Joseph Afshari v. Zimmerman (SLCO)

December 5th, 2012

State Tax Commission of Missouri

 

JOSEPH AFSHARI,)

)

Complainant,)

)

v.                                                                            ) Appeal No.11-10563

)

JAKE ZIMMERMAN, ASSESSOR,)

ST. LOUIS COUNTY, MISSOURI,)

)

Respondent.)

 

DECISION AND ORDER

 

HOLDING

 

Decision of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.Complainant failed to present substantial and persuasive evidence to rebut the presumption of correct assessment by the Board of Equalization.

True value in money for the subject property for tax years 2011 and 2012 is set at $61,000, residential assessed value of $11,590.

Complainant appeared pro se.

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

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

ISSUE

Complainant appealed, on the ground of overvaluation, the decision of the St. Louis 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, 2011.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.

2.Evidentiary Hearing.The Evidentiary Hearing was held on November 15, 2012, at the St. Louis County Government Center, 41 South Central Avenue, Clayton, Missouri.


3.Subject Property.The subject property is identified by map parcel number 15-3-5-3.004.It is located at 6705 North Highway 67, Florissant, Missouri.The property consists of a 5.59 acre tract of undeveloped residential property.As of October 17, 2012, the property had been listed for 169 days on the market at a listing price of $200,000.[1]

4.Karst Preservation District.Complainant’s property is subject to the Karst Preservation District Regulations of St. Louis County.[2]

5.Assessment.The Assessor appraised the property at $61,000, a residential assessed value of $11,590.The Board of Equalization sustained the assessment.[3]

6.Complainant’s Evidence.The following exhibits were received into evidence on behalf of Complainant.

EXHIBIT

DESCRIPTION

A

Sale Contract – Subject – dated 5/22/71

B

Title Insurance – Subject – dated 6/2/71

C

Cashier Check Receipt, dated 6/2/71

D

Title Insurance Receipt – dated 5/27/71

E

Rezoning Letter – dated 1/16/90

F

Rezoning Denial – dated 5/16/84

G

Karst District Regulations – dated 2/11

H

Planning Commission Receipt – dated 8/27/71

I

Consulting Engineer Letter – dated 11/29/71

 

Mr. Afshari testified in his own behalf.He stated is opinion of the fair market value of the property as of January 1, 2011, to have been $15,000 to $20,000.

There was no evidence of new construction and improvement from January 1, 2011, to January 1, 2012, therefore the assessed value for 2011 remains the assessed value for 2012.[4]

Complainant’s evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board.

7.Respondent’s Evidence.The following exhibits were received into evidence on behalf of Respondent.Respondent rested upon the presumption of correct assessment by the Board.Respondent has no burden to present any evidence to sustain the presumption of correct assessment by the Board.

EXHIBIT

DESCRIPTION

1

2011 Property Record Card – Subject

2

MultiList Listing Sheet – Subject – dated 10/17/12

 

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.[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]

Presumption In Appeals

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[8]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.

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.[9]Complainant failed to present any evidence that would establish that the Board’s valuation was erroneous, or to establish what a willing buyer and seller would have agreed to as the purchase price of the property on 1/1/11.

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.[10]True value in money is defined in terms of value in exchange and not value in use.[11]It is the fair market value of the subject property on the valuation date.[12]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.[13]

 

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.[14]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.[15]Complainant failed to present an opinion of value that was developed from any recognized appraisal methodology.

Complainant’s Burden of Proof


In order to prevail, 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, 2011.[16]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.”[17]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.[18]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.[19]

Complainant’s Exhibits

Complainant’s exhibits were received into evidence without object by Respondent.Nevertheless, none of them establish what a willing buyer and seller would have paid for the property on 1/1/11.With the exception of Exhibit G, none of the other exhibits possessed any relevance to the issue of what a willing buyer and seller would have agreed to as the purchase price of the property on 1/1/11.

Exhibit A:This document is the Sale Contract, dated 5/22/71 for the purchase of the subject property for $31,000 by Mr. Afshari and his wife.The purchase price approximately forty years before the present valuation date is too remote in time to establish value for this appeal.The exhibit is irrelevant.

Exhibit B:This document is a copy of the title insurance Schedule A & B and legal description for the 12971 purchase.There is nothing in the document that is probative on the issue of true value in money in this appeal.The exhibit is irrelevant.

Exhibit C:This document is a copy of a Cashier’s Check, dated 6/2/71 in the amount of $5,917.Apparently this represents some part of the payment for the 1971 purchase.It has no information from which the Hearing Officer can find fair market value in this appeal.The exhibit is irrelevant.

Exhibit D:This document is a copy of the receipt for the Title Insurance of the 1971 transaction.It has no information from which the Hearing Officer can find fair market value in this appeal.The exhibit is irrelevant.

Exhibit E:This document is a letter to Mr. Afshari from Attorney John King relative to a hearing on 1/25/90 before the Public Improvements Committee.It has no information from which the Hearing Officer can find fair market value in this appeal.The exhibit is irrelevant.

Exhibit F:This document is a letter to Mr. Afshari from the St. Louis County Department of Planning, dated 6/16/84.The letter is requesting information for modifications to rezoning petitions.It has no information from which the Hearing Officer can find fair market value in this appeal.The exhibit is irrelevant.

Exhibit G:This document is a copy of the Karst Preservation District Regulations.According to Mr. Afshari’s testimony, the property under appeal is subject to these regulations.There is nothing in the Exhibit from which the Hearing Officer can find fair market value in this appeal.However, the Exhibit does provide relevant information as the permitted land uses and developments and conditional land use and development permits applicable in the District.

Exhibit H:This document is a receipt, dated 8/27/71 for a change of zoning fee before the St. Louis County Planning Commission.It has no information from which the Hearing Officer can find fair market value in this appeal.The exhibit is irrelevant.

Exhibit I.This document is a letter to Mr. Afshari from a consulting engineer, dated 11/29/71 on a proposal to remove excess topsoil for the North St. Louis Mall.It has no information from which the Hearing Officer can find fair market value in this appeal.The exhibit is irrelevant.

Owner’s Opinion of Value

The owner of property is generally held competent to testify to its reasonable market value.[20]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[21]Mr. Afshari gave his opinion of value to be $15,000 to $20,000.He provided no documentation that would establish any connection to the actual market value for his property as of January 1, 2011.

A taxpayer does not meet his burden if evidence on any essential element of his case leaves the Hearing Officer “in the nebulous twilight of speculation, conjecture and surmise.”[22]An unsubstantiated owner’s opinion has no probative value.It is a mere opinion without any evidentiary support.It is essentially the owner’s speculation, conjecture or surmise.Accordingly, it has no elements to support it.It is without any market foundation.No probative weight can be accorded such an opinion.

Mr. Afshari’s unsupported opinion leaves the Hearing Officer with nothing but speculation, conjecture and surmise.Those elements do not establish that the Board’s conclusion of value was in error.Those elements fail to establish the value of the property as of 1/1/11.


ORDER

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

The assessed value for the subject property for tax years 2011 and 2012 is set at $11,590.

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. [23]

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 December 5, 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 5th day of December, 2012, to:Joseph Afshari, 3160 Pershall Rd., St. Louis, MO 63136, Complainant; 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; Eugene Leung, Director of Revenue, 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

 


[1] Exhibits 1 and 2

 

[2] Exhibit G

 

[3] BOE Decision Letter, dated 9/23/11, filed with Complaint for Review of Assessment; Residential property is assessed at 19% of its appraised value (true value in money, fair market value).Section 137.115.5, RSMo

 

[4] Section 137.115.1, 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] Hermel, Inc. v. STC, 564 S.W.2d 888, 895 (Mo. banc 1978); Chicago, Burlington & Quincy Railroad Co. v. STC, 436 S.W.2d 650, 656 (Mo. 1968); May Department Stores Co. v. STC, 308 S.W.2d 748, 759 (Mo. 1958)

 

[9] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959)

 

[10] 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).

 

[11] 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).

 

[12] Hermel, supra.

 

[13] 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.

 

[14] See, Nance v. STC, 18 S.W.3d 611, at 615 (Mo. App. W.D. 2000); Hermel, supra;Xerox Corp. v. STC, 529 S.W.2d 413 (Mo. banc 1975).

 

[15] St. Joe Minerals Corp. v. STC, 854 S.W.2d 526, 529 (App. E.D. 1993); Aspenhof Corp. v. STC, 789 S.W.2d 867, 869 (App. E.D. 1990); Quincy Soybean Company, Inc., v. Lowe, 773 S.W.2d 503, 504 (App. E.D. 1989), citing Del-Mar Redevelopment Corp v. Associated Garages, Inc., 726 S.W.2d 866, 869 (App. E.D. 1987); and State ex rel. State Highway Comm’n v. Southern Dev. Co., 509 S.W.2d 18, 27 (Mo. Div. 2 1974).

 

[16] Hermel, supra.

 

[17] 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).

 

[18] 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.

 

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

 

[20] Rigali v. Kensington Place Homeowners’ Ass’n, 103 S.W.3d 839, 846 (Mo. App. E.D. 2003); Boten v. Brecklein, 452 S.W.2d 86, 95 (Sup. 1970).

 

[21] Cohen v. Bushmeyer, 251 S.W.3d 345, (Mo. App. E.D., March 25, 2008); Carmel Energy, Inc. v. Fritter, 827 S.W.2d 780, 783 (Mo. App. W.D. 1992); State, ex rel. Missouri Hwy & Transp. Com’n v. Pracht, 801 S.W.2d 90, 94 (Mo. App. E.D. 1990); Shelby County R-4 School District v. Hermann, 392 S.W.2d 609, 613 (Sup. 1965).

 

[22] See, Rossman v. G.G.C. Corp. of Missouri, 596 S.W.2d 469, 471 (Mo. App. 1980).

 

[23] Section 138.432, RSMo.