State Tax Commission of Missouri
v. ) Appeal No.11-10272
JAKE ZIMMERMAN, ASSESSOR,)
ST. LOUIS COUNTY, MISSOURI,)
DECISION AND ORDER
Complainant failed to appear at hearing or to present substantial and persuasive evidence to rebut the presumption of correct assessment by the Board of Equalization.Appeal Dismissed for failure to comply with the rules and orders of the Commission, failure of prosecution, and failure to present a prima facie case for the relief sought.Decision of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.
True value in money for the subject property for tax years 2011 and 2012 is set at $395,100, residential assessed value of $75,070.
Complainant did not appear at hearing.
Respondent appeared by Associate County Counselor, Paula J. Lemerman.
Case heard and decided by Senior Hearing Officer W. B. Tichenor.
Complainant appeals, 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.Pre-filing of Exhibits.By Order dated 5/11/12 the parties were ordered to file on or before August 31, 2012, with the Commission and serve upon the opposing party a copy of all exhibits which support the party’s opinion of value for the property under appeal.Respondent complied with said Order.Complainant did not comply with said Order.Accordingly, Complainant was precluded from offering any exhibits on the issue of the fair market value of the subject property.Complainant did not seek leave to file and exchange exhibits out of time.
3.Evidentiary Hearing.The Evidentiary Hearing was set for 10:30 a.m.,
September 13, 2012, at the St. Louis County Government Center, 41 South Central Avenue, Clayton, Missouri.Complainant did not appear for the hearing and did not file a request for continuance of the hearing.
6.Complainant’s Evidence.No evidence was presented to establish a prima facie case to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2011, to be $290,000, as proposed in the Complaint for Review of Assessment.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.
7.Respondent’s Evidence.Respondent pre-filed the Appraisal Report (Exhibit 1) of Sharon Kuelker.Exhibit 1 was received into evidence.Respondent’s appraisal was accepted only to sustain the original assessment made by the Assessor and sustained by the Board and not for the purpose of raising the assessment above that value.The appeal being dismissed there is no need to review or analyze Respondent’s evidence.
CONCLUSIONS OF LAW AND DECISION
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.
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.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.In an overvaluation appeal, true value in money for the property being appealed 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.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 is not evidence of value.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.
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.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.”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.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.
In the present case, the stating of an owner’s opinion on the Complaint for Review of Assessment does not constitute substantial and persuasive evidence that the proposed opinion was the fair market value of the subject property as of January 1, 2011.Complainant by failing to present supporting evidence for his opinion of value did not meet the required burden of proof.The presumption of correct assessment by the Board stands.
Dismissal of Appeal
The appeal is dismissed for failure to comply with the rules and orders of the Commission regarding appeals, failure of prosecution, and failure to present evidence to establish a prima facie case for the relief sought.
Appeal is dismissed.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 $75,070.
Application for Review
Complainant 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.
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 October 3, 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 3rd day of October, 2012, to:Joseph Hunter, 60 Villa Coublay Dr., St. Louis, MO 63131, 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.
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
 Case called at 10:30 a.m., Complainant did not appear by 10:45 a.m.By email sent to firstname.lastname@example.org (email address provided by Complainant on Complaint for Review of Assessment) at 7:40 a.m., Monday, September 10, 2012, Complainant was informed that he could appear at the evidentiary hearing to testify as to his opinion of value, but was precluded from offering any exhibits in support of his opinion of value, due to his failure to comply with the Commission Order, dated 5/11/12.
 Order, dated 5/11/12, pp. 2 & 3: “If you cannot attend this hearing and need a continuance, you must put your request in writing and give the reason why it is necessary to reschedule the hearing.Your request for continuance must be filed with the State Tax Commission Legal Section at P. O. Box 146, Jefferson City, MO 65102-0146 no later than five (5) days before the date of hearing. . . . If you do not appear at the hearing and no request for continuance is made, your appeal will be dismissed for failure to prosecute.”
 Exhibit 1: Addendum Page 1 of 4 – ASSESSMENT INFORMATION AND TAX DATA; Residential property is assessed at 19% of its appraised value (true value in money, fair market value) – Section 137.115.5, RSMo
 In any case in St. Louis County where the assessor presents evidence which indicates a valuation higher than the value finally determined by the assessor or the value determined by the board of equalization, whichever is higher, for that assessment period, such evidence will only be received for the purpose of sustaining the assessor’s or board’s valuation, and not for increasing the valuation of the property under appeal.The evidence presented by the Respondent was substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the fair market value of the property under appeal, as of January 1, 2011, to be $400,000.However, under the Commission rule just cited and Supreme Court decision the assessed value cannot be increased above $75,070 (fair market value – $395,100) in this particular appeal.
 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)
 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).
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.