John & Staci Dillon v. Rinehart (Clay)

State Tax Commission of Missouri

 

JOHN AND STACI DILLON,)

Complainants,)

v.) Appeal No.12-32009

CATHY RINEHART,ASSESSOR,)

CLAY COUNTY, MISSOURI,)

Respondent.)

 

ORDER

SETTING ASIDE HEARING OFFICER DECISION

UPON APPLICATION FOR REVIEW

On April 11, 2013, Senior Hearing Officer Luann Johnson entered her Decision and Order (Decision) sustaining the assessment by the Clay County Board of Equalization

On May 9, 2013, Complainant filed an Application for Review of the Decision.The State Tax Commission issued an Order giving Respondent until June 10, 2013 to file a Response and Complainant could file a reply on or before July 10, 2013.On June 10, 2013, Respondent filed a Response.Complainant did not file a Reply on or before July 10, 2013.Complainant did file a reply out of time on July 19, 2013.Respondent did not object to the late filing but objected to the Commission considering any evidence not presented at hearing.Commission sustained the Respondent’s objection.

A party subject to a Decision and Order of a hearing officer with the State Tax Commission may file an application requesting the case be reviewed by the Commission.The Commission may then summarily allow or deny their request.The Commission may affirm, modify, reverse or set aside the decision.The Commission may take any additional evidence and conduct further hearings.^[1]

CONCLUSIONS OF LAW & DECISION

Points Raised Upon Application for Review

Complainant raised the following grounds in his Application for Review:

1.              The Hearing Officer erred in her use of 1.0 acre of land for the residential valuation of the property rather than 0.7 acre;

2.              The Hearing Officer erred in not listing all data in her decision; and

3.              The Hearing Officer erred in her demeanor at the hearing.

Determination of Acreage

The Complainant alleges error as to whether one acre or .7 acre was considered as residential and its impact on the market value of the property.The subject property consists of 29.26 acres.The acreage is in a CRP.When the home was built in 2009, .7 of an acre was removed from the program.

Neither the Complainant’s appraiser nor the Respondent’s appraiser felt that it was appropriate to use comparables with less than one acre lot.The realty is the residence is located on a thirty acre lot and the only impact of the .7 of an acre is the impact of the amount of land considered part of CRP and classified as agriculture.Therefore, the true value of the property would be based upon what a willing buyer would pay to a willing seller for a home on approximately thirty acres.

Listing all Information and Data at a Hearing

The Complainant alleges error in that the Hearing Officer did not specifically set forth all details regarding the property and all details presented by each party.

The Complainant presented the following exhibits at hearing:

 The Hearing Officer addressed each exhibit either at the hearing or in her order.The exhibits were either admitted into evidence and weighted accordingly or excluded due to issues of foundation, hearsay or relevance.

Exhibits 1 and 2 were graphs depicting the declining sale prices of homes in the State, the county and city of Kearney. The exhibits are hearsay and irrelevant.The information for the graphs came from an unknown source.The underlying information was not provided and the author could not be questioned.Further, the exhibits do not provide the market value for the subject property.

Exhibit 3 contains documents showing participation in the CRP program.Neither party disputes the land being in the CRP program, its classification as agriculture or its grading.

Exhibit 4 is a list of residential properties near the subject.The assessed value, their acreage and market values are presented.Without details regarding the property, knowledge of their comparability and analysis for market adjustments, the exhibit is not relevant in establishing market value of the subject property.

Exhibit 6 is a packet of information including photographs of the property, cost data, land sale data and adjustments to the County’s comparable properties by the Complainant.The photographs establish the condition of the property.The exhibit may establish that the County was incorrect in its valuation but it does not satisfy the second prong of the Complainant’s burden – the market value of the subject property on January 1, 2012.

The Complainant argues that the Hearing Officer’s failure to cite the lack of paved driveway, structural defects, poor quality of construction, lack of retaining wall, water leakage, and broken windows invalidates her determination of value in the Decision.However, the Decision sets forth that “[a]lthough Complainant pointed out some problems he perceived in the construction of the property, both appraisers found the improvements of good quality and in good condition.”^[2]The Complainant used a Missouri State Certified Residential Appraiser and the county used their staff appraiser for valuation of the property.Both appraisers made a physical inspection of the property.Both appraisers made adjustments to the sales comparison approach for any items that were superior in the comparables. The two appraisers, one for Complainant and one for Respondent, made a determination of value based upon the relevant characteristics of the subject property.The appraisers made adjustments as part of their valuation approaches to take into consideration characteristics unique to the subject property.

The Hearing Officer as the trier of fact may consider the testimony of each 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 heard the testimony of two appraisers and considered their expert opinions as to the condition of the property and its condition and quality in comparison with other residential properties that sold during a relevant time period.The Hearing Officer made her findings of fact after hearing all the evidence.The Hearing Officer is not required to list every item presented at hearing but sets forth the facts she deems to be relevant in finding true value.The record is made so that all items presented are available for review.

Conduct of Hearing Officer

The Complainant alleges improper conduct by the Hearing Officer, more specifically alleging prejudice in favor of the Assessor, inconsistent rulings between parties’ evidence and rushing the hearing.The Complainant does not allege any specifics as to what he was prohibited from presenting to the Hearing Officer.

A review of the record shows that the hearing lasted two and half hours.The recorded hearing establishes that the Hearing Officer allowed the Complainant to present an appraisal report by his Missouri State Certified Residential Appraisal.The recording establish that the Complainant was allowed to testify.Objections by the Assessor’s counsel were made.The Hearing Officer explained the objections to the Complainant, inquired about the purpose of any evidence, and explained why she was or was not allowing the exhibits into evidence.Further, the Respondent’s attorney presented information and communication that occurred between the parties and the Hearing Officer prior to the hearing to explain the process and what evidence would be considered to determine true value and how true value was established.Although Complainant may not agree with the Hearing Officer’s rulings, the Hearing Officer is required to comply with the rules of evidence so that both parties, the Complainant and the Assessor, are provided with an opportunity for a full and fair hearing.

“Although a trial court may not dictate trial strategy, it may rule on matters so that ‘trial tactics and strategy of counsel might be curtailed or directed into appropriate avenues to achieve a proper end.’” Wilkins v. Cash Register Service Company, 518 S.W.2d 736, 750 (Mo. App. 1975).  

Finding Of True Value

Three opinions of value were presented: the Complainant’s opinion, the Complainant’s expert’s opinion, and Respondent’s expert’s opinion.Complainant, John Dillon, proposed a value of $200,000.Complainants’ appraiser proposed a value of $255,000 (assessed value $48,450), for just the residential improvements and 0.7 acre of land, based upon the sales comparison approach.Respondent’s appraiser proposed a value of $295,000 (assessed value $56,060), for just the residential improvements and 0.7 acre of land, based upon the sales comparison approach.

Both appraisers testified that they had to make substantial adjustments to their appraisal reports to account for the artificially small lot size. (Although the property is on 30 acres, the residential classification is one less than one acre.) The Complainant’s appraiser testified that the Complainant’s requirement that she only consider houses on small lots, limited her ability to use properties truly comparable to the subject property. The adjustments made by the experts ranged from 20% to 45%.Adjustments in excess of 25% are considered suspect as not being truly comparable sales.Complainant’s appraiser testified that a house of this type should be on a three to five acre lot while Respondent’s expert testified that it would warrant a ten acre lot.In fact, the house sits on 30 acres.To try and adjust value to less than an acre, misstates what actually exists.

Mr. Dillon based his value on the cost approach.Mr. Dillon did not present the actual construction costs.He testified that he purchased the land in 2003 for $165,000.Improvements and alterations were made to the property using government funds.In 2009, he received a construction loan in the amount of $416,000. He testified that he built the home himself and spent $200,000.The Complainant presented no receipts or other evidence of actual costs to build the residence; the only receipts offered at the hearing were receipts for expenses related to the land in the CRP program.

The Commission reviewed all opinions of value and the data used to base the opinions.The Board of Equalization determined that the market value of the residential improvements was $265,300 and assigned a value to the residential site of $50,000.The appraiser for the Complainant concluded, under the cost approach, a market value of the residential property to be $251,021 and determined a residential site value of $9,000.The appraiser for the Respondent concluded, under the cost approach, a market value for the residential improvements was $289,300 with a residential site value of $25,000.

The Commission finds the County’s Board of Equalization’s determination of market value for the improvements of $265,300 is appropriate and neither party presented substantial and persuasive evidence to rebut the presumption of correct assessment on the improvements.

The Commission finds that there was substantial and persuasive evidence to rebut theBoard’s determination of residential site market value of $50,000.After a review of all evidence, the Commission finds that the appropriate residential site value is $25,000.

The Commission finds that the market value of the residential property is $290,300 or a residential assessed value of $55,160.

ORDER

The Commission upon review of the record and Decisions in these appeals, finds the Hearing Officer erred.According the Decisions is overturned.

The assessed value for the residential property for tax year 2012 is set at $55,160.

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 Clay 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 23, 2013.

Bruce E. Davis, Chairman

Randy B. Holman, Commissioner

Victor Callahan, Commissioner

 

  

DECISION AND ORDER

HOLDING

 Decision of the Clay County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.Hearing Officer finds Complainants did not rebut the presumption of correct assessment by the Board.

Complainants appeared pro se.

Respondent appeared by Counsel, Trish Hughes.

Case heard and decided by Senior Hearing Officer Luann Johnson.

ISSUE

The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2012.

SUMMARY

Complainants appeal, on the ground of overvaluation and misclassification, the decision of the Clay County Board of Equalization, which sustained the valuation of the subject property determined by the Assessor.

The Assessor initially determined an appraised value of $326,200 (assessed value of $59,910, as residential property and $1,310 assessed value of grades 3 and 4 agricultural property)This broke down into a residential site value[3] of $50,000; residential improvements of $265,300 (total residential market value of $315,300) and $10,900 in agricultural productive use values.

Complainants proposed a value of $200,000 (assessed value of $37,000).

Complainants’ appraiser proposed a value of $255,000 (assessed value $48,450), for just the residential improvements and 0.7 acre of land, based upon the sales comparison approach.Respondent’s appraiser proposed a value of $295,000 (assessed value $56,060), for just the residential improvements and 0.7 acre of land, based upon the sales comparison approach.

A hearing was conducted on Wednesday, March 6, 2013, at the Clay County Government Center, Liberty, Missouri.

The Hearing Officer finds that Respondent’s cost approach is the most reasonable and supportable indicator of the value of the subject property.The correct value for the residential portion of this mixed use property is $315,300 (assessed value $59,910), as determined by the Board.The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.

Complainants’ Evidence

Complainants introduced the following exhibits:

Respondent’s Evidence

Respondent presented the following evidence:

 

 

FINDINGS OF FACT

 1.Jurisdiction over this appeal is proper.Complainants timely appealed to the State Tax Commission from the decision of the Clay County Board of Equalization.

2.The subject property is located at 9000 NE 168^th Street, Kearney, Clay County, Missouri.The property is identified by parcel number 06-601-00-01-009.00.The property consists of a 29.26 acre tract improved with a 2,752 square foot all brick ranch/1½ story home with an effective age of two years.The home has four bedrooms and 3½ baths on the main floor with a loft and 4^th bathroom upstairs.With the addition of a wall, this loft area could be converted into a 5^th bedroom.The home has a full unfinished basement; three car garage on the main level with a 4^th basement garage.Although Complainant pointed out some problems he perceived in the construction of the property, both appraisers found the improvements of good quality and in good condition.

3.Complainants purchased the acreage in 2003 for $165,000.The acreage was put into a CRP program.[4]  Thereafter, when Complainants decided to build their home, 7/10^th of an acre was removed from the CRP program for their home site.

4.Complainants spent at least $200,000 to build said home.They borrowed $416,000 for the construction loan.Complainant, John Dillon, acted as general contractor for the construction of the home.No evidence was presented to show that he included a reasonable contractor’s fee in his calculation of the cost to build the home.No accounting was presented showing actual expenditures for the home.Complainants argue that their value should not be higher than $200,000, which obviously does not include any land value.Complainants’ value contradicts their experts’ value; is not based upon any reliable appraisal methodology; and therefore is not substantial and persuasive.

5.Complainants’ appraiser testified that the typical lot size for a home of this type is 3 to 5 acres and her appraisal used comparables with these larger lots which she attempted to adjust downward because Complainants asked her to value their property as if it has a 7/10^th acre lot.Some lots she adjusted $34,000.Complainant’s appraiser testified that she would never have used the comparables she picked to value a home with a 30 acre lot.In fact, because of the size of the lot she was given, she had to use in town lots.

Likewise, Respondent’s appraiser found that comparables had 10 acre lots which she also attempted to adjust because she believed that the subject property suffered from a small lot.Some lots she adjusted $63,000.

In fact, the subject property has a 30 acre lot; not a 7/10^th acre lot.There was no evidence whatsoever tending to demonstrate that this property would be split in order to be sold.The property may get the benefit of the agricultural classification and assessment rate on the bulk of the lot but the law does not require appraisers to ignore reality in order to value a non-existent property.The appraisers’ attempts to make a downward adjustment to the sales prices of comparables in order to account for the artificial “size” of the subject lot are inappropriate.[5]

6.The parties’ sales comparison approaches to value show a range of value for the home, if it only had 7/10^th of an acre of land, of $244,050 to $313,000.However, the gross adjustments were well outside the acceptable range to establish comparability.Respondent’s appraiser’s gross adjustments were 27%, 36.4%, 26.63%, 20.26% and 42%.Complainants’ appraiser’s gross adjustments were 36.5%, 39.9%, 44.8%, 27.1% and 33.6%.All we can conclude from these comparable sales is that Respondent’s value might be a little closer to accurate than Complainants’.

Taking out the huge land adjustments, we find comparable values as follows:$273,075; $275,150; $275,275; $278,050; $293,370; $299,575; $305,500; $333,120; $362,400; and $381,850; all of which tend to support the Board value rather than the value proposed by Complainants.

We do not find that the sales comparison approach utilized by either party was sufficiently accurate to represent market value for the subject property on January 1, 2012.

7.Both appraisers also prepared a cost approach.Respondent’s appraiser calculated a site value of $25,000 and the depreciated value of the improvements of $289,300 with additional site improvements of $1,400 for an indicated value of the residential portion of the subject property of $315,700.Respondent’s appraiser used Marshall and Swift cost tables for an average/good quality home indicating a replace cost of $100.87 per square foot.

Complainants’ appraiser prepared a cost approach wherein she determined site value to be $9,000 with depreciated improvement value of $251,021 and additional site value improvements of $5,000 for an indicated value of $265,000 for the home and the 7/10^th acre site.Complainants’ appraiser used Marshall and Swift cost tables for a good quality home indicating a replace cost of $80.00 per square foot.

8.We do not have sufficient evidence to determine which appraisers’ cost approach is more accurate.Nor can we say that either cost approach rebutted the presumption in favor of the Board of Equalization.Therefore, we find that the Board appropriately valued the residential portion of the subject property at $315,300 (assessed value $59,910).

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.[6]

Official and Judicial Notice

Agencies shall take official notice of all matters of which the courts take judicial notice.[7]

Courts will take judicial notice of their own records in the same cases.[8]In addition, courts may take judicial notice of records in earlier cases when justice requires[9] or when it is necessary for a full understanding of the instant appeal.[10] Courts may take judicial notice of their own records in prior proceedings involving the same parties and basically the same facts.[11]

Presumptions In Appeals

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[12]

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, even if simply to sustain the value made by the Assessor, 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.[13]

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.[14]It is the fair market value of the subject property on the valuation date.[15]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.[16]

Duty to Investigate

In order to investigate appeals filed with the Commission, the Hearing Officer has the duty to inquire of the owner of the property or of any other party to the appeal regarding any matter or issue relevant to the valuation, subclassification or assessment of the property.The Hearing Officer’s decision regarding the assessment or valuation of the property may be based solely upon its inquiry and any evidence presented by the parties, or based solely upon evidence presented by the parties.[17]

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.[18]

Trier of Fact

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.[19]

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.[20]

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.[21]

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.[22]

Complainants’ Burden of Proof

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, 2012.[23]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.”[24]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[25]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.[26]

Owner’s Opinion of Value

The owner of property is generally held competent to testify to its reasonable market value.[27]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[28]“Where the basis for a test as to the reliability of the testimony is not supported by a statement of facts on which it is based, or the basis of fact does not appear to be sufficient, the testimony should be rejected.”[29]

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.”[30]

ORDER

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

A party may file with the Commission an application for review of this decision within thirty (30) days of the mailing date shown 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, 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. [31]

The Collector of Clay 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 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 April 11, 2013.

STATE TAX COMMISSION OF MISSOURI

Luann Johnson

Senior Hearing Officer