Joseph Afshari & Afshari Enterprises v. Zimmerman (SLCO)

 

JOSEPH AFSHARI,                                                 )Appeal Nos.09-12433 – 09-12437

)09-12443

AND)

AFSHARI ENTERPRISES, INC.,                                        )Appeal No.09-12454

)

Complainants,)

)

v.)

)

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 in certain appeals and reducing the assessments made by the Assessor in certain appeals are SET ASIDE.Complainants present substantial and persuasive evidence to rebut the presumption of correct assessment by the Board of Equalization.

True values in money and assessed values for the subject properties for tax years 2011 and 2012 are as set forth in the FINDINGS OF FACT 6.

Complainant, Joseph Afshari, appeared in person and by Counsel, Charles F. Dufour, Becker, Dufour & Yarbrough, LLP St. Louis, Missouri.

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

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

 

ISSUE

Complainants appeal, on the ground of overvaluation, the decision of the St. Louis County Board of Equalization, which sustained or affirmed the valuations of the subject properties.The Commission takes the appeals to determine the true value in money for the subject properties on January 1, 2009.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 St. Louis County Board of Equalization.Case was submitted upon exhibits and written direct testimony on January 23, 2012.[1]

2.Subject Properties.The subject properties are identified as follows:

 

The seven parcels range from .10 +/- of an acre to 10 +/- acres.The parcels are vacant, unimproved land parcels, left over as surplus or excess land from various commercial and residential property developments over the past three decades in North St. Louis County.Many of the parcels are located in or adjacent to flood plain areas which makes them all or part unusable.Some are land locked without adequate access.

3.Assessment.The appraised and commercial assessed values[2] on the properties by the Assessor and the Board of Equalization are as follows:

 

4.Complainants’ Evidence.Complainants presented the following exhibits, which were received into evidence:

 

There was no evidence of new construction and improvement from January 1, 2009, to January 1, 2010, therefore the assessed value for 2019 remains the assessed value for 2010.[4]

The appraisal evidence of Mr. Wisniewski was substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true values in money as of January 1, 2009, as reported in Exhibit A and stated in Exhibit B.[5]The testimony of Mr. Afshari was not substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true values in money as of January 1, 2009, as stated in Exhibit C. See, Complainant Proves Value Based Upon Appraisal, infra.

5.Respondent’s Evidence.Respondent presented no evidence, but after review of the Wisniewski appraisal and testimony was willing to stipulate to the appraiser’s reported values.[6]Complainants were unwilling to so stipulate believing that the opinions of value of Mr. Afshari “more correctly reflected the subject properties’ values as of January 1, 2009.”[7]

6.True Values and Assessed Values.The true values in money and assessed values for the subject properties are as follows:

 

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.[8]

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.[9]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.[10]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.

Presumption In Appeals

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[11]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.[12]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.[13]Upon presentation of the Complainant’s evidence[14] the presumption in this appeal disappeared.The case is decided free of the presumption.

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.[15]True value in money is defined in terms of value in exchange and not value in use.[16]It is the fair market value of the subject property on the valuation date.[17]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.[18]

 

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.[19]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.[20] Mr. Wisniewski concluded value based upon a sales comparison methodology this is a recognized approach for valuation of the subject properties.[21]

Complainant Proves Value Based Upon Appraisal

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.[22]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.”[23]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.[24]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.[25]

Wisniewski Appraisal

The appraisal and written direct testimony of Mr. Wisniewski is the only evidence presented upon which the Hearing Officer can find value.Respondent stipulated to having value determined as concluded by Complainant’s appraiser.Therefore, the Wisniewski conclusions of value are deemed to have established value.

Appraisal Flaws

The Hearing Officer observes that the entire extent of the information, appearing in the appraisal report, upon which the Wisniewski opinions of value were based, consists of the following, at page 36:

“We were able to find sufficient amounts of market information over the past five years that could be used to establish supportable value indicators for the land areas of the subject parcels.The search focused upon comparable land sales including commercial land sales parcels in North County (and elsewhere), residential land sales and offerings on both a per square foot and a per acre basis, and bulk or individual lot offerings, and sales of flood plain influence or otherwise encumbered lots, including lots lacking access or much near term buildable potential.

“This bracketed values in the approximate $2.00 PSF to $7.00 PSF (land area) range for commercial land sales, and in the approximate $0.50 PSF to $2.00 PSF (land area) range for residential parcels, and in the approximate sub $0.50 PSF to $1.00 PSF (land area) range for flood plain affected or otherwise compromised, stigmatized or partially unusable parcels, before adjustments.

“Adjustments to the various sales are considered applicable or should be considered for Property Rights Conveyed, Conditions of Sale, Special Financing, Expenditures immediately after the Sale, and Updates for Changing Market Conditions (all considered Transactional Adjustments).Likewise additional adjustments to the indicated value after transactional adjustments are indicated for the physical characteristics of each sale property considered, including but not limited to Location, Physical Size, Condition, Zoning, Topography, Shape and other factors.After adjustments we have a range of values in the approximate $2 to $4 per square foot range, for the best commercial parcels, in the approximate $0.50 to $1 per square foot range, for residential tracts, and in the $0.50 to $1 per square foot range for flood plain affected, partially unusable, land locked, and less functional sites.”

 

The appraiser did not provide in his report the list of properties from which the foregoing conclusions were drawn.There is no actually market data for the Hearing Officer to review and analyze to determine the validity of the appraisers determinations. There is no information as to the amount of adjustments or the basis therefore. “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.”[26]

But for the fact that Respondent stipulated to the conclusions of value presented by the appraiser, the Hearing Officer would have no basis to conclude the valuations and testimony of Mr. Wisniewski to be reliable, since the conclusions cited are not supported in the appraisal report by the underlying facts.Absent the presentation of the underlying market data which is asserted to have supported the appraiser’s conclusions, the conclusions have the appearance of little more than having been drawn out of the clear air.Clear air has no probative weight in an appeal before the Commission.

The Hearing Officer concludes that the Wisniewski appraisal is apparently what is generally accepted by prospective investors and investment institutions.However, those entities do not have the responsibility of concluding a value based upon probative evidence.The Hearing Officer has that responsibility.But for the Respondent’s concurrence in the Wisniewski values, the Hearing Officer would not have been persuaded because of the critical failure to provide supporting market data in the appraisal.

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]Mr. Afshari was in disagreement with his own appraiser.He offered in his written direct testimony different values, substantially lower than those concluded by Mr. Wisniewski and concurred in by Respondent.The fatal flaw with the Afshari opinions of value is that there is no market date presented in his testimony that supports his value.Nor was there any explanation as to how he arrived at his values.In other words, the tendered values presented by Mr. Afshari were not based upon proper elements or a proper foundation.An owner’s opinion not supported and substantiated by market data lacks any probative value.Accordingly, the owner’s opinions of value can be given no probative weight.Mr. Afshari’s testimony did not constitute substantial and persuasive evidence to both rebut the presumption of correct assessment and to establish the values asserted.

ORDER

The assessed valuations for the subject properties as determined by the Assessor and sustained or reduced 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 09-12433 for tax years 2010 and 2010 is set at $38,400.

The assessed value for the subject property in Appeal 09-12434 for tax years 2010 and 2010 is set at $40,000.

The assessed value for the subject property in Appeal 09-12435 for tax years 2010 and 2010 is set at $64,000.

The assessed value for the subject property in Appeal 09-12436 for tax years 2010 and 2010 is set at $1,280.

The assessed value for the subject property in Appeal 09-12437 for tax years 2010 and 2010 is set at $26,880.

The assessed value for the subject property in Appeal 09-12443 for tax years 2010 and 2010 is set at $41,600.

The assessed value for the subject property in Appeal 09-12454 for tax years 2010 and 2010 is set at $32,000.

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. [29]

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 March 15, 2012.

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 15^thday of March, 2012, to:Charles Dufour, 8011 Clayton Road, Third Floor, St. Louis, MO 63117, Attorney for Complainants; Paula Lemerman, Associate County Counselor, Attorney for Respondent, 41 South Central Avenue, Clayton, MO 63105; Jake Zimmerman, Assessor, 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

573-751-2414

573-751-1341 Fax