Inland Western Town & Country v. Zimmerman (SLCO)

State Tax Commission of Missouri

INLAND WESTERN TOWN & COUNTRY,)

)

Complainant,)

)

v.) Appeal Nos.09-10357 & 09-10358

)

JAKE ZIMMERMAN, ASSESSOR,)

ST. LOUIS COUNTY, MISSOURI,)

)

Respondent.)

DECISION AND ORDER

HOLDING

Decisions of the St. Louis County Board of Equalization sustaining the assessments made by the Assessor are SET ASIDE.Complainant presented substantial and persuasive evidence to rebut the presumption of correct assessments by the Board of Equalization and establish the true value in money for the combined parcels as of January 1, 2009, to be $28,350,000.

True value in money for the subject property in Appeal 09-10357 for tax years 2009 and 2010 is set at $26,082,000, commercial assessed value of $8,346,240.

True value in money for the subject property in Appeal 09-10357 for tax years 2009 and 2010 is set at $2,268,000, commercial assessed value of $725,760.

Complainant appeared by Counsel, Richard D. Dvorak, Tomes & Dvorak, Overland Park, Kansas.

Respondent appeared by Associate County Counselor, Paula J. Lemerman.

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

ISSUE

Complainant appeals, on the ground of overvaluation, the decision of the St. Louis County Board of Equalization, which sustained the valuations of the properties under appeal.The Commission takes the appeals to determine the true value in money for the properties on January 1, 2009.The Hearing Officer, having considered all of the competent evidence upon the whole record and the briefs of the parties, enters the following Decision and Order.

FINDINGS OF FACT

1.Jurisdiction.Jurisdiction over the appeals is proper.Complainant timely appealed to the State Tax Commission from the decisions of the St. Louis County Board of Equalization.

2.Evidentiary Hearing.The Evidentiary Hearing was held on May 1, 2012, at the St. Louis County Government Center, 41 South Central Avenue, Clayton, Missouri.Transcript received by the Commission on June 15, 2012, and transmitted via email attachment to the respective Counsels.

3.Post-Hearing Briefs. Complainant filed its Brief.[1]By Bench Order issued 8/29/12 Respondent was given until and including October 24, 2012, to file Response, none was filed.[2]

4.Subject Properties.The subject property in appeal 09-10357 is identified by locator number 22P140064.It is located at 13861 Manchester Road, Town & Country, Missouri.The subject property in appeal 09-10358 is identified by locator number 22P140055.It is located at 13961, Manchester Road, Town & Country, Missouri.The properties are known as Manchester Meadows Shopping Center.[3]

5.Description of Properties.The two properties comprise a total area of 71.85 acres.[4]The land is improved with a six-building, multi-tenant retail strip center facility containing 452,960 square feet of total leasable area as of 1/1/09.A detailed description of the properties was provided in each appraisal.[5]

6.Single Economic Unit.The subject properties operate as a single economic unit and both appraisers appraised the two parcels as a single economic unit.The proper methodology for appraisal of the two properties is as a single economic unit.

7.Assessment.The Assessor appraised the property in appeal 09-10357 at $34,420,400, a commercial assessed value of $11,014,530. The Board sustained the assessment.[6] The Assessor appraised the property in appeal 09-10358 at $2,916,300, a commercial assessed value of $933,220.The Board sustained the assessment.[7]

8.Allocation of Value.Neither appraiser made an allocation of value between the two parcels.[8]The Assessor/BOE total appraised value of the subject properties was $37,336,700.The percentage allocated to the property in appeal 09-10357 was 92%.The percentage allocated to the property in appeal 09-10358 was 8%.The percentages of the total combined value to be determined in these appeals will be allocated 92% to the property in appeal 09-10357 and 8% to the property in appeal 09-10358.

9.Complainant’s Evidence.Complainant offered into evidence the following exhibits, which were received into evidence.

Mr. Smith testified at hearing.[10] Mr. Smith’s conclusion of value under the income approach was $28,350,000.His final conclusion of value was $28,350,000.[11]

There was no evidence of new construction and improvement from January 1, 2009, to January 1, 2010, therefore the assessed value for 2009 remains the assessed value for 2010.[12]

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, 2009, to be $28,350,000.See, Complainant Proves Value, infra.

10.Respondent’s Evidence.Respondent offered into evidence the following exhibits:

Exhibits 1, 2 and 4 were received into evidence.Exhibit 3 was stricken for lack of relevance.[14]Exhibit 5 was objected to.Objection was sustained.Exhibit 5 was excluded from the record.[15]Mr. Lincoln testified at hearing.[16]Mr. Lincoln’s conclusion of value under the income approach was $36,725,000.His final conclusion of value was $36,725,000.[17]

11.Appraisal Methodologies.There are three recognized methodologies for the appraisal of real property.These are cost, sales comparison and income.[18]See, Methods of Valuation, infra.Neither appraiser developed the cost approach.[19]Complainant’s appraiser developed both the sales comparison and income approaches.[20]Respondent’s appraiser likewise utilized these two approaches.[21]

12.Appraisal Conclusions.The following conclusions relative to the appraisal process for the present appeals are appropriate for arriving at a determination of the fair market value of the subject property.

A.Highest and Best Use As If Vacant:The highest and best use of the subject site as if vacant is to hold for future development with a retail building as warranted by demand, or land holding.[22]

B.Highest and Best Use As Improved:The highest and best use of the subject property as improved is as it is currently developed, i.e. its current use as a retail center.[23]

C.Cost Approach Not Appropriate:The subject’s age makes it difficult to accurately form an opinion of depreciation and tends to make this approach unreliable.Investors do not typically rely on this approach when purchasing a property such as the subject.[24]It is not a reliable approach to value because most buyers and sellers do not rely on this approach to value for older properties.[25]

D.Sales Comparison Approach Not Persuasive:Although both appraisers developed this approach, in the final analysis neither Mr. Smith, nor Mr. Lincoln, gave any weight to this approach.See, Methods of Valuation, infra.Furthermore, a review and analysis of each approach establishes that no probative weight should be accorded to either conclusion of value reached relying on this approach.See, Sales Comparison Approaches Not Persuasive, infra.

E.Income Approach Appropriate to Conclude Value:The income approach is often given primary reliance by market participants when evaluating investment properties such as the subject.[26]Properties such as the subject are purchased based upon the right to receive the future income stream of the property.[27]Typical owners of income-producing properties rely primarily on the income approach in making decisions to buy and sell.[28] The value conclusions by Complainant’s and Respondent’s appraisers were based on the income approach.See, Methods of Valuation, infra.

13.Income Approach Factors.The following factors are applicable to a conclusion of value under the income approach (See, Complainant’s Income Approach Persuasive, infra):

a.Potential Gross Income:The weighted average lease rate for the leases that existed for the subject as of 1/1/09 was $9.33 per square foot.[29] The market rental rate for the subject’s anchor tenant space was $7.00.The junior anchor tenant space’s market rental rate was $8.00.The in-line tenant rate was $20.00.This equates to a weighted average of $8.64 per square foot on a triple net basis.[30]The subject is leased on a triple net basis.Therefore, reimbursement income must be accounted for in arriving at PGI.The appropriate amount equates to .80 per square foot.[31]Miscellaneous income must also be added.The estimate of $3,000 or a .01 per square foot is appropriate.[32]The total potential gross income is $4,287,472 or $9.44 per square foot.[33]

b.Vacancy and Collection Loss:The subject was 91.4% occupied as of 1/1/09.It was reasonable for the hypothetical investor on 1/1/09 to assume an increase in vacancy given the impact of the Walmart departure.See, FINDING OF FACT 14, infra.Four tenants were under co-tenancy clauses which would be triggered if Walmart vacated the subject property.[34]See, FINDING OF FACT 15, infra.A significant amount of the subject’s rental space was under leases set to expire during 2009 and 2010.See, FINDING OF FACT 16, infra.A vacancy and collection loss of 15% is appropriate.[35]The amount of this deduction is $642,671, or a per square foot rental rate deduction of $1.42.[36]

c.Effective Gross Income:The calculated EGI is $3,644,801 or a per square foot rental factor of $8.03.[37]

d.Operating Expenses:The items of Common Area Maintenance, Management, Repairs and Maintenance, General and Administration, Utilities, Insurance and Replacement Reserves are all allowable expense items to be deducted from the EGI.The total of allowable expenses calculates to $845,022 or $1.86 per square foot.[38]

e.Net Operating Income:The Operating Expenses are subtracted from the EGI to calculate the NOI.The NOI is $2,799,779 or $6.17 per square foot.[39]

f.Income Capitalization:Direct Capitalization – dividing a single year’s net operating income by an appropriate overall capitalization rate[40] – is an appropriate methodology to convert the subject’s income stream to an indicate value.[41]

g.Overall Rate:An overall rate of 9.50% is appropriate for the subject property.[42]

h.Effective Tax Rate.The overall rate must be adjusted upward by the effective tax rate for the subject.The ETR is 2.49.[43]This rate is multiplied by the vacancy/collection loss rate to arrive at the ETR to be applied to the Overall Rate.This results in a factor of .37, for an adjusted overall rate of 9.87%.[44]

i.Concluded Value.Capitalizing the NOI of $2,799,779 by 9.87% results in an indicated value of $28,355,156, reconciled to the nearest $25,000 equals $28,350,000.[45]

14.Walmart Departure.As of January 1, 2009, a knowledgeable buyer would have known that Walmart would be vacating the subject property in 2009 due to the opening of a new location in Manchester Highlands, a retail shopping center approximately one mile west of the subject property.Walmart would continue to pay its base rent until April 2015.The Walmart space, although earning income, would be sitting vacant and would not be bringing traffic into the retail center.This would have a negative impact on the remaining tenants.This is a factor that the prudent investor would have considered in a risk evaluation for a purchase on 1/1/09.[46]

15.Co-Tenancy Tenants.Four tenants covering 30,443 square feet of leasable area had co-tenancy clauses in their lease agreements which would be triggered on the closing of Walmart.The potential effects could be termination of the existing leases, or reducing rent to percentage rent only.[47]The potential of further lease terminations would have also been a negative factor that the prudent investor would have considered in a risk evaluation for a purchase on 1/1/09.

16.Expiration of 2009 & 2010 Leases.A total of twelve tenants had leases which would expire in 2009 or 2010.These leases constituted a total of 19.29 percent of the total leasable area and 30.96 percent of the total annual income of occupied space as of 1/1/09, as detailed in the following table:

The expiration of leases would have been an important factor that the prudent investor would have considered in a risk evaluation for a purchase on 1/1/09.

17.Lincoln Value Conclusion.The conclusion of value by Respondent’s appraiser was based upon a significant overstatement of Potential Gross Income and an unsupported capitalization rate.Accordingly, it was not persuasive and could be accorded no probative weight.See, Respondent’s Appraisal Not Persuasive, infra.

18.Allocation of Value.The concluded value of $28,350,000 is allocated as follows:[49]The property in appeal 09-10357 is given a true value in money of $26,082,000, assessed commercial value of $8,346,240.The property in appeal 09-10358 is given a true value in money of $2,268,000, assessed commercial value of $725,760.

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.[50]

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.[51]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.[52]

Presumption In Appeals

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[53]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.[54]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.[55]The burden, of course, is discharged by simply establishing the fair market value of the property as of the valuation date, since once fair market value is established it, a fortiori,[56] proves that the Board’s value was in error.Upon presentation of the Complainants’ evidence[57] the presumption in these appeals disappeared.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 and 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.[58]True value in money is defined in terms of value in exchange and not value in use.[59]It is the fair market value of the subject property on the valuation date.[60]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.[61]

Both appraisers concluded value under the Standard For Valuation.[62]

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.[63]

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.[64]

The evaluation of the two income approaches results in all of the probative weight resting upon the appraisal presented by Complainant’s appraiser.As found above and will addressed in more detail below, the Lincoln conclusion of value was not persuasive.It presented no sound countervailing evidence to that presented on Complainant’s behalf.It relied on income and expense data that did not reflect the fiscal situation for the property as it existed on 1/1/09.It concluded value based on an unsupported capitalization rate.There was no basis upon which the Hearing Officer, in the exercise of sound logic, could simply reject the methodology developed and the conclusion of value reached by Mr. Smith.Nor was any evidence presented that would warrant the Hearing Officer making adjustments or alterations to the Smith income methodology.

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.[65] 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.[66]In performing their respective reconciliations, both appraisers considered, but did not ultimately place any weight on the sales comparison approach.

Mr. Smith concluded a value of $28,150,000 under the sales comparison approach and a value of $28,350,000 under the income approach.His reconciliation concluded his final opinion as $28,350,000, therefore, a fortiori[67] it follows that in the final analysis the appraiser placed all the weight of his professional opinion on his income approach.

Likewise, Mr. Lincoln, utilizing his sales comparison approach arrived at an indicated value of $41,999,000.The income approach concluded a value of $36,725,000.The final reconciled value was $36,725,000.Therefore, Respondent’s appraiser’s profession judgment was that the income approach was the appropriate methodology to be relied on in this instance.

Conclusion

While appraisers may develop both the sales comparison and income approaches, ultimately, when the concluded value is the same as the value for one approach, the only logical conclusion that can be reached is that all weight is given to that approach by the expert.Accordingly in the present case, the Hearing Officer is in concurrence with the judgment of each appraiser that the income approach is the appropriate methodology to be utilized to arrive at a determination of value in these appeals.

Sales Comparison Approaches Not Persuasive

Each appraiser, in keeping with what is generally accepted and instructed appraisal practice developed the sales comparison approach.Both approaches were developed along the same generally recognized guidelines and standards.Sales of properties the appraiser judges to be comparable are first selected to carry out this methodology.The selected sales must then be adjusted for various factors to account for the differences between each sale property and the subject.An indicated value on a per square foot basis is then concluded to be applied to the subjects net rentable area.

Mr. Smith identified three sale properties he deemed to be comparable.Mr. Lincoln used four sales as comparables.Both appraisers then made percentage adjustments to the per square foot purchase price for various factors of difference between the properties.The adjustments were made to physical characteristics for the properties.This is consistent with what is done when the sales comparison approach is to be developed.

The critical weakness in the approaches presented by both appraisers is the lack of demonstrable market data to substantiate and justify individual adjustments.For example, Mr. Smith provides a narrative discussion for each of his adjustments.However, there is no reference to specific information taken from the market that underwrites the adjustments.

To illustrate, for the market conditions adjustment the rational given is “All sales occurred prior to the financial crisis that occurred in the fall of 2008, As such, a downward market adjustment was applied to all sales.”[68]However, there is no analysis of sales of properties such as the subject before and after the fall of 2008 from which a percentage adjustment grounded in actual market data could be extrapolated.Likewise, for the Location adjustment two sales were considered to be superior due to their location and exposure near interstate exchanges and therefore a downward adjustment of 20% was applied.Where the 20% came from is not presented in the appraisal for the edification of the Hearing Officer.

Mr. Lincoln in similar fashion addressed adjustments in a narrative fashion, without the benefit of revealing the market data that lay behind each adjustment.The appraisal notes, “While these adjustments are based on recognized appraisal and economic theory, they may only reflect a qualitative adjustment and have not been necessarily been measured from the marketplace, which reflects quantitative adjustments.”[69]It is not just that the adjustments “have not necessarily been measured from the marketplace,” they simply have not been so measured.Emphasis added.Which is the critical point.

In the final analysis, both Mr. Smith and Mr. Lincoln made adjustments under their sales comparison approaches that for appraisal purposes are based on “recognized appraisal theory.”That does not negate the simple fact that irrespective of the theory, the market data to establish a foundation upon which the theory can be applied do not exist in either appraisal.

It has been observed, “The sales comparison approach often provides highly supportable value estimates for homogenous properties such a vacant land and single-family homes when the adjustments are few and relatively simple to compute.For larger, more complex properties such as office buildings, shopping centers, and hotels, the required adjustments are often numerous and difficult to estimate.”[70]There is inherent in this methodology when being applied to large commercial rental properties significant weaknesses.[71]Based upon the two sales comparison methodologies present in this record, the Hearing Officer can only conclude that the required adjustments are not just “difficult” to estimate, but impossible since there exists no underlying market data to support the various adjustments.One percentage adjustment is just as good as another, in the absence of data to support either.Accordingly, neither sales comparison approach was found to be persuasive.

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.[72]

The data relied upon by Complainant’s appraiser were of the type reasonably relied upon by experts in the appraisal of a commercial property such as the subject.Said data were otherwise reliable.

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.[73]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.”[74]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.

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[75]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.[76]

Complainant’s opinion of value rests upon the appraisal report of Mr. Smith.The standard of substantial and persuasive evidence has been met in this appeal.

Complainant’s Income Approach Persuasive

The conclusion of value given by Mr. Smith was derived from his analysis relying upon the development of the income approach.The individual elements which comprised the utilization of the income methodology that Mr. Smith established were appropriate for the present appraisal problem.See, FINDING OF FACT 13, supra.

Critical Factors

The appraiser’s valuation recognized several critical factors which would have had direct impact upon the price any well informed prospective investor would have tendered to purchase the subject on 1/1/09.The factors included the subject’s existing vacancy, the vacating of space by Walmart, potential exercising of co-tenancy clauses, and the termination of leases during 2009 and 2010.

Existing Vacancy

As of 1/1/09, the subject had a total of 38,817 square feet of leasable area vacant.This represented 8.55% of the total space.There was no evidence to support a finding that this space would be leased up any time soon after the first of January.The hypothetical purchaser would have understood that his investment in this particular income stream would begin operation at less than 92% of its potential.

Walmart Departure

Another critical factor was that during 2009 Walmart would depart the subject property to be relocated in a new larger store approximately a mile away.While the potential investor would still be receiving the stream of income from the vacated Walmart space, what the investor and the remaining tenants would not be enjoying would be the customer stream that the existence of an occupied Walmart space would produce.This reduction in shopper traffic to the subject property would have a negative impact on all other remaining tenants and their businesses.[77]Accordingly, while the investor purchasing the property on 1/1/09 would have known that the Walmart rent would be a part of the income stream for the next 6 years,[78] it would also have been understood that there effectively would be an additional 154,717 square feet or 34% of the total subject sitting vacant by mid-2009.In other words, the income from the anchor tenant would continue, but the item which would create the significant risk would be the loss of shopper traffic.This would have a direct impact on the rental rates which the investor could hope to achieve for tenants that would come up for renewal in 2009 and future years.

Co-Tenancy Clauses

Four tenants comprising another 30,443 square feet (6.7%) of the subject, as of 1/1/09 had co-tenancy clauses in their leases which upon Walmart closing down its store would be triggered.The possible effects, depending on whether a tenant exercised its rights under the triggered clauses, could range from termination of leases to a significant reduction in rent received.[79] This is a factor of risk which the prudent investor would certainly consider and account for in the necessary analysis to arrive at a purchase price.This risk would be reflected in the cap rate needed to justify the cost to purchase the subject.[80]There was no evidence presented upon which it could be concluded that the prospective purchaser on 1/1/09 would have actually known which, if any, of the four tenants would or would not exercise their rights under the co-tenancy clauses.Accordingly, this factor existed as a significant risk factor to any prospective purchaser on 1/1/09.

Lease Terminations – 2009 & 2010

A very significant amount of the subject’s income stream would come up for lease renewals in 2009 and 2010.This like the aforementioned critical factors would have certainly been considered by prospective purchasers on 1/1/09.Within six months of a January 2009 purchase, the new owner would have been looking at hopefully signing up existing tenants to new leases.However, those leases were going to be based upon rates less than what the subject had enjoyed prior to 2009.[81]Within the next 18 months the new hypothetical owner was facing additional leases that were going to have to be renewed or new tenants found.In either instance, the evidence supports the conclusion of Mr. Smith that rental rates would be lower than the historic performance of the subject.

Summary

Any potential purchaser of the subject on 1/1/09 was faced with the following:

(1) coming to the end of 2009 with the Walmart space vacant;

(2) an additional 30,443 square feet of co-tenancy space potentially vacant or rent reduced;

(3)$416,485 of income stream reduced by an unknown amount due to

renegotiation of leases due to end in 2009 or loss of tenants; and

(4) an additional $782,744 in rent to be reduced by an unknown amount because of renegotiation of leases due to end in 2010 or loss of tenants.

Each of these factors present important information that the well-informed purchaser would take into account in the process of concluding what the subject property was worth on 1/1/09.All of these circumstances would have been reflected in the purchase price.

Capitalization Rate

The element within the development of Appraiser Smith’s income approach of to account for these critical risk issues was the capitalization rate.The appraiser did not overload the vacancy and collection factor to address the potential loss of income.This would not have been the appropriate means to address the above referenced critical factors.Instead, the capitalization rate was the tool appropriately utilized to account for the fact that there were significant risk factors present for any purchaser on 1/1/09.[82]Mr. Smith’s conclusion as to an appropriate capitalization rate to reflect the risk presented by the subject was warranted based on the foundation laid in his appraisal and testimony.

Conclusion

The Smith appraisal concluded value under the most appropriate methodology for this valuation problem.The income approach rested upon sound market data and analysis.The most probable price the subject would have commanded on 1/1/09 would have been $28,350,000, as concluded by Complainant’s appraiser. See, FINDING OF FACT 13, supra.

Respondent’s Appraisal Not Persuasive

Standard of Proof

Respondent is not required to present evidence in an appeal before the Commission, since he can always elect to simply rest upon the presumption of correct assessment by the Board.Of course, in those cases such as this when the taxpayer presents substantial and persuasive evidence that prima facie rebuts the presumption, the Assessor is then faced with the prospect of presenting evidence to either reestablish the correctness of the Board value or establish another value, or losing the case by default if no evidence has been presented.When the Assessor does elect to come forward with appraisal evidence, then the same burden of proof is triggered.

That is, Respondent’s evidence must satisfy the standard of substantial and persuasive in order to prevail and establish in the mind of the trier of fact that the concluded value should be given more probative weight than the weight which has already been placed on Complainant’s side of the scale.In this instance, for the reasons which will be addressed, Respondent’s appraisal does not constitute substantial and persuasive evidence to establish the value presented.Accordingly, it does not tip the scales to the Respondent.

The lack of persuasiveness present in the Lincoln appraisal rests upon two controlling factors.The two factors are an overstatement of Potential Gross Income (PGI) and an unsupported capitalization rate.

Overstatement – Potential Gross Income

The first flaw in the Lincoln income methodology is that the PGI was overstated in a significant manner.[83]Mr. Lincoln’s PGI was comprised of “Two Year Average Rents and CAM as of 01/01/09 and Vacant Space as of 1/1/09 38,817 sq. ft @ $18.”[84]This resulted in a PGI of $5,400,381.[85]In many cases, utilization of the most recent 2 or 3 years of actual income and expense data for a given property will yield a sound basis for construction of the income approach.However, an appraiser must always be cognizant of the existing leases and their termination dates as of the valuation date.In those circumstances when the existing lease or leases are under terms continuing for some years into the future, then utilization of a stabilized income based on the terms of those leases is generally a sound practice.In those instances when the existing lease/leases are under rates that are going to be coming up in the very near future for termination or renegotiation, it is imperative that the appraiser to do sufficient research to ascertain the reasonableness of whether existing rates provide the appropriate basis for the income approach.The present appraisal problem was one of those in which reliance on the 2007 and 2008 income average was misplaced and inappropriate.

No doubt a purchaser on 1/1/09 would have reviewed the subject’s past income and expense performance.However, the critical factors previously addressed would have also been considered and analyzed.The Lincoln appraisal turned a blind eye to those factors when concluding the PGI.As has previously been noted, the subject’s income stream was going to continue to receive the base rent ($1,083,019) from the Walmart space until 4/25/15.However, the very real potential existed that $378,920 in annual revenue of the four co-tenancy lease tenants could be impacted in mid-2009 by Walmart vacating its space.Relying on the two year average for 2007 and 2008 did not address this factor.

Additionally, the utilization of the average of two prior years’ income ignored the fact that in the first year of ownership, the 1/1/09 purchaser would be faced with at best a renegotiation of leases involving $390,280 of the annual income stream and at worst, the lost of those tenants.[86]The fact that the Walmart space would no longer be attracting shoppers would impact the new rental rates that the buyer could hope to obtain, notwithstanding what existing rates for similar space was as of 1/1/09.Given that during the first two years after the hypothetical purchase date of 1/1/09, just under 20% of the subject space, representing over $1,199,000 in annual rental income would be come up for renegotiation of leases (See, FINDING OF FACT 16, supra), it was imperative for Respondent’s appraiser to analyze market rates existing applicable to 2009, and not simply rely on rates established, in many instances in the 1990’s, and which would only be applicable for a significant portion of the property for less than two years.The aforementioned problems were not corrected by Mr. Lincoln’s recalculations and tendering of Exhibit 5.

Unsupported Capitalization Rate

The second factor which renders the Lincoln conclusion of value non-persuasive was the basis for the capitalization rate relied upon to arrive at the conclusion of value.Mr. Lincoln elected to develop a capitalization rate relying on the band-of-investment technique with a credit for equity buildup.The problem, as to the persuasiveness of this methodology, lies not with the technique itself, but with the underlying assumptions alleged to support it.

The appraiser based the development of his capitalization rate on a .70 loan-to-value ratio at 6.5% for 20 years.The .30 equity portion was deemed to have a 10% return.Mr. Lincoln then concluded a ten year holding period which would result in 34% of the loan having been paid off to account for his calculation of the equity buildup credit.[87]According to Exhibit1, p. 47, “To develop the mortgage-equity capitalization rate, several local lenders were surveyed to determine the typical loan terms available.”

Respondent’s evidence failed to establish that in point of fact the hypothetical purchaser of the subject property would most likely finance the purchase of the property under the terms utilized in the band-of-investment technique.Mr. Lincoln did not investigate any the four sales presented in his sales comparison approach with regard to the loan terms on those sales.[88]The information on these sales did not have any data relative to capitalization rates for the individual properties.[89]Mr. Lincoln did not personally talk to any lenders to ascertain that the loan terms which he characterized as “typical” would in fact reasonably be expected to represent financing for a purchase of the subject as of 1/1/09.[90]There was no investigation to establish that in point of fact a 10 year holding period would in fact be applicable to the subject property, it was simply based on what was thought to be typical.[91]

There was no foundation for the underlying factors that went into the band-of-investment.An unidentified Assessor’s survey, that fails to establish the time frame when it was conducted, the person or persons who conducted it, the reason for it being conducted, and identification of the lenders surveyed and their responses does not qualify as the type of data that would reasonably be relied upon by appraisers when appraising a property such as the subject, nor is it deemed to be otherwise reliable.[92]Likewise, there is nothing to establish the basis for the return on equity, other than the appraiser’s unsubstantiated opinion.Finally, the appraiser made no allowance in his cap rate to account for the significant risk factors applicable to the bject as of 1/1/09.Accordingly, the concluded rate of 7.7% is without any basis in fact and can be accorded no probative weight.[93]

Conclusion

The conclusion of value based upon the income approach presented by Mr. Lincoln lacks fundamental persuasive merit.The critical factors of Potential Gross Income and the Capitalization Rate are not supported by substantial evidence.The concluded net operating income is suspect.The rate at which it was capitalized was not demonstrated to be appropriate for the subject property and the potential risks which any prospective purchaser would have taken into consideration.Accordingly, the conclusion of value cannot be given any probative weight.

ORDER

The assessed valuations for the subject properties as determined by the Assessor and sustained by the Board of Equalization for St. Louis County for the subject tax day are SET ASIDE.

The assessed value for the subject property in appeal 09-10357 for tax years 2009 and 2010 is set at $8,346,240.

The assessed value for the subject property in appeal 09-10358 for tax years 2009 and 2010 is set at $725,760.

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. [94]

Disputed Taxes

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 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 January 10, 2013.

STATE TAX COMMISSION OFMISSOURI

_____________________________________

W. B. Tichenor

Senior Hearing Officer

Certificate of Service

I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 10^th day of January, 2013, to:Richard Dvorak, 7111 W. 98^th Terrace, Suite 140, Overland Park, KS 66212, Attorney for Complainant; Paula Lemerman, Associate County Counselor, Attorney for Respondent, County Government Center, 41 South Central Avenue, Clayton, MO 63105; Jake Zimmerman, Assessor, County Government Center, 41 South Central Avenue, Clayton, MO 63105; Eugene Leung, Director of Revenue, County Government Center, 41 South Central Avenue, Clayton, MO 63105.

___________________________

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

573-751-2414

573-751-1341 Fax