rather than the subject’s data if the subject is over or under performing.

In 2010, the subject property’s occupancy rate was 73%, an increase from 2009 when the occupancy rate was 68.6%.The market occupancy rate was 64.7%.The city’s appraiser used an occupancy rate of 74% and the taxpayer used a 70% rate.The taxpayer’s rate is appropriate.

The market average daily rate was $123.44.The city’s appraiser used a rate of $138.58.The taxpayer used $125.00.The income figure used by the appraiser, although less than historic income, was still above the market income and appropriate.

Expenses: The expenses determined by the Complainant’s appraiser were similar to the expense amounts used by the city.

Business Component: Management and franchise flags are important to address the on-going issues of labor and marketing and these items also represent a portion of the income stream attributed to the business component.The appropriate handling of these items is to either deduct the expenses from the income before capitalizing the income to determine value OR determine the value of the property or then deduct the capitalized cost of the business components. The deduction accounts for the going concern business component thereby removing the business value from the value attributable to the real property.The Complainant’s appraiser reviewed the market and subject’s actual for an appropriate deduction for these items.

The subject’s actual management fee is 3% of total revenue.A review of the market indicated a range of 2.5% to 5% fee.The taxpayer used a rate of 4%.

The franchise fee for the subject property is 7% of room revenue and 2% of food revenue under an agreement that has a life of 20 years.The franchise fee for most chains is in a range of 4-6% gross.The taxpayer used 7.9%.Although the fee appears to be high, the hotel has performed above the market and the appraiser used higher average daily rate and occupancy percentage.

Personal Property:With the personal property component of the valuation, the appraiser makes two deductions under the Rushmore approach.The first is for the value of the personal property currently in place and the second is for a reserve for replacing the property in order to remain competitive in the future.To account for the personal property currently in place, the appraiser may do either of two calculations.The appraiser may determine the value of the entire property and then deduct the market value of the personal property so that only the market value for the land and improvements remain.Alternatively, the appraiser could remove from the income stream, any income attributed to the FF&E.The appraiser would do this my multiplying the value of the FF&E by the capitalization rate and deducting it from the income.

The second deduction the appraiser must make is for the replacement of FF&E to maintain a competitive hotel.This is done with a reserve for replacement; the reserve for replacement is an expense item.

The Complainant’s appraiser correctly handled the return of personal property.He deducted the valuation of the personal property as determined by the City for property tax purposes.

STC Decision, HEI St. Louis 10-20056

The Respondent argues that the market value ($29,301,950) as determined in Appeal 10-20056 has evidentiary value as to the market value of the property as of January 1, 2011.A hearing officer make take notice of a prior finding of the State Tax Commission.The hearing officer should note the date of valuation.The parties may present evidence, such as the appraisal and testimony of a general certified appraiser, to provide the hearing officers with information to weigh the evidentiary value of a prior determination.Information such as current market data,updated information on the subject property, and subsequent decisions of the State Tax Commission can impact the weight to be given to the evidence.In this case, the Complainant’s appraiser in the prior hearing used the Business Enterprise Approach (BEA) to value the property. The State Tax Commission did not find BEA to be appropriate.The BEA is a relatively new income method of valuation, it moves a disproportionate share of the hotel’s value out of the real property component and into the business and personal property components, thereby significantly reducing a hotel’s property tax assessment. In the current hearing, theComplainant hired an appraiser that is certified in Missouri and works with Mr. Dolan, an expert in the Rushmore methodology.

ORDER

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

The assessed value for the subject property for tax years 2011 and 2012 is set at $6,528,000 classified as commercial property.

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, 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 appeal is based will result in summary denial. [44]

Disputed Taxes

The Collector of St. Louis City, 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 June 4, 2013.

STATE TAX COMMISSION OF MISSOURI

Maureen Monaghan

Hearing Officer