John Janet, et al. v. Strahan (Taney)

February 6th, 2009

State Tax Commission of Missouri

 

JOHN JANET, CHANELLE JANET,)

And MATTHEW JANET,)

)

Complainants,)

)

v.)Appeal Nos.08-89503 thru 08-89506

)

JAMES STRAHAN, ASSESSOR,)

TANEY COUNTY, MISSOURI,)

)

Respondent.)

 

ORDER

AFFIRMING HEARING OFFICER DECISION

UPON APPLICATION FOR REVIEW

 

On March 9, 2009, Senior Hearing Officer W. B. Tichenor entered his Order Granting Motion to Dismiss and affirming the assessments determined by the Taney County Assessor.

Complainants timely filed an Application for Review of the Order.The basis provided for the Application for Review is:“2008 property taxes were paid under protest, therefore, this reference for denial, that if taxes are paid, such is due notice, does not apply to 2008 taxes.”

DECISION

The Hearing Officer properly concluded, “as a matter of law Complainants by receiving and paying the 2007 tax bill were charged with notice that the assessed values for each property were: Residential – $5,700; Commercial – $21,110.Appeal to the Board is a jurisdictional requirement for appeal to the Commission.[1]The failure to pursue their administrative remedy before the Taney County Board of Equalization in the summer of 2008 when the Board was in session to hear appeals requires that the appeals be dismissed.”[2]

The assessed values for 2007 and 2008 did not change, irrespective of whether the taxes changed.Complainants had actual notice by virtue of the 2007 tax bills of the classifications and the assessed values that had been placed on each property by the Assessor.

ORDER

The Commission upon review of the record and Decision in this appeal, finds no grounds upon which the Order of the Hearing Officer should be reversed or modified.Accordingly, the Order is affirmed.The 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.

If judicial review of this decision is made, any protested taxes presently in an escrow account in accordance with these appeals 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 Taney 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 assessments in these appeals.

SO ORDERED April 7, 2009.


STATE TAX COMMISSION OF MISSOURI

Bruce E. Davis, Chairman

Jennifer Tidwell, Commissioner

Charles Nordwald, Commissioner

 

 

ORDER GRANTING MOTION TO DISMISS

 

HOLDING

 

Motion to Dismiss granted.Complainants appeared pro se.Respondent appeared by County Counselor, Robert R. Paulson II.Order ruled on by Senior Hearing Officer, W. B. Tichenor.

FINDINGS OF FACT

Procedural History

1.Complaints for Review of Assessment received by the Commission 11/26/08.Complaints filed in the name of JCM Realty (John Janet).The sole ground for appeal stated on each Complaint was Misclassification.Complainants claimed the properties under appeal were misclassified as commercial properties.Complainants asserted correct classification was residential.Valuation was not raised as an issue.Commission Acknowledgement Letter sent 12/11/08.Tax Protest Letter filed with Taney County Collector 12/16/08.[3]

2.The properties under appeal constitute a four-plex condominium structure and are identified as follows:[4]

Appeal No.

Parcel No.

Building – Unit

08-89503

08-4.0-18-000-000-004.021

Sycamore Ridge – BLD – 2; Unit 1/A

08-89504

08-4.0-18-000-000-004.022

Sycamore Ridge – BLD – 2; Unit 2/B

08-89505

08-4.0-18-000-000-004.023

Sycamore Ridge – BLD – 2; Unit 3/C

08-89506

08-4.0-18-000-000-004.024

Sycamore Ridge – BLD – 2; Unit 4/D

 

3.JCM Realty Management, LLC was terminated by Certification of Secretary of State of Missouri, 11/5/08.The principles of the terminated Limited Liability Company were John R. Janet, Chanelle C. Janet and Matt Janet.[5]As of the date Complaints filed with the Commission, John Janet, Chanelle Janet and Matthew Janet are the real parties in interest in the appeals.

4.The Commission issued its Order setting Discovery and Exchange Schedules on December 12, 2008.Said Order stated:

“Complainants, by correspondence with the Commission (copy enclosed to Respondent’s Counsel and Respondent), assert no notice of increased assessment received on the subject properties.Complainants’ only issue on appeal is misclassification.Complainants assert that the subject properties should be classified as residential and not commercial.Valuation is not at issue.”

 

5.Respondent’s Motion to Dismiss was received by the Commission on 1/8/09.Respondent’s Motion was based on two grounds: (1) JCM Realty Management LLC is the owner of the properties under appeal; and (2) Complainants did not exhaust its administrative remedies by appealing to the Taney County Board of Equalization in 2008.

6.Complainants filed by facsimile transmission on 1/13/09 Response to the Motion to Dismiss.Attached as an exhibit to said Response was copy of a form letter[6] on Respondent’s letterhead identifying the properties under appeal and affirming the condominium was not in a nightly rental program and had never been.The Condo Owner Letter was signed by John Janet and Chanelle C. Janet and dated October 15, 2008.

7.The Commission received on 1/20/09 Respondent’s Response to Complainants’ Response to Motion to Dismiss.

8.The 2007 taxes were not paid under protest and no appeal was made to the Commission on or before December 31, 2007.Therefore the Commission has no jurisdiction with regard to the 2007 assessment and taxes.[7]

12.Complainants filed their appeal directly to the Commission prior to December 31, 2008.[8]Complainants filed a separate protest letter stating misclassification and wrote on the check paying under protest.[9] The Commission issued its Notice to the Collector for the impoundment of the 2008 taxes on 12/11/08.[10]

13.On February 27, 2009, at the instruction of the Hearing Officer, Complainants filed their Amended Complaint For Review of Assessment signed by each Complainant.

14.The Assessed Values for each of the properties as shown on the 2008 tax statements are:

Appeal No.

Parcel No.

Assessed Value

08-89503

08-4.0-18-000-000-004.021

Residential: $5,700; Commercial: $21,110

08-89504

08-4.0-18-000-000-004.022

Residential: $5,700; Commercial: $21,110

08-89505

08-4.0-18-000-000-004.023

Residential: $5,700; Commercial: $21,110

08-89506

08-4.0-18-000-000-004.024

Residential: $5,700; Commercial: $21,110

 

CONCLUSIONS OF LAW AND DECISION

Complainants’ Standing

The first point raised by Respondent’s Motion to Dismiss is in effect that Complainants do not have standing to appeal.This is based on the fact that on January 1, 2008, the record owner of the properties under appeal was JCM Realty Management LLC.However, prior to Complainants filing their Complaints the LLC was terminated.The members of the terminated LLC are the real parties in interest in this matter.

Complainants notified the Commission in their original correspondence of October 2, 2008 (Letter of Appeal) that John, Chanelle, and Matthew Janet were the members of the LLC.At the time the Complaints were filed the LLC no longer existed.Therefore, irrespective of whether record title remains in the LLC, John, Chanelle and Matthew Janet, as the real parties in interest, had standing to file the appeal.Furthermore, absent a showing that there is some other person or persons entitled to the distribution of the subject properties as assets of the LLC, the properties are to be distributed to the members of the LLC, i.e. John Janet, Chanelle Janet and Matthew Janet.[11]It is unnecessary for the Commission to address what steps the Complainants may need to take to get record title transferred from the LLC to them as individuals.It is irrelevant to whether they may maintain this action before the Commission.

Respondent makes no claim that some other persons were the members of the LLC.Complainants as the members of the terminated LLC have standing to file an appeal with the Commission.Respondent’s point is not well taken.

Exhaustion of Administrative Remedies

The second point presented by Respondent is that Complainants did not exhaust their administrative remedies.The argument in support of this point is that since JCM Realty paid its 2007 real estate taxes it hadconstructive, if not actual notice as to the classifications on the properties.Respondent contends that “applicable case law holds that payment of taxes is notice.”

Respondent’s point is well taken.Even if a taxpayer has not received formal notice, by paying taxes the taxpayer is charged with notice of the assessed value of the property on which the taxes were based.[12]Therefore, as a matter of law Complainants by receiving and paying the 2007 tax bill were charged with notice that the assessed values for each property were: Residential – $5,700; Commercial – $21,110.Appeal to the Board is a jurisdictional requirement for appeal to the Commission.[13]The failure to pursue their administrative remedy before the Taney County Board of Equalization in the summer of 2008 when the Board was in session to hear appeals requires that the appeals be dismissed.

ORDER

The assessed valuations for the subject properties as determined by the Assessor for Taney County for the subject tax day are AFFIRMED.Exchange Schedule set by Order dated 12/12/08 is vacated.

The assessed values for the subject properties are set as follows:

Appeal No.

Parcel No.

Assessed Value

08-89503

08-4.0-18-000-000-004.021

Residential: $5,700; Commercial: $21,110

08-89504

08-4.0-18-000-000-004.022

Residential: $5,700; Commercial: $21,110

08-89505

08-4.0-18-000-000-004.023

Residential: $5,700; Commercial: $21,110

08-89506

08-4.0-18-000-000-004.024

Residential: $5,700; Commercial: $21,110

 

A party may file with the Commission an application for review of this order and decision within thirty days of the mailing date set forth in the Certificate of Service for this Decision.The application shall contain specific facts or law as grounds upon which it is claimed the order and decision is erroneous.Said application must be in writing addressed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, MO 65102-0146, and a copy of said application must be sent to each person at the address listed below in the certificate of service.

Failure to state specific facts or law upon which the appeal is based will result in summary denial. [14]

The Collector of Taney 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 March 9, 2009.

STATE TAX COMMISSION OF MISSOURI

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W. B. Tichenor

Senior Hearing Officer

 

 

 


[1] §138.430, RSMo; 12 CSR 30-3.010.

 

[2] Order, p. 5.

 

[3] Official Notice is taken of report provided to Hearing Officer by Taney County Collector on February 18, 2009.Agencies shall take official notice of all matters of which the courts take judicial notice. Section 536.070(6), RSMo.

 

[4] Complainant’s Letter, dtd 10/2/08 to the Commission; 2008 Tax Statements.

 

[5] Official Notice is taken of Records of Secretary of State’s Office on the Termination of JCM Realty Management, LLC – LC0754226.

 

[6] Hereafter Condo Owner Letter.

 

[7] 12 CSR 30-3.010 (1)(B) 1 & 2.

 

[8] Ibid.

 

[9] Verified by Taney County Collector.

 

[10] Section 139.031.2. RSMo 2008.

 

[11] See, Sections 347.101 & 347.139, RSMo.

 

[12] See, Buck v. Leggett, 814 S.W.2d 872 (Mo. 1991); Mo. Am. Water Co. v. Collector of St. Charles County, 103 S.W.3d 266 (Mo. App. ED 203).

 

[13] §138.430,RSMo; 12 CSR 30-3.010.

 

[14] Section 138.432, RSMo.