J. Bernard & Dora Kolker v. Zimmerman (SLCO)

August 15th, 2012

State Tax Commission of Missouri






v.                                                                            ) Appeal No.11-10002











Assessment by Assessor is AFFIRMED.True value in money for the subject property for tax year 2011 is set at $7,080, personal property assessed value of $2,360.

Complainants appeared pro se.

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

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


Complainants appeal, on the ground of overvaluation, the assessment of their 2002 BMW motor vehicle.The Commission takes this appeal to determine the true value in money for the subject motor vehicle on January 1, 2011.The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.


1.Jurisdiction.Jurisdiction over this appeal is proper.Complainants did not perfect an appeal to the Board of Equalization.[1]Respondent did not move to dismiss on this ground and agreed to the Commission rendering decision based upon the record established at the evidentiary hearing.[2]A hearing was conducted on July 19, 2012, at the St. Louis County Government Center, Clayton, Missouri.

2.Subject Property.The subject property is a 2002 BMW – 3 Series Sedan 4-Door 330XI AWD – VIN WBAEW53402PG16548.[3]

3.Assessment.The Assessor valued the property at $7,080, a personal property assessed value of $2,360.[4]

4.Complainant’s Evidence.Complainants offered Exhibit A – Valuation Data, which was received into evidence.Mr. Kolker testified as to his opinion of value and gave his basis for that value to be a Proposed Trace Allowance for the car on 4/11/11 by Lexus of St. Louis.

Exhibit A consisted of the following documents:

(1)Letter of Complainants setting forth information on their appeal;


(2)copy of pages 20, 21, 60 & 61 of the October 2011 NADA Official Used Car Guide – 2004 through 2011 Passenger Cars & Light-Duty Trucks;


(3)Copy of Recall Service on tail light recall repair by Autohaus BMW on 2/3/12; (4) Copy of PP4 Supplemental: Individual Personal Property Appeal Form – St. Louis County Board of Equalization – completed and signed by Mr. Kolker;


(4)Copy of Proposed Purchase of 2011 Lexus IS250 from Lexus of St. Louis, dated 4/11/11, with the subject automobile as a trade in with a trade allowance of $3,000; and


(5)Copy of Repair Bill (Arvin Auto Service), dtd 1/13/12 on the subject vehicle, showing mileage to be 131,572.


Complainants’ evidence was not substantial and persuasive to establish the true value in money as of January 1, 2011, to be $3,000, as proposed.See, Complainants Fail to Prove Value, infra.

5.Respondent’s Evidence.Respondent offered the following exhibits, which were received into evidence.

Exhibit 1 consisting of Letter dated 11/4/11 to Complainant from Respondent’s Counsel, with:

(1)copies of the cover and page 12 of the NADA Official Older Used Car Guide for September through December 2010;


(2)a copy of Section 137.115.9 RSMo; and


(3)a copy of the June 6, 2011, letter to Complainant from Linda Edison, Property Tax Analyst Supervisor for St. Louis County Assessor, reducing the assessed value on the subject vehicle to reflect its high mileage.


Exhibit 2 consisting of a copy of the Vehicle Trade Value Summary Report for the subject vehicle from the NADA Used Car Guide – October 2010 showing Average Trade-In of $7,600, with a mileage deduction of $525 resulting in an adjusted value of $7,075, for an assessed value of $2,360.The notation high mileage is handwritten and highlighted on the document.

Respondent’s evidence was substantial and persuasive to establish the true value in money of the subject vehicle to be $7,075, assessed value of $2,360.See, Respondent’s Valuation Methodology, infra.



The Commission has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious.The hearing officer shall issue a decision and order affirming, modifying or reversing the determination of the board of equalization, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious.[5]

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.[6]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.[7]In an overvaluation appeal, true value in money for the property being appealed must be determined based upon the evidence on the record that is probative on the issue of the fair market value of the property under appeal.

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.[8]True value in money is defined in terms of value in exchange and not value in use.[9]It is the fair market value of the subject property on the valuation date.[10]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.[11]


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, 2011.[12]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.”[13]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.[14]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.[15]

Complainants’ Exhibits

The cover letter of Exhibit A provides information as to the actions of Complainant regarding this appeal.One of Mr. Kolker’s complaints was that the Assessor had used a “special NADA book” that no one else had access to.This argument does not establish value.The Assessor used the NADA Older Used Car Guide.This is perfectly acceptable since the NADA guide of October 2010 did not go back to cover 2002 car models.The fact that the taxpayer was unable to obtain a copy of the NADA Older Used Car Guide does not negate the fact that such a guide exists and it is a credible source to be employed for the valuation of older motor vehicles.

Complainants’ Statement:The pages from the October NADA Used Car guide provided by Mr. Kolker, of course, establish that this source does not list 2002 automobiles.This was not being contested and it has no relevance to establishing what the appropriate NADA source showed as the average trade-in for Complainants’ 2002 BMW.

Tail Light Repair Statement:The statement for the 2/3/12 tail light recall repair is irrelevant to establishing the fair market value as of January 1, 2011.

Personal Property Appeal Form:The Personal Property Appeal Form, likewise, has no relevance for establishing value.It does provide the basis that Mr. Kolker completed the form and he, in good faith, believed that it had been sent to the BOE.

1/13/12 Bill:The Arvin Auto Service statement has no relevance for establishing the average trade-in value as of 1/1/11.The fact that it shows mileage of $131,572 on 1/13/12 provides no probative evidence of the mileage on 1/1/11.Furthermore, there is no dispute that the Complainant’s automobile was to be valued with a high mileage (124,000) allowance for 2011.

Trade-In Offer:The trade-in offer from Lexus of St. Louis is only relevant to support Mr. Kolker’s opinion of value of $3,000.This was one dealer’s offer in April, 2011.The single offer of a dealer in April 2011 did not establish the value for the subject on 1/1/11.The NADA evidence supplied by Respondent is derived from a large universe of actual trade-in transactions for any given automobile listed in the given NADA source.

Complainants’ evidence only establishes a single offer four months after the valuation date.The NADA evidence provides an average trade-in value based upon transactions occurring during the period from September through December of 2010.The valuation done by the staff of the Assessor properly accounted for the high mileage of the subject vehicle.

Respondent’s Valuation Methodology

Section 137.115.9, RSMo provides the recommended methodology for the Assessor to value motor vehicles.The statutes states:

“The assessor of each county . . . shall use the trade-in value published in the October issue of the National Automobile Dealers Association Official Used Car Guide, or its successor publication, as the recommended guide for information for determining the true value of motor vehicles described in such publications.In the absence of a listing for a particular motor vehicle in such publication the assessor shall use such information or publications which in the assessor’s judgment will fairly estimate the true value in money of the motor vehicle.”


In this instance, the October 2011 NADA publication for passenger cars only covered motor vehicles from 2004 through 2011. The Complainants’ vehicle was not listed therein since it was a 2002 model.The Assessor’s staff went to another NADA publication, as the statute provides.That publication was the NADA Official Older Used Car Guide 1991 through 2002 Passenger Cars, Light-Duty Trucks, September through December 2010.[16]This was an appropriate and acceptable alternative source of information to be used to value Complainants’ automobile.

The Older Used Car Guide showed Average Trade-In value to be $7,600.The subject’s mileage as of January 2011 was approximately 124,100.[17]The Assessor’s staff then made an adjustment for the high mileage utilizing the NADA computer program to produce the Vehicle Trade Value Summary Report.[18]This resulted in the final conclusion of value of $7,075, assessed value of $2,360.

The valuation methodology employed by the Assessor was appropriate for this valuation problem.Respondent’s evidence established by substantial and persuasive evidence the appropriate true value in money as of January 1, 2011, for Complainants’ automobile to be $7,075.

Summary and Conclusion

Complainant’s opinion of value being based only on a single offer of trade-in does not constitute substantial and persuasive evidence.Respondent’s utilization of NADA data, from within three months of the valuation date, establishing an average trade-in value of $7,080 does constitute substantial and persuasive evidence upon which value can be set.


The assessed valuation for the subject property as determined by the Assessor for the subject tax day is AFFIRMED.

The assessed value for the subject property for tax year 2011 is set at $2,360.

Application for Review

Complainants 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. [19]

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 August 14, 2012.





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 14thday of August, 2012, to:J. Bernard Kolker, 1400 Mayapple Trail, Glencoe, MO 63038,Complainant; Paula Lemerman, Associate County Counselor, County Government Center, 41 South Central Avenue, Clayton, MO 63105, Attorney for Respondent; Jake Zimmerman, Assessor, County Government Center, 41 South Central Avenue, Clayton, MO 63105; John Friganza, Collector, 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


573-751-1341 Fax



[1] Submitted as an attachment to the Complaint for Review of Assessment was a copy of Individual Personal Property Appeal Form completed by J. Bernard Kolker.The Hearing Officer assumed that an appeal had been made to the Board.A review of the Board files revealed that no such appeal form had been received by the Board, although Complainant, Mr. Kolker believed he had in fact mailed it to the Board.


[2] Statement of Respondent’s Counsel at Hearing.


[3] Exhibit 2; Copy of Title attached to Complaint for Review of Assessment.


[4] Personal property is assessed at 1/3 of its appraised value (true value in money/fair market value) Section 137.115, RSMo.


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


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


[7] Section 137.115.5, RSMo


[8] St. Joe Minerals Corp. v. State Tax Commission, 854 S.W.2d 526, 529 (Mo. App. E.D. 1993); Missouri Baptist Children’s Home v. State Tax Commission, 867 S.W.2d 510, 512 (Mo. banc 1993).


[9] Daly v. P. D. George Company, et al, 77 S.W.3d 645, 649 (Mo. App E.D. 2002), citing, Equitable Life Assurance Society v. STC, 852 S.W.2d 376, 380 (Mo. App. 1993); citing, Stephen & Stephen Properties, Inc. v. STC, 499 S.W.2d 798, 801-803 (Mo. 1973).


[10] Hermel, supra.


[11] 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.


[12] Hermel, supra.


[13] 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).


[14] See, Cupples-Hesse, supra.

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

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

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


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


[16] Exhibit 1


[17] Testimony at Evidentiary Hearing


[18] Exhibit 2


[19] Section 138.432, RSMo.