Hoerman Family LP v. Shipman (St. Charles)

February 29th, 2012

State Tax Commission of Missouri






v.) Appeal No.10-32534











Decision of the St. Charles County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.True value in money for the subject property for tax year 2010 is set at $747,490, commercial assessed value of $239,200.

Complainant appeared John Bradford Goss, St. Louis, Missouri.

Respondent appeared by Assistant County Counselor Charissa Mayes.

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

Case decided by Commission.


Complainant appeals, on the ground of misclassification, the decision of the St. Charles County Board of Equalization, which sustained the assessment of the subject property.The Commission takes this appeal to determine whether the property under appeal should be classified as agricultural and assessed based upon the appropriate agricultural land productive

value as of January 1, 2010.The Commission, 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 St. Louis County Board of Equalization.A hearing was conducted on October 18, 2011, at the St. Charles County Administration Building, St. Charles, Missouri, Senior Hearing Officer, W. B. Tichenor presiding.

2.Assessment.The Assessor appraised the property at $747,490, a commercial assessed value of $239,200.[1]The Board sustained the assessment.[2]

3.Subject Property.The subject property is located at Mexico Road and Hwy k, O’Fallon, Missouri.The property is identified by map parcel number 2-0119-A685-00-A, Assessor’s account number T1022500052.The property consists of Lot A – 2.86 acres and Lot C – 3.15 acres, total acreage of 6.01 acres, rounded to 6 acres.[3] The two tracts are mostly open, however, a portion of land along the east side has a significant rock shelf area that is not tillable.Along the north side of the property are trees, a creek, and a low (wetland) area that is also not tillable.The south side of the property fronts to Mexico Road and there exists a strip along the south side occupied by electric poles and line which is not readily tillable. [4]

4.Complainant’s Evidence.Complainant submitted the following exhibits:




Photo of Subject Property – 11/08


Photo of Subject Property – 9/28/09


Photo of Subject Property – 9/28/09


St. Charles Engineering “Concept Plan”


Photo of Subject Property – 2/10


Receipt – Lammert Farms – 11/4/08


Receipt – Lammert Farms – 10/14/09


Receipt – Landscape Maintenance – 10/1/10


Photo of Subject Property – 9/18/10


Photo of Subject Property – 9/25/10


Affidavit of Robert Lammert – Lammert Farms, LP


Written Direct Testimony – Mark Hoerman


Supplemental Written Direct Testimony – Mark Hoerman


Supplemental Written Direct Testimony – Robert Lammert


Objections were filed to Exhibits A, B, C, E, F, G, H, I, J and K.Objections were ruled on by Order dated 9/22/11, which was incorporated by reference into the transcript as if set out in full.[5]Exhibits A through N were received into the record.[6]

Complainant’s evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the agricultural use of the subject property as of January 1, 2010.See, Complainant Fails To Prove Agricultural Use, infra.

5.Respondent’s Evidence.Respondent submitted the following exhibits:




Photo of Subject Property – dated 2/2/10


Photo of Subject Property – dated 5/4/10


Photo of Subject Property – dated 5/4/10


Photo of Subject Property – dated 7/7/10


Photo of Subject Property – dated 7/7/10


Photo of Subject Property – dated 7/7/10


Photo of Subject Property – dated 7/7/10


Photo of Subject Property – dated 7/7/10


Photo of Subject Property – dated 11/4/10


Photo of Subject Property – dated 11/4/10


Photo of Subject Property – dated 11/4/10


Written Direct Testimony of Paul Woodland


No objections were filed to Exhibits 1 through 12.They were received into the record.[7]

6.Agricultural Activity on Subject.The tillable portion of the subject land was planted to winter wheat in November 2008, October 2009 and seeded with clover and winter wheat in September, 2010.[8]No harvest was able to be made of a crop during 2008-09 due to the season being very wet, so the wheat was cut and turned back into the soil.[9]No harvest was made in 2009-10 due to the crop essentially being destroyed by equipment of the owner of Lot B which lies in the middle of Lots A and C.[10]No Harvest was able to be made of the 2010-11 crop as it was not successful enough to make harvesting worthwhile, it would benefit the soil to cut and turn the crop which is what was done.[11]

7.Subject Property Assessment.There being no harvest of a crop from the subject property, classification as agricultural land is not warranted.The property was properly assessed by the Assessor and the Board of Equalization.



The Commission has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious.The Commission 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.[12]

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.[13]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.[14]In an agricultural misclassification appeal, agricultural use must be determined based upon the evidence on the record that is probative on the issue of the agricultural use.

Presumption In Appeals

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[15]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 Commission, as trier of facts, receives the issue free of the presumption.[16]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.[17]Complainant failed to present substantial and persuasive evidence to establish an agricultural use which would support a classification of the property as agricultural.

Agricultural Land Classification

Agricultural real property is land used for agricultural purposes and devoted primarily to the raising and harvesting of crops.[18]

Complainant Fails To Prove Agricultural Use

In order to prevail, Complainant must present substantial and persuasive evidence of the agricultural use of the property on January 1, 2010.[19]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.”[20]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[21]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.[22]Complainant’s evidence met the required standard to meet its burden of proof.

The evidence established no harvest was made on the property under appeal in 2009 or 2010.Accordingly, the land having not been put to an agricultural use it must be valued and assessed as commercial property as was originally determined by the Assessor and sustained by the Board of Equalization.


The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization for St. Charles County for the subject tax day is AFFIRMED.

The assessed value for the subject property for tax year 2010 is set at $239,200.

Judicial Review

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.

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. Charles 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 February 29, 2012.





Bruce E. Davis, Chairman




Randy B. Holman, Commissioner





Certificate of Service


I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 29th day of February, 2012, to:John Bradford Goss, 190 Carondelet Plaza, Suite 600, St. Louis, MO 63105, Attorney for Complainant; Joseph Smith, Assistant County Counselor, 100 North Third Street, Room 216, St. Charles, MO 63301, Attorney for Respondent; Scott Shipman, Assessor, 201 North Second, Room 247, St. Charles, MO 63301-2870; Ruth Miller, Registrar, 201 North Second Street, Room 529, St. Charles, MO 63301; Michelle McBride, Collector, 201 North Second Street, Room 134, St. Charles, MO 63301.




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


573-751-1341 Fax




[1] Commercial property is assessed at 32% of its appraised value.Section 137.115.5 RSMo.


[2] BOE Decision Letter; Complaint for Review of Assessment


[3] TR 36:18 – 37:5


[4] Exhibits A, B, C, D, I, J, L – Q & A 13 & 14; TR 24:8 – 26:22


[5] TR 3:8 – 10


[6] TR. 3:11


[7] TR 30:21 – 31:16


[8] Exhibits A, B, C, F, G, H, I, J, K, L, M & N;TR 14:18 – 15:11; TR 21:1 – 11


[9] Exhibit L: Q & A: 21 & 22


[10] Exhibit A: Q & A 23


[11] Exhibit L: Q & A: 24 & 25


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


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


[14] Section 137.115.5, RSMo


[15] 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)


[16] 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.


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


[18] Section 137.016.1 (2) RSMo


[19] Hermel, supra.


[20] 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).


[21] See, Cupples-Hesse, supra.


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