Jon Ames v. Kessinger (Greene)

 

JON AMES,)

)

Complainant,)

)

v.) Appeal Number 09-33022

)

RICK KESSINGER, ASSESSOR,)

GREENE COUNTY, MISSOURI,)

)

Respondent.)

 

DECISION AND ORDER

 

HOLDING

 

Decision of the Greene County Board of Equalization sustaining the assessment made by the Assessor is SET ASIDE.True value in money for the subject property for tax years 2009 and 2010 is set at $255,100, residential assessed value of $48,470.Complainant appeared pro se. Respondent appeared by County Counselor, Theodore L. Johnson III.Case heard and decided by Senior Hearing Officer W. B. Tichenor.

ISSUE

Complainant appeals, on the ground of overvaluation and discrimination, the decision of the Greene County Board of Equalization, which sustained the valuation of the subject property. The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2009 and whether there was an intentional plan by assessing officials to assess the property under appeal at a ratio greater than 19% of true value in money, or at a ratio greater than the average 2009 residential assessment ratio for Greene County.

A hearing was conducted on January 14, 2010, at the Old Historic Greene County Courthouse, Springfield, Missouri.

The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.

FINDINGS OF FACT

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

2.Assessment.The Assessor appraised the subject property at $274,900, residential assessed value of $52,230.The Board sustained the Assessor’s value.

3.Subject Property. The subject property is located at 2407 Red Ivy Road, Springfield, Missouri.The property is identified by map parcel number 19-17-102-153.[1]The property consists of a 13,195 square foot lot.The site is improved by a single-family frame and brick structure of average quality construction.The home was built in 2006 and appears to be in average condition.The residence has a total of seven rooms, including three bedrooms.There are three and a half baths.The house contains 2,482 square feet of living area.The home has a crawl space and a three-car attached garage.The home’s crawl space suffers from a problem of water seepage.This problem has been addressed by installation of two sump pumps, a vapor barrier and a dehumidifier.There is also a 14 x 16 frame and brick utility/storage shed, constructed under a building permit issued in May 2008.For purposes of this Decision, it is valued as if it was completed prior to January 1, 2009.

4.No New Construction and Improvement.There was no evidence of new construction and improvement from January 1, 2009, to January 1, 2010.The 2009 assessment remains as the assessment for 2010.[2]The work performed in 2009 to address the water seepage problem was not a sufficient expenditure from which a determination could be made as to what, if any change in fair market value would result from this work.

5.Complainant’s Evidence.Mr. Ames testified in his own behalf.He stated his opinion of value for the property to be $209,000.This opinion of value was based upon the sale of a home across the street from the subject.The following exhibits were offered into evidence on behalf of Complainant.

 

Exhibit A

Complainant also presented the testimony and appraisal report of Licensed Real Estate Appraiser, Koni A. Hough.Ms. Hough performed both the cost approach and sales comparison approach in her appraisal.The cost approach indicated a fair market value of $227,235.The sales comparison methodology relied upon five sales of properties from July, 2008 to June 15, 2009.This approach concluded a value of $228,500.The appraiser’s final opinion of value was as determined under the sales comparison approach as of June 25, 2009.The appraiser made no time of sale adjustments.Testimony at hearing was that there was no market data upon which a reliable time of sale adjustment could be made, accordingly, none was warranted.Comparable sale 2 was a short sale.Comparable 3 was a foreclosure.No adjustments were made for either of these factors.

Exhibit B

Exhibit B consisted of a spread sheet showing sales and foreclosures for the years 2006 through 7/1/2009 for the subject and six comparable subdivisions, prepared by Ms. Hough.Objection was made as to the relevance of the exhibit for purposes of establishing true value in money as of January 1, 2009.The objection was sustained and the exhibit was excluded on that basis.However, during cross-examination, Counsel for Respondent inquired of Ms. Hough on the subject covered by the exhibit.The exhibit does contain relevant data on the point of the history of sales and foreclosures in the subject subdivision.During the time period covered there were 12 sales in the subject subdivision and 7 foreclosures, as shown by the exhibit and as testified to by Ms. Hough during cross-examination.

6.Respondent’s Evidence.Respondent presented the testimony and appraisal report[3] of Cynthia Baldwin, Residential Real Estate Appraiser for Greene County.The property record card on the subject was received into evidence as Exhibit 2.Ms. Baldwin arrived at an opinion of value as of January 1, 2009, of $287,900 for the subject property.The appraiser developed a sales comparison approach to value, relying on three sales to determine the indicated true value in money.No time of sale adjustment was made for any of the sales.The sales occurred in a time frame from March 2007 to November 2008.Comparable sale 1 was a foreclosure. No adjustment was made for this factor.

7.No Evidence of Discrimination.Complainant presented no evidence to establish the assessment ratio for residential property in Greene County for the 2009 assessment.Therefore, the claim of discrimination is deemed abandoned.

8.True Value In Money Established.The evidence of value presented by both parties, through the appraisals presented, establishes the true value in money of Complainant’s property as of January 1, 2009, to be $255,100, assessed residential value of $48,470.See, Hearing Officer Finds Value, infra.

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.[4]

Presumptions In Appeals

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[5]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.[6]

Complainant’s evidence contained in Exhibit A rebutted the presumption of correct assessment and established a value of $228,500.Respondent’s evidence contained in Exhibit 1 rebutted the presumption of correct assessment and established a value of $287,900.

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

 

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.[11]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.[12]Both appraisers conclude an opinion of value based upon the sales

comparison approach to value.This is an appropriate appraisal methodology for the present valuation problem.

Hearing Officer Finds Value

The evidence presented tenders three different values based upon the actual purchase of the subject property at a time relevant to the assessment date of January 1, 2009, and two different appraisals of the subject property.The opinion of value of $209,900 testified to by Mr. Ames based upon a sale of the property across the street from the subject is not persuasive. The owner of property is generally held competent to testify to its reasonable market value.[13]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[14]Neither Ms. Hough, nor Ms. Baldwin elected to use the sale referenced by Mr. Ames.A single sale of another property is insufficient in this instance to establish value.Accordingly, the owner’s opinion based upon that sale is given no probative weight.

Burden of Proof

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.[15]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.”[16]

Respondent, when advocating a value different from that determined by the original valuation or a valuation made by the Board of Equalization, must meet the same burden of proof to present substantial and persuasive evidence of the value advocated as required of the Complainant under the principles established by case law.[17]There is no presumption that the Assessor’s value advocated at an evidentiary hearing is correct.[18]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[19]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.[20]

Sale of Subject

Evidence of the actual sales price of property is admissible to establish value at the time of an assessment, provided that such evidence involves a voluntary purchase not too remote in time.The actual sale price is a method that may be considered for estimating true value.The actual sales price, between a willing seller who is not obligated to sell and a willing buyer who is not compelled to buy, establishes an outer limit on the value of real property.[21]

The subject property was listed for sale for two years prior to the purchase by Mr. Ames in April 2008.[22]The property sold at foreclosure and was purchased by Complainant for $222,000.No evidence was presented as to the listing price for the property during the two years prior to foreclosure.Ordinarily, the sale of the subject at foreclosure would not be considered, given that the trustee under the deed of trust is obligated to sell the property to recover funds to satisfy the promissory note against the property.In many instances the only bidder at the foreclosure auction will be the financial institution that is the holder of the note.Such is not the case in this instance.

Use of Foreclosure Sales in the Appraisals

Neither Ms. Baldwin, nor Ms. Hough gave any weight to the foreclosure sale of the subject.The reasoning was that it was sold in foreclosure therefore it was not considered.However, both appraisers recognized that in the subject’s market at a time period relevant to the valuation date of January 1, 2009, foreclosure sales constituted a part of the market.Comparable sale 1 utilized by Ms. Baldwin sold in October 27, 2007, in foreclosure.Ms. Hough’s comparable sale 3 sold in June 2009 in foreclosure.Although Ms. Baldwin did not present a market analysis as to the number of recent sales in the subject subdivision that were foreclosure sales, as did Ms. Hough, she was confident in utilizing the 2007 foreclosure as a comparable sale.In fact, Ms. Baldwin’s final conclusion of value rests upon her foreclosure comp.

Neither appraiser deemed an adjustment was warranted to either of their foreclosure comparables for this factor.The conclusion from the evidence in the record is that as it relates to the two foreclosure comparables no adjustment for this factor was necessary.Both of the foreclosure comps fell within the market range of the other comparables being utilized by the two appraisers.This then leads to the question of why some weight in the appraisals should not have been given to the purchase at foreclosure by Complainant of the subject.

On a per square foot of living area, the April 2008 purchase by Mr. Ames calculates to $89.44.The Hough comps sold on a per square foot basis of $96.24, $87.64, $89.26, $110.24 and $80.98, respectively.It is noted that the foreclosure comp sold just 18 cents below the Ames’ purchase price.Furthermore, this comp is the median sale from this list of comparables.

The three sales utilized by Ms. Baldwin sold on a per square foot basis of $107.53, $112.08 and $98.47.This range, at its lower end, falls only about 10% above the Ames’ price, a smaller percentage variance than for the range of Baldwin comps.The foreclosure comp is the median price in the range, just as Ms. Hough’s foreclosure comp was the median price in her range of values.

When all eight sales are set in the range of per square foot sale prices, the median falls at $97.35, or 9.47% below the Baldwin foreclosure comp, and 8.31% above the Hough foreclosure comp.The Ames’ purchase price comes within 8.12% of the median of all eight comps.When the subject purchase price is included in the list as the ninth comparable, it falls even closer to the median per square foot sale price.The foregoing gives credence to the conclusion of each appraiser that there was no basis to adjust the foreclosure sale upon which each relied.

The Journal of Property Tax Assessment and Administration[23] in addressing the issue of foreclosure-related sales observed, “When foreclosure-related sales constitute the preponderance of sales in an area or research shows little difference between them and comparable conventional sale, then validated foreclosure-related sales can be sued without adjustment.”[24]“An appraiser should not ignore foreclosure sales and short sales if consideration of such sales is necessary to develop a credible value opinion.As is always the case in selecting sales to use as comparables, the appraiser must investigate the circumstances of each transaction … including whether atypical motivations or sales concessions were involved, or whether the property condition was compromised.”[25] (Emphasis in original)Foreclosure sales, purchases at foreclosure by a party other then the lending institution holding the promissory note, are recognized as a part of the relevant real estate market for the property that is the subject of this appeal.The utilization of such sales to arrive at an indicated value does not represent a flaw in the appraisal methodology in this case.

Likewise, consideration of the purchase of the subject at foreclosure, along with the other market data, would have been appropriate.There is no basis in logic to utilize one foreclosure sale, but turn a blind eye to the purchase of the subject at foreclosure, when that purchase comes within the range established by the other comparables utilized.It would have been in the interest of both appraisers to strengthen their appraisals by conducting additional research into the listing of the subject property prior to foreclosure, whether by owner or real estate broker.Any information as to the amount owed against the property versus listing price and final purchase price would have been appropriate to have included in each of the two appraisals.Information as to any offers made while on the market, number of bidders, other than the holder of the note at auction, and bids made other than that of Mr. Ames would have given a more detailed picture concerning the 2008 purchase of the subject.The absence of such additional information, however, does not negate consideration of the April 2008 purchase.

Values Indicated From Appraisals

The range of adjusted values presented in this case falls as follows:$226, 275, $228,445, $237,350, $238,945, $247,345, $255,400, $276,600 and $287,900.The median of this range falls between $238,945 and $247,345.The range of sale dates for Ms. Hough’s sales was from July 2008 to June 2009.Therefore, the five sales bracketed the valuation date of January 1, 2009 by six months on either side, with four of the sales in 2009.Given that no evidence supports a time adjustment for either the 2008 or the 2009 sales, the fact that the valuation date for the appraisal was June 25, 2009 is immaterial.The appraisal provides evidence to conclude a value as of January 1, 2009, of $228,500.

The three Baldwin comps sold in October 2007, March 2007 and November 2008 or from 21 months to 2 months prior to valuation date of January 1, 2009.As previously noted, the appraiser did not deem a time adjustment necessary for the 2007 sales.The appraisal provides evidence upon which a conclusion of value can be made of $287,900.

If the foreclosure comps are removed from consideration in the two appraisals, the overall range of adjusted values that would be established would be $226, 275, $228,445, $238,945, $247,345, $255,400, and $276,600.The median of this range, like the range including the two foreclosure sales, falls between $238,945 and $247,345.This provides further validation that in this particular case the foreclosure sales are representative of the market range for this appraisal problem.

Conclusion of Value

The purchase price of $222,000 when adjusted to account for the addition of the utility/storage shed after purchase produces a value of $225,500 to $228,500, depending on the adjustment utilized by each appraiser for this amenity.[26]The Hough appraisal gives support to the April 2008 purchase price as being representative of market value at that time.A weighted value of 10% of an indicated value of $227,000, to account for the utility/storage shed, is given to the 2008 purchase price.[27]A weighted value of 45% is given to the Hough conclusion of value.[28]A weighted value of 45% is given to the Baldwin value.[29]This produces an indicated value of $255,080,[30] rounded to $255,100.

Presumption of correct assessment rebutted, true value in money set at $255,100, assessed residential value of $48,470.[31]

Use of Foreclosure-Related Sales Before The Commission

This Decision should not be read as a carte blanche endorsement of the use of foreclosure-related sales in cases before the Commission.That is not what the Hearing Officer intends, or implies.The foregoing discussion with its conclusions regarding the three foreclosure-related sales in this case is based upon the evidence in this record and its persuasiveness for this Hearing Officer in this instance.

As noted above, stronger research into the subject’s April 2008 purchase was warranted and would have been helpful.Likewise, additional information for both the Hough and Baldwin foreclosure-related sales would have strengthened each appraisal.When an appraiser is confronted with the fact that foreclosure-related sales are part of the market for a given property, it is incumbent upon the appraiser to insure that the investigation into the relevant factors concerning that sale are researched in the most complete manner possible.The information gleaned from a thorough investigation should be presented in appropriate fashion within the body of the appraisal report.

This Hearing Officer does not conclude that rejection of foreclosure-related sales in every instance is warranted.Nor does he conclude that acceptance of such sales in every instance is required.The utilization of such sales cannot be ignored simply at face value because the word foreclosure is attached to the transaction.As the Appraisal Institute has indicated (supra, see Endnote 25), an appraiser has an obligation to attempt, to the best of their ability and with the best data the market will bear from their investigation, to make sense of the nonsense in an existing real estate market that in some instances will have foreclosure-related properties as an important factor that must be addressed.

ORDER

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

The assessed value for the subject property for tax years 2009 and 2010 is set at $48,470.

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 for this Decision.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 appeal is based will result in summary denial. [32]

The Collector of Greene 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 February 26, 2010.

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 26^thday of February, 2010, to:Jon Ames, 2407 Red Ivy Road, Springfield, MO 65804, Complainant; Theodore Johnson, Greene County Counselor, 901 St. Louis Street, 20th Floor, Springfield, MO 65806, Attorney for Respondent; Rick Kessinger, Assessor; Richard Struckhoff, Clerk; Scott Payne, Collector, Greene County Courthouse, 940 Boonville, Springfield, MO 65806.

 

 

____________________________

Barbara Heller, Legal Coordinator