STATE TAX COMMISSION OF MISSOURI
|KEVIN G. HEHNER,||)|
|)||Appeal No. 17-10415|
|Complainant,||)||Parcel/Loc. No. 29J620978|
|JAKE ZIMMERMAN, ASSESSOR,||)|
|ST. LOUIS COUNTY, MISSOURI,
DECISION AND ORDER
The decision of the St. Louis County Board of Equalization (BOE) is AFFIRMED. Complainant Kevin G. Hehner (Complainant) did not present substantial and persuasive evidence to rebut the presumption of correct assessment by the BOE.
The evidentiary hearing in this case was scheduled to begin at 1:00 p.m., May 24, 2018, at the St. Louis County Government Administration Building in Clayton, Missouri. Complainant failed to appear at the evidentiary hearing and failed to prosecute the appeal. Respondent Jake Zimmerman, Assessor, St. Louis County, Missouri, (Respondent) appeared by Counsel Lacey Smith, who announced ready for trial. Case decided by Senior Hearing Officer Amy S. Westermann (Hearing Officer).
Complainant appealed on the ground of overvaluation. Respondent initially set the true value in money (TVM) of the subject property at $140,500, as residential property, as of January 1, 2017. The BOE found the TVM of the subject property to be $140,500 as of January 1, 2017, thereby sustaining Respondent’s valuation. The State Tax Commission (STC) takes this appeal to determine the TVM for the subject property as of January 1, 2017.
The Hearing Officer enters the following Decision and Order.
FINDINGS OF FACT
- Jurisdiction over this appeal is proper. Complainant timely appealed to the STC.
- The subject property is located at 906 Victory Drive, St. Louis County, Missouri. It is further identified by Parcel/Locator number 29J620978.
- On December 4, 2017, the STC issued an Order on Filing of Complaint, Assigning Hearing Officer, and Requiring Prehearing Conference (Order). The Order required Complainant and Respondent to meet in person with the Hearing Officer at 2:00 p.m. on January 18, 2018, at the St. Louis County Government Administration Building, 41 S. Central Avenue, Clayton, Missouri. The Order described the procedures before the STC. Specifically, the Order stated that a request for continuance of the Prehearing Conference must be made in writing and received by the STC at least five business days prior to the conference. The Order further stated that the failure to file a timely request for continuance or the failure to appear at the Prehearing Conference would result in the dismissal of the appeal.
- On December 15, 2017, the STC received a typed letter from Complainant dated December 11, 2017. The letter stated that Complainant needed a continuance of the scheduled Prehearing Conference. On the same date, December 15, 2017, the Hearing Officer sent a letter to Complainant offering to move the Prehearing Conference to 2:00 p.m. on January 17, 2018, or to allow Complainant to attend the originally scheduled time and date of the Prehearing Conference by telephone. Complainant elected to attend the originally scheduled time and date of the Prehearing Conference by telephone.
5. On January 18, 2018, the Prehearing Conference was conducted by telephone. Complainant, counsel for Respondent, and the Hearing Officer were present. The parties did not reach an agreement as to the appeal, so the Hearing Officer set the appeal for an Evidentiary Hearing at 1:00 p.m. on May 24, 2018. The Hearing Officer informed Complainant that, if he could not attend the Evidentiary Hearing and needed a continuance, a request for a continuance must be made in writing and filed with the Commission no later than five days before the date of the Prehearing Conference, not including intermediate Saturdays, Sundays, and legal holidays. The Hearing Officer informed Complainant that if he did not appear at the hearing and no timely request for continuance were made, the appeal would be dismissed for failure to prosecute.
6. Complainant did not make a request, timely or otherwise, for a continuance of the Evidentiary Hearing. Complainant did not communicate with the Hearing Officer or with Respondent regarding Complainant’s attendance at the Evidentiary Hearing.
7. On May 24, 2018, the Evidentiary Hearing was commenced as scheduled. Complainant did not appear. Respondent appeared by counsel, who announced ready for trial. Following a grace period for Complainant to appear, the matter was placed on the record for the entry of decision noting Complainant’s failure to appear and to prosecute the appeal and affirming the decision of the BOE.
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, including the application of any abatement. The Hearing Officer shall issue a decision and order affirming, modifying, or reversing the determination of the BOE and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious. Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo.
Presumptions In Appeals
There is a presumption of validity, good faith, and correctness of assessment by the county board of equalization. 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). In order to prevail, a complainant must rebut the presumption of correct assessment by presenting substantial and persuasive evidence as to the proper taxation of the subject property on the tax day at issue. Hermel, 564 S.W.2d at 895; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959). There is no presumption that the taxpayer’s opinion is correct. In an appeal before the Commission, the taxpayer still bears the burden of proof because the taxpayer is the moving party seeking affirmative relief. Therefore, a complainant must prove by a preponderance of substantial and persuasive the evidence the vital elements of the case, i.e., the assessment was “unlawful, unfair, improper, arbitrary or capricious.” See, Westwood Partnership v. Gogarty, 103 S.W.3d 152, 161 (Mo. App. E.D. 2003); Reeves v. Snider, 115 S.W.3d 375, 379 (Mo. App. S.D. 2003); Daly v. P. D. George Co., 77 S.W.3d 645, 648 (Mo. App. E.D. 2002); Industrial Development Authority of Kansas City v. State Tax Commission of Missouri, 804 S.W.2d 387, 392 (Mo. App. W.D. 1991).
Complainant failed to appear and to prosecute the appeal and failed to present substantial and persuasive evidence to rebut the presumption that the BOE’s determination of the TVM of the subject property was correct.
Complainant appeared at the Prehearing Conference and was informed of the time and date of the Evidentiary Hearing. Complainant was informed that, if he could not attend the Evidentiary Hearing and needed a continuance, a request for a continuance must be made in writing and filed with the Commission no later than five days before the date of the Evidentiary Hearing not including intermediate Saturdays, Sundays, and legal holidays. Complainant was informed that the appeal would be dismissed for failure to prosecute if he did not appear at the hearing and no timely request for a continuance were made. Complainant made no request to continue the Evidentiary Hearing and did not otherwise communicate with the Hearing Officer or with Respondent. Therefore, because Complainant failed to appear at the Evidentiary Hearing and failed to prosecute the appeal, the BOE’s determination that the TVM of the subject property was $140,500 ($26,695 assessed value) as of January 1, 2017, is AFFIRMED.
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 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 may result in summary denial. Section 138.432 RSMo 2000.
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 a 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 2000, as amended.
Any Finding of Fact that is a Conclusion of Law or Decision shall be so deemed. Any Decision that is a Finding of Fact or Conclusion of Law shall be so deemed.
SO ORDERED June 19, 2018.
STATE TAX COMMISSION OF MISSOURI
Amy S. Westermann
Senior Hearing Officer
Certificate of Service
I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 19th day of June, 2018, to: Complainants(s) counsel and/or Complainants, the County Assessor and/or Counsel for Respondent and County Collector.