State Tax Commission of Missouri
KHOSROW SADEGHIAN,)
)
Complainant,)
)
v. ) Appeal No.11-72003
)
JUDY HARMON, ASSESSOR,)
MONROE COUNTY, MISSOURI,)
)
Respondent.)
DECISION AND ORDER
HOLDING
Decision of the Monroe County Board of Equalization reducing 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 $280,300, residential assessed value of $53,260.
Complainant appeared pro se.
Respondent appeared pro se.
Case decided by Senior Hearing Officer W. B. Tichenor.
ISSUE
Complainant appeals, on the ground of overvaluation and discrimination, the decision of the Monroe County Board of Equalization, which reduced 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 Monroe County Board of Equalization.
2.Exhibits and Written Direct Testimony Filed.By Order dated 1/10/12, the parties were ordered to file and exchange exhibits and written direct testimony to establish their case in chief.The case is decided upon exhibits and written direct testimony filed.
3.Assessment.The Assessor appraised the property at $353,700, a residential assessed value of $67,200.[1]The Board reduced the appraised value to $208,300, a residential assessment of $53,260.[2]
4.Subject Property.The subject property is identified by map parcel number 1-4.0-18-3-7-6.The property is located at 520 Monroe St. Monroe City, Missouri.The property consists of a lot improved by two 8 unit apartment buildings and 9,100 square feet of concrete parking.[3]
5.Complainant’s Evidence.The following exhibits were received into evidence on behalf of Complainant.
|
EXHIBIT |
DESCRIPTION |
|
A |
Handwritten Statement of Kathy Stewart – District Manager for Complainant |
|
B |
Letter of Tom Steward dated 9/23/11 and 9 photographs of reported areas in need of repair |
|
C |
Letter dated 7/16/11 of Heather Pettit – Bookkeeper for Complainant |
|
D |
List of Newspaper ads bills from 2/5/08 to 7/4/11 |
|
E |
Letter dated 5/31/12 from Heasley Construction – opinion of value – $8,000 per unit |
|
F |
Deed by Substitute Trustee, dtd 1/17/08 – subject property – $106,415 |
|
G |
Photograph purporting to show fire damage. |
|
H |
6 photographs purporting to show various deferred maintenance items. |
|
I |
Narrative Testimony – Khosrow Sadeghian |
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]
The property was purchased on January 17, 2008, for $106,415, under a Substitute Trustee Deed.[5]Complainant’s opinion of value based upon the January 2008 purchase.
Complainant’s evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2011, to be $106,415, as proposed in Exhibit I.See, Complainant Fails To Prove Value, infra.
6.Respondent’s Evidence.Respondent filed the following exhibits which were received into evidence.
|
EXHIBIT |
DESCRIPTION |
|
1 |
2 photographs of exterior of subject buildings 1 & 2 |
|
2 |
2 photographs of kitchen and bathroom of Apt # 105 |
|
3 |
Front of Property Record Card on Subject |
|
4 |
Back of Property Record Card on Subject |
|
5 |
Copy of Impact Notice |
|
6 |
Letter dated 9/31/10 to Complainant from Heasley Construction |
|
7 |
Board of Equalization Minutes – 7/18/11 |
|
8 |
Photograph and assessment information on Brookview Apartments |
|
9 |
Narrative Statement – Judy Harmon |
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.[6]
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.[7]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.[8]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.[9]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.[10]Complainant failed to present any substantial and persuasive evidence to rebut the presumption of correct assessment by the Board.
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.[11]True value in money is defined in terms of value in exchange and not value in use.[12]It is the fair market value of the subject property on the valuation date.[13]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.[14]
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.[15]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.[16] Complainant presented no evidence which concluded a fair market value under any recognized appraisal methodology.
Complainant Fails To Prove Value
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.[17]There is no presumption that the taxpayer’s opinion is correct. The taxpayer in a Commission appeal 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.”[18]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.[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]
Complainant’s Exhibits
A review of the Complainant’s exhibits to ascertain what if any probative value they possess is in order.
Exhibit A – Statement of Kathy Stewart:This undated document asserting that an apartment is being used as a storage room due to a fire in the kitchen is not substantial and persuasive evidence addressing what a willing buyer and seller would have agreed to as the purchase price of the property under appeal as of January 1, 2011.
Exhibit B – Letter of Tom Stewart and Photographs:This letter describes what is apparently some construction defects in one of the subject buildings.The letter and photographs provide nothing from which the Hearing Officer can conclude the fair market value of the subject property.
Exhibit C – Letter of Heather Pettit:This letter establishes that as of 1/1/11 there were no tenants living in any of the subject apartments.While this factor is one that would impact upon the purchase price of the property on that date, it does not establish what the fair market value of the property might be as a vacant apartment facility.
Exhibit D – List of Newspaper Ads:This document is apparently offered to establish that Complainant was in fact advertising the subject apartments for rent during 2008, 2009, 2010 and 2011.This fact is irrelevant to establish what the property would have sold for on January 1, 2011.
Exhibit E – Heasley Construction Letter:This letter does provide an opinion of the per unit value of the subject property, which apparently is as of May 31, 2012, the date of the letter, as no other date is specified in the letter.The letter contains nothing to establish that Charles Heasley possessed the education, training and experience to appraise the subject property as of January 1, 2011.There is no showing that he is licensed or certified to appraise property in Missouri.Accordingly, his opinion of the per unit value as of May 31, 2012, is irrelevant.It is given no probative weight.
Exhibit F – Trustee’s Deed:This is the deed whereby the Substitute Trustee conveyed to Complainant the subject property on January 17, 2008.The exhibit establishes that Complainant paid $106,415 for the property on that date.
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.[21]There are a couple of serious problems as to what if any probative weight can be accorded this document to establish the fair market value of the subject property on January 1, 2011.
First, the sale which took place as evidenced by Exhibit F occurred just under 3 years prior to the valuation date of January 1, 2011.This raises the question as to how relevant is that sale being three years remote in time.The three year old purchase may not be too remote in time for the purchase of an apartment building in Monroe County or other rural counties located in Northeast and North central Missouri.However, Complainant provided no substantiating evidence to establish that the market for similar apartment buildings selling in 2008 was essentially unchanged in 2011.
Second, the issue is whether the “Trustee’s Deed” is actually evidence of a voluntary purchase.Respondent’s evidence reports that the subject apartments were purchased at the “Court House Door January 2008” for $106,415.So the parties are agreed as to the purchase price.However, when the Hearing Officer puts together the testimony of Ms. Harmon as to the events surrounding the January, 2008 purchase and the fact of a sale by a Substitute Trustee, the inescapable conclusion is that Complainant purchased this property at a foreclosure sale.
Foreclosure sales are not generally considered to meet the required Standard For Valuation.supra.It is generally understood that the seller at a foreclosure sale, i.e. trustee under the deed of trust, is only motivated to get an amount sufficient to satisfy the note against the property and the costs of sale.It is further a matter of knowledge by those familiar with foreclosure sales, that the property is not actually advertised in a manner customary to real estate offered for sale in the open, competitive market.Foreclosures are announced by legal publications in newspapers in the legal notice section.They are not listed with real estate agents, or offered for sale in the real estate sections of newspapers.Generally, property being foreclosed does not have a sign posted on the property announcing it will be sold.
Had Complainant presented evidence of attempts to market the property in a reasonable manner, prior to the foreclosure, such evidence might have given credibility to the price that the property bought at foreclosure in January, 2008.However, absent establishing that the property was marketed in a manner consistent with generally accepted business practices for the open market sale of such a property, the amount which the property brought at foreclosure can be given no probative weight.
Exhibits G & H – Photographs:Exhibit G purports to show fire damage in the kitchen area of an apartment.Exhibit H purports to show various items of deferred maintenance and needed repair in portions of the subject apartment buildings.The photographs are photocopies and provide no detail as to the extent of the damage, needed maintenance or repair.Irrespective of that, the photographs do not provide a basis upon which the Hearing Officer can conclude fair market value.While a picture may be worth a thousand words, a photograph is seldom of any probative benefit to establish the fair market value of any given property.Photographs simply cannot represent the dollar cost for needed repairs, or the dollar value of a given property. Accordingly, the exhibits have no probative weight for reaching a conclusion of value.
Exhibit I – Narrative Statement – Complainant:The narrative statement of Complainant provides nothing of substance to establish what the fair market value of the subject property under the Standard For Valuation, supra, was on 1/1/11.The narrative statement simply concludes the owner’s opinion of value to be what was paid at the foreclosure sale.
Owner’s Opinion of Value
The owner of property is generally held competent to testify to its reasonable market value.[22]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[23]In this instance, notwithstanding the various documents submitted, the owner’s opinion of $106,415 is simply based on what he paid at the foreclosure sale for the subject property.Complainant admitted that when he purchased the subject property he did not have it appraised and did not do an interior inspection before it was bought through the trustee sale.[24]The Hearing Officer fails to see how Complainant was a well informed and well advised purchaser. An opinion of value based on what was paid at the foreclosure sale, absent substantiating evidence that prior to foreclosure reasonable efforts had been to market the property in a recognized type of sales offering which sufficiently exposed it to the market for a reasonable time, does not constitute an opinion based upon proper elements or a proper foundation.The owner’s opinion in this instance is given no probative weight.
Summary and Conclusion
Complainant’s reliance upon a sale price at foreclosure does not constitute substantial and persuasive evidence to establish the value asserted.The valuation set by the Board of Equalization must be affirmed.
Complainant Fails To Prove Discrimination
In order to obtain a reduction in assessed value based upon discrimination, the Complainant must (1) prove the true value in money of the subject property on January 1, 2011; and (2) show an intentional plan of discrimination by the assessing officials resulting in an assessment of that property at a greater percentage of value than other property, generally, within the same class within the same taxing jurisdiction.[25]Evidence of value and assessments of a few properties does not prove discrimination.Substantial evidence must show that all other property in the same class, generally, is actually undervalued.[26]The difference in the assessment ratio of the subject property the average assessment ratio in the subject county must be shown to be grossly excessive.[27]No other methodology is sufficient to establish discrimination.[28]
Where there is a claim of discrimination based upon a lack of valuation consistency, Complainant has the burden to prove the level of assessment for the subject property in 2011. This is done by independently determining the market value of the subject property and dividing the market value into the assessed value of the property as determined by the assessor’s office.
Complainant must then prove the average level of assessment for residential property in Monroe County for 2011.This is done by (a) independently determining the market value of a representative sample of residential properties in Monroe County as of 1/1/11; (b) determining the assessed value placed on the property by the assessor’s office for the 2011 tax year; (c) dividing the assessed value by the market value to determine the level of assessment for each property in the sample; and (d) determining the mean and median of the results.
The difference between the actual assessment level of the subject property and the average level of assessment for all residential property, taken from a sufficient representative sample in Monroe County must demonstrate a disparity that is grossly excessive.[29]
Complainant’s discrimination claim fails because he failed to establish the market value of the subject property.Without establishing their market value, he did not establish the assessment ratio.The ratio used by the Board of Equalization was the statutorily mandated ratio of 19%.Without establishing the assessment ratio, the taxpayer cannot establish that the subject property was being assessed at a higher percentage of market value that any other property.
However, even if Complainant had established the market value for his property, the discrimination claim would still fail because he did not demonstrate that a statistically significant number of other residential properties within Monroe County were being assessed at a lower ratio of market value than the subject property.Complainant offered no evidence which remotely addressed the valuation and assessment ratio of any other residential property in Monroe County.
Because Complainant failed to establish the market value of his property and failed to establish that the subject property was being assessed at a higher percentage of market value than a statistically significant number of other properties in Monroe County, the taxpayer failed to establish discrimination.
Respondent’s Evidence
Since Complainant failed to meet his burden of proof and rebut the presumption of correct assessment by the Board and establish the fair market value of the subject property as of January 1, 2011, there is no need to provide any analysis of the Respondent’s evidence, since it did not advocate a value different than that set by the Board.
Decision Upon Documents Filed
After a review of Complainant’s exhibits and narrative testimony, the Hearing Officer concluded that Complainant failed to present a prima facie case to rebut the presumption of correct assessment by the Board and to prove the true value in money of the subject property as of January 1, 2011.Therefore, it was not necessary to conduct an evidentiary hearing which would have been for the sole purpose of permitting Respondent to cross-examine Complainant.Nothing would have been served to permit Complainant to have cross-examined Respondent, since she had no burden of proof in the appeal.
ORDER
The assessed valuation for the subject property as determined by the Board of Equalization for Monroe County for the subject tax day is AFFIRMED.
The assessed value for the subject property for tax years 2011 and 2012 is set at $53,260.
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 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 application for review is based will result in summary denial. [30]
Disputed Taxes
The Collector of Monroe 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 August 28, 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 28th day of August, 2012, to:Khosrow Sadeghian, P.O. Box 50593, Denton, TX 76206-0593, Complainant; Talley Kendrick, Prosecuting Attorney, 300 N. Main, Third Floor, Paris, MO 65275, Attorney for Respondent; Judy Harmon, Assessor, 300 N. Main, Room 107, Paris, MO 65275; Sandra Francis, Clerk, 300 N. Main, Room 204, Paris, MO 65275; Anita Dunkle, Collector, 300 N. Main, Room 101, Paris, MO 65275.
___________________________
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] Exhibit 9;Residential property is assessed at 19% of its appraised value (true value in money, fair market value) – Section 137.115.5, RSMo
[5] Exhibit F.There is no title to the Exhibit.There is a handwritten notation “Purchase agreement for Monroe City Apartments @ 106,415.”The document is not an agreement or contract.It conveys to Complainant a tract of land, under a legal description, the Hearing Officer assumes to be the Subject.The Hearing Officer has titled the document a Trustee’s Deed for purpose of further identification and discussion.
[9] 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)
[10] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959)
[11] 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).
[12] 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).
[14] 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.
[15] 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).
[16] 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).
[18] 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).
[19] 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.
[22] 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).
[23] 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).