State Tax Commission of Missouri
HOMER & HALENE DILLARD,)
v.)Appeal Number 09-10140
ST. LOUIS COUNTY, MISSOURI,)
AFFIRMING HEARING OFFICER DECISION
UPON APPLICATION FOR REVIEW
On July 2, 2010, Senior Hearing Officer W. B. Tichenor entered his Decision and Order (Decision) setting aside the assessment by the St. Louis County Board of Equalization.
Complainants timely filed their Application for Review.
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.
The Hearing Officer as the trier of fact may consider the testimony of an expert or lay 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 opinion of an expert or the owner who testify on the issue of reasonable value, but may believe all or none of the expert’s or owner’s testimony and accept it in part or reject it in part.
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.
Complainants’ Application for Review is simply a re-argument of the matters addressed in Exhibit A received into evidence at the evidentiary hearing.The record establishes that Complainants failed to present any market data to establish their opinion of value.The Hearing Officer addressed this failure in detail in his Decision.There is no benefit to further burdening the record reiterating the points discussed at length by the Hearing Officer.Complainants reliance on the Case-Shiller home price data provides no support for their opinion of value.Such hearsay data having not been correlated to the subject property’s market area has no relevance.It is not probative of the value of the property under appeal.The Hearing Officer properly so concluded.
The remainder of Complainants’ Application for Review challenges the appraisal report of Respondent based upon their three lines of arguments concerning radon gas, soil erosion and noise levels.The Hearing Officer was persuaded that the appraisal of Mr. Smith had adequately covered the various condition issues of the subject in relation to the comparable properties used. The evidence on the record from Complainants failed to establish the economic impact of such factors.There is no basis to conclude the Hearing Officer erred in this regard.See, Standard Upon Review, supra.
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 his discretion as the trier of fact and concluder of law in this appeal.The Hearing Officer did not err in his determinations.
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 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 September 7, 2010.
STATE TAX COMMISSION OF MISSOURI
Bruce E. Davis, Chairman
Jeff W. Schaeperkoetter, Commissioner
DECISION AND ORDER
Decision of the St. Louis County Board of Equalization reducing the assessment made by the Assessor is SET ASIDE.True value in money for the subject property for tax years 2009 and 2010 is set at $204,600, residential assessed value of $38,870.Complainants appeared pro se.Respondent appeared by Associate County Counselor Paula J. Lemerman.
Case heard and decided by Senior Hearing Officer W. B. Tichenor.
Complainant appeals, on the ground of overvaluation, the decision of the St. Louis County Board of Equalization, which reduced 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, 2009.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.Complainants timely appealed to the State Tax Commission from the decision of the St. Louis County Board of Equalization.Evidentiary hearing was held on June 21, 2010, at theSt. LouisCountyGovernmentCenter,Clayton,Missouri.
2.Assessment.The Assessor appraised the property at $204,600, residential assessment of $38,870.The Board of Equalization reduced the value to $170,000, residential assessment of $32,300.
3.Subject Property.The subject property is located at 11987 Brookington Dr., Bridgeton, Missouri.The property is identified by parcel number 12N440325.The property consists of a 12,199 square foot lot improved by a one-story brick, ranch, single-family structure.The house was built in 1988 and is in fair condition.The residence has a total of seven rooms, with four bedrooms, two baths, and contains 2,344 square feet of living area.There is a full basement and an attached two-car garage.
The property was found to have high levels of radon and a system to mitigate the impact of the radon has been installed in the subject home.The property suffers from some degree of soil erosion which has caused some settling resulting in cracks in portions of the home.The property is located near to Interstate 70 and results in noise impacting the Complainant’s property.
4.Complainant’s Evidence.Mr. Dillard stated the owner’s opinion of fair market value to be $115,600.This was based on the 2007 appraised value by the Board of Equalization.A deduction of 32% or $54,400 was made to the 2007 appraised value based upon Mr. Dillard’s understanding that home prices had declined from their 2007 values by 32%.Complainant’s evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2009, to be $115,600, as proposed.Mr. Dillard testified that a porch had been added to an existing deck in 2009.However, the evidence was insufficient to establish that a change in value from 2009 to 2010 was warranted due to this addition.Therefore, the assessed value for 2009 will remain as the assessed value for 2010.
Complainant’s offered into evidence Exhibit 1.The Exhibit was received into evidence over the hearsay objection of Respondent’s Counsel.Notwithstanding the document is replete with hearsay, it contains in addition to other material (much of which lacks relevance for the 2009 valuation of the property) a detailed discussion of certain factors which Complainants assert have a negative impact upon the value of the property – radon gas, soil erosion and high noise levels.The exhibit was received in order that this detailed narrative developed by Mr. Dillard would provide the taxpayer’s argument with regard to these factors.
5.Respondent’s Evidence.Respondent presented the appraisal report and testimony of Dale Smith, Missouri Certified Residential Real Estate Appraiser.Mr. Smith concluded a fair market value of the property of $205,000 based upon the sales comparison approach.The properties relied upon by Respondent’s appraiser were comparable to the subject property for the purpose of making a determination of value of the subject property. The three properties were located within less than a half mile of the subject.Each sale property sold at a time relevant to the tax date of January 1, 2009.The sale properties were similar to the subject in style, quality of construction, age, condition, room, bedroom and bathroom count, living area, location, site size and other amenities of comparability.Appropriate adjustments were made to account for differences between each sale property and the subject.The sale properties were all in an approximate distance from Interstate 70 as the subject and thus suffered from the resulting noise level. Mr. Smith recognized that the subject home was in only fair condition due to cracks in the living and dining room ceilings, water leaks, mold, cause from soil erosion, and the presence of radon gas in the basement.
The appraisal report of Mr. Smith and his testimony in explanation and support thereof meet the standard of clear, convincing and cogent evidence in this appeal to sustain the original valuation of $204,600.
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.
Presumptions In Appeals
The presumption in favor of the Board is not evidence.A presumption simply accepts something as true without any substantial proof to the contrary.In an evidentiary hearing before the Commission, the valuation determined by the Board, is accepted as true only until and so long as there is no substantial evidence to the contrary.
The presumption of correct assessment is rebutted when the taxpayer, or respondent when advocating a value different than that determined by the Board, 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.Complainants failed to present substantial and persuasive evidence to rebut the presumption of correct assessment and establish the fair market value of the property.Respondent’s evidence was substantial and persuasive to rebut the presumption of correct assessment and clear and convincing to affirm the original value set by the Assessor.
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.It is the fair market value of the subject property on the valuation date.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.
Respondent’s appraiser valued the subject property under the Standard for Valuation.Mr. Dillard’s opinion of value based on an arbitrary deduction from the 2007 appraised value set by the Board of Equalization did not value the property under the Standard for Valuation.
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.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.Complainants failed to present an opinion of value derived from any recognized approach to valuation of property for ad valorem tax purposes.Respondent’s appraiser developed the comparable sales approach to conclude the fair market value of the subject.The sales comparison approach is generally recognized as the most reliable approach to be used when valuing owner occupied residential property, if sufficient sales data exists.There was sufficient sales data for theproperty under appeal to be valued utilizing the sales comparison approach.
Complainants Fail To Prove Value
In order to prevail, Complainants 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.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.”
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.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.
Owner’s Opinion of Value
The owner of property is generally held competent to testify to its reasonable market value.The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.The owner’s opinion of value was based upon a simple formula which he developed.That formula was: the old assessed value x. .68 = the new assessed value.
The formula is fatally flawed as a method to arrive at the true value in money of the property on January 1, 2009.It is not a methodology that has been recognized by the Courts of this state or the Commission for the valuation of property in appeals before the Commission.Therefore, as a matter of law, the Hearing Officer cannot base a finding of value on an opinion derived from such a methodology.The formula assumes that the subject property had declined in value by 32% from January 1, 2007, to January 1, 2009.There is no evidence to support such a claim.Therefore, as a matter of fact, the Hearing Officer cannot conclude a value based upon an assertion that is not support by any fact in the record.
Part of the hearsay contained in Exhibit A, which the Hearing Officer gives no probative weight to, was that the bursting of the housing bubble “forced a nationwide collapse in home prices of 32%.”Where or how Mr. Dillard arrived at this conclusion is not demonstrated in the evidence.The claimed 32% reduction in home prices appears out of clean air.There is no evidence upon which it can be concluded that every home inSt. LouisCounty, every home inMissouriand every home in theUnited Stateslost 32% of its value during 2008.Yet, that is what the assertion supporting Mr. Dillard’s opinion of value would require the Hearing Officer to conclude.
There is no evidence that homes in the subject neighborhood declined in value by any percentage from 2007 to 2009.Over the course of the past year a great number of taxpayers have sought to base their claim of overvaluation on the generic assertion that home prices have fallen.The problem is that such a generalization does not prove the fair market value of a single property on January 1, 2009.In like manner, Mr. Dillard’s reliance on a newspaper article that the median home price in St. Louis for the first quarter of 2010 was $116,100 to support his opinion of value is misplaced and of no probative weight.In the first instance, the property is not being valued as of 2010.It must be valued under the economic conditions existing on January 1, 2009.Mr. Dillard presented no evidence to establish what those economic conditions might be as they would relate to sales of properties comparable to the subject.
The median price is the middle price for all homes sold during January – March, 2010.It simply has no relevance to what a 21 year old, 2,344 square foot brick home in the subject subdivision would have sold for on January 1, 2009.The claim of a value for the subject of only $115,600 derived from a 32% deduction for the 2007 BOE appraised value finds no support from actual sales data of homes having sold in a time period from a year prior to the valuation date to four months after the valuation date.Those homes were selling in a per square foot value range from $111.42 to $129.83.However, under Mr. Dillard’s formula, the subject would have only sold for less than $50 per square foot.There is no sales data to support such a claim.
The owner’s opinion of value is based totally on an improper and faulty premise.It does not rest upon proper elements or a proper foundation.Therefore, it has no probative value in the appeal.Since there was no correlation to value presented based upon market data as to the impact of the existence of radon gas with the mitigation system, there is no basis upon which the Hearing Officer can find value relying on this factor.In like manner, no evidence to quantify the damage to the home from the erosion and water damage was presented.Respondent’s appraiser recognized the water damage in a significant way by giving no contributory value to the subject’s basement.
A taxpayer does not meet his burden if evidence on any essential element of his case leaves the Commission “in the nebulous twilight of speculation, conjecture and surmise.”The owner’s opinion of value rests on a formula that is constructed of speculation, conjecture and surmise.Accordingly, the conclusion of value of $115,600 is rejected as being the true value in money of the property on January 1, 2009.
Evidence of Increase in Value
In any case in St. Louis County where the assessor presents evidence which indicates a valuation higher than the value finally determined by the assessor or the value determined by the board of equalization, whichever is higher, for that assessment period, such evidence will only be received for the purpose of sustaining the assessor’s or board’s valuation, and not for increasing the valuation of the property under appeal above the higher of the two values.The evidence presented by the Respondent was substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the fair market value of the property under appeal, as of January 1, 2009, to be $205,000.However, under the Commission rule just cited and Supreme Court decision the assessed value cannot be increased above $38,870 in this particular appeal.
Respondent Proves Value
The Respondent has imposed upon him by the provisions of Section 137.115.1, RSMo, the burden of proof to present clear, convincing and cogent evidence to sustain a valuation on residential property which is made by a computer, computer-assisted method or a computer program.There is a presumption in this appeal that the original valuation, which was sustained by the Board of Equalization, was made by a computer, computer-assisted method or a computer program.There was no evidence to rebut the presumption, therefore, in order to sustain the valuation of the subject property at $204,600, appraised value, Respondent’s evidence must come within the guidelines established by the legislature and must clearly and convincingly persuade the Hearing Officer as to the value sought to be sustained.
The statutory guidelines for evidence to meet the standard of clear, convincing and cogent include the following:
(1)The findings of the assessor based on an appraisal of the property by generally accepted appraisal techniques; and
(2) The purchase prices from sales of at least three comparable properties and the address or location thereof.As used in this paragraph, the word comparable means that:
(a)Such sale was closed at a date relevant to the property valuation; and
(b) Such properties are not more than one mile from the site of the disputed property, except where no similar properties exist within one mile of the disputed property, the nearest comparable property shall be used.Such property shall be within five hundred square feet in size of the disputed property, and resemble the disputed property in age, floor plan, number of rooms, and other relevant characteristics.
Clear, cogent and convincing evidence is that evidence which clearly convinces the trier of fact of the affirmative proposition to be proved.It does not mean that there may not be contrary evidence.The quality of proof, to be clear and convincing must be more than a mere preponderance but does not require beyond a reasonable doubt.“For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder’s mind is left with an abiding conviction that the evidence is true.”The appraisal performed by Mr. Smith constitutes clear, cogent and convincing evidence that the true value of the property under appeal as of January 1, 2009, was $204,600 as set by the Assessor.Accordingly, the assessment of $38,870 based on the value of $204,600 must be affirmed by the Hearing Officer.
The assessed valuation for the subject property as determined by the Board of Equalization forSt. LouisCountyfor the subject tax day is SET ASIDE.
The assessed value for the subject property for tax years 2009 and 2010 is set at $38,870.
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 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.
The Collector of St. Louis County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending a 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 July 2, 2010.
STATE TAX COMMISSION OFMISSOURI
W. B. Tichenor
Senior Hearing Officer
 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).
 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).
 Black v. Lombardi, 970 S.W.2d 378 (Mo. App. E.D. 1998); Lowe v. Lombardi, 957 S.W.2d 808 (Mo. App. W.D. 1997); Forms World, Inc. v. Labor and Industrial Relations Com’n, 935 S.W.2d 680 (Mo. App. W.D. 1996); Evangelical Retirement Homes v. STC, 669 S.W.2d 548 (Mo. 1984); Pulitzer Pub. Co. v. Labor and Indus. Relations Commission, 596 S.W.2d 413 (Mo. 1980); St. Louis County v. STC, 562 S.W.2d 334 (Mo. 1978); St. Louis County v. STC, 406 S.W.2d 644 (Mo. 1966).
 Hermel, Inc. v. STC, 564 S.W.2d 888 (Mo. 1978); Black v. Lombardi, 970 S.W.2d 378 (Mo. App. E.D. 1998); Holt v. Clarke, 965 S.W.2d 241 (Mo. App. W.D. 1998); Smith v. Morton, 890 S.W.2d 403 (Mo. App. E.D. 1995); Phelps v. Metropolitan St. Louis Sewer Dist., 598 S.W.2d 163 (Mo. App. E.D. 1980).
 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).
 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.
 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).
 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).
 Cohen v. Bushmeyer, 251 S.W.3d 345, (Mo. App. E.D., March 25, 2008); Carmel Energy, Inc. v. Fritter, 827 S.W.2d 780, 783 (Mo. App. W.D. 1992); State, ex rel. Missouri Hwy & Transp. Com’n v. Pracht, 801 S.W.2d 90, 94 (Mo. App. E.D. 1990); Shelby County R-4 School District v. Hermann, 392 S.W.2d 609, 613 (Sup. 1965).
 Exhibit A, page 2.Although Mr. Dillard referenced “assessed value” he was actually referring to the appraised value.Assessed value for residential property is 19% of the properties true value in money or fair market value.
“Section 138.060 prohibits an assessor from advocating for or presenting evidence advocating for a higher ‘valuation’ than the ‘value’ finally determined by the assessor. … . Because the legislature uses the singular terms ‘valuation’ and ‘value’ in the statute, however, it clearly was not referring to both true market value and assessed value.While the assessor establishes both true market value and assessed value, which are necessary components of a taxpayer’s assessment, as noted previously, the assessed value is the figure that is multiplied against the actual tax rate to determine the amount of tax a property owner is required to pay.The assessed value is the ‘value that is finally determined’ by the assessor for the assessment period and is the value that limits the assessor’s advocacy and evidence.Section 138.060.By restricting the assessor from advocating for a higher assessed valuation than that finally determined by the assessor for the relevant assessment period, the legislature prevents an assessor from putting a taxpayer at risk of being penalized with a higher assessment for challenging an assessor’s prior determination of the value of the taxpayer’s property.”State ex rel. Ashby Road Partners, LLC et al v. STC and Muehlheausler, 297 SW3d 80, 87-88 (Mo 8/4/09)
 The $400 difference in the valued shown by Exhibit 1 and the Assessor’s original valuation is de minimus, constituting only a .00195 percentage variance above the value of $204,600.The difference in assessed value amounts to only $80.