Lana Weinbach v. Jake Zimmerman, Assessor St. Louis County

August 3rd, 2018

STATE TAX COMMISSION OF MISSOURI

 

LANA WEINBACH, )  
  )  
Complainant, )  
  )  
v. ) Appeal No. 17-112204
  )  
JAKE ZIMMERMAN, ASSESSOR )  
ST. LOUIS COUNTY, MISSOURI, )  
  )  
Respondent. )  

 

DECISION AND ORDER

 

HOLDING

 

The assessment made by the Board of Equalization of St. Louis County (BOE) is AFFIRMED.  Lana Weinbach, Complainant, (Complainant) failed to present substantial and persuasive evidence to rebut the presumption of correct assessment by the BOE and to establish the true market value of the subject property of $91,900 as of January 1, 2017.

Complainant appeared pro se.

Respondent Jake Zimmerman, Assessor, St. Louis County, Missouri, (Respondent) appeared by Counsel Steven Robson.

Case heard and decided by Chief Counsel Maureen Monaghan (Hearing Officer).

ISSUE

Complainant appealed on the ground of overvaluation.  Respondent initially set the true value in money (TVM) of the subject property, as residential property, at $157,300.  The BOE lowered Respondent’s valuation and set the TVM at $153,100. The value as of January 1 of the odd numbered year remains the value as of January 1 of the following even numbered year unless there is new construction or improvement to the property.  Section 137.115.1 RSMo   The State Tax Commission (STC) takes this appeal to determine the true value in money for the subject property as the property existed on January 1, 2017, under the economic conditions as they existed on January 1, 2017.

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.
  2. Evidentiary Hearing. The issue of overvaluation was presented at an evidentiary hearing on July 23, 2018, at the St. Louis County Government Administration Building, 41 South Central Avenue, Clayton, Missouri.
  3. Identification of Subject Property. The subject property is identified by parcel/locator number 18L620459.  It is further identified as 8720 W. Kingsbury, St. Louis County, Missouri.  (Complaint; Exhibit 1)
  4. Description of Subject Property. The subject property consists of a 9,024 square foot lot improved by a 1,575 square foot, 1 story house.  It was constructed in 1952.  It has five rooms; two bedrooms and two baths.  The home suffers from deferred maintenance and is in need of repairs including roof, guttering, and exterior maintenance.   
  5. Assessment. Respondent set a TMV on the subject property at $157,300 residential, as of January 1, 2017.
  6. Board of Equalization. The BOE lowered Respondent’s TMV of the subject property and set the TVM at $153,100.
  7. Complainant’s Evidence. Complainant opined that the subject property’s TVM as of January 1, 2017, was $91,900.  To support her opinion of value, Complainant offered the following evidence:
Exhibit Description Ruling
Exhibit A Property Record Card of Subject and 8724 W Kingsbury Admitted
Exhibit B Certificate of Value for 8724 W Kingsbury Admitted
Exhibit C Photographs Admitted
Exhibit D Laclede Gas/Spire Bills Admitted

 

Complainant testified regarding the condition of her home and compared her home to 8724 W. Kingsbury.  Complainant testified that the TVM for the subject property in 2013 was $91,900, in 2015 was $104,800, and in 2017 was $153,100.  She had not made any improvements to her property.  She testified that 8724 W. Kingsbury’s TVM decreased during the same time period from $271,200 in 2013, $258,100 in 2015, and $236,900 in 2017.  The certificate of value filed for 8724 W. Kingsbury in May 2018 was $190,000. She testified that 8724 W. Kingsbury had twice the front footage, twice the lot size, and an additional 232 square feet in the improvement.  8724 W. Kingsbury also has working air conditioning and her property does not have working air conditioning.

Complainant presented photographs of her property.  The photographs depict the older roof, guttering, soffit, and fascia.  Exterior deferred maintenance also includes paint, screening on the porch, cracks in sidewalks and other concrete areas, and lack of yard maintenance.  Complainant testified that she is downhill from surrounding properties.  Her location causes moisture and mud to gather in her drive and other concrete pads.   She contends her windows, kitchen and baths are original.  Complainant also testified that her air conditioning is not working.  Exhibit D is billing statements from the gas company showing lack of gas usage from May to October.

In 2016, an established tree uprooted in the front of subject property.  The uprooting of the tree caused damage to the guttering and street.  The tree has been removed.  Complainant contends that the new concrete guttering is an eyesore and there is a gap between the gutter and road.

  1. Respondent’s Evidence. Respondent offered the following evidence to support the BOE’s determination of TVM:
Exhibit Description Ruling
Exhibit 1 Appraisal Report of Nancy McGrath[1] Admitted

 

Respondent presented the testimony and appraisal report of Nancy McGrath (McGrath). McGrath is a Missouri Certified Residential Appraiser.  She valued the subject property as of January 1, 2017.  Her opinion of value was $159,000.

McGrath completed an exterior inspection of the property, as Complainant did not permit an interior inspection.   She developed the sales comparison approach to value.  McGrath selected four sale comparables for the subject.  The properties were located within 0.21 miles of the subject property.  They sold March 2016 to November 2017.  The properties’ sale prices ranged from $185,000 to $209,000.  The appraiser made adjustment for differences in the properties.  The largest adjustment was made for condition.  The subject property was given a C5 rating.  C5 ratings are given to properties with deferred maintenance and need of significant repairs.  The lowest condition rating, C6, is reserved for properties with safety issues and those properties deemed uninhabitable.  The comparable properties were rated as C3 and C4 being well maintained and improvements with some minor deferred maintenance respectively.  The appraiser made negative adjustments of up to $35,000 for condition differences.  The appraiser also made adjustments for additional bedroom and bathrooms, basement finish, and kitchen updates.  The net adjustments ranged from -$25,500 to -$50,200 for a resulting range of value of $154,800 to $162, 500.

On cross-examination, McGrath testified that she was aware of the sale at 8724 W. Kingsbury for $190,000.  She testified that it sold as part of an estate sale.  She also testified that Comparable 4 sold in November 2017 for $185,000 with the original windows, mold issues and older roof.  The property sold again in March 2018 for $214,000 after minimal repairs were completed.

McGrath opined a TVM of the property of $159,000 as of January 1, 2017.

  1. Presumption of Correct Assessment Not Rebutted. The evidence presented by the Complainant was not substantial and persuasive to rebut the presumption of correct assessment by the BOE and establish a TVM of $191,900.

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, including the application of any abatement.  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.  Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo

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.  Article X, Sections 4(a) and 4(b), Mo. Const. of 1945.  The constitutional mandate is to find the true value in money for the property under appeal.  By statute, real property and tangible personal property are assessed at set percentages of true value in money:  residential property at 19%; commercial property at 32%; and agricultural property at 12%.  Section 137.115.5 RSMo (2000) as amended.

Investigation by Hearing Officer

In order to investigate appeals filed with the Commission, the Hearing Officer may inquire of the owner of the property or of any other party to the appeal regarding any matter or issue relevant to the valuation, subclassification, or assessment of the property.  Section 138.430.2 RSMo (2000) as amended.  The Hearing Officer’s decision regarding the assessment or valuation of the property may be based solely upon his inquiry and any evidence presented by the parties or based solely upon evidence presented by the parties.  Id.

During the hearing, the Hearing Officer inquired of Complainant.

Complainant’s Burden of Proof

To obtain a reduction in assessed valuation based upon an alleged overvaluation, the Complainant must prove the true value in money of the subject property on the subject tax day.  Hermel, Inc., v. State Tax Commission, 564 S.W.2d 888, 897 (Mo. banc 1978).  True value in money is defined as the price that the subject property would bring when offered for sale by one willing but not obligated to sell it and bought by one willing or desirous to purchase but not compelled to do so.  Rinehart v. Bateman, 363 S.W.3d 357, 365 (Mo. App. W.D. 2012); Cohen v. Bushmeyer, 251 S.W.3d 345, 348 (Mo. App. E.D. 2008); Greene County v. Hermel, Inc., 511 S.W.2d 762, 771 (Mo. 1974).  True value in money is defined in terms of value in exchange and not in terms of value in use.  Stephen & Stephen Properties, Inc. v. State Tax Commission, 499 S.W.2d 798, 801-803 (Mo. 1973).  In sum, true value in money is the fair market value of the subject property on the valuation date.  Hermel, Inc., 564 S.W.2d at 897.

A presumption exists that the assessed value fixed by the BOE is correct.  Rinehart, 363 S.W.3d at 367; Cohen, 251 S.W.3d at 348; Hermel, Inc., 564 S.W.2d at 895.  “Substantial and persuasive controverting evidence is required to rebut the presumption, with the burden of proof resting on the taxpayer.” Cohen, 251 S.W.3d at 348.  Substantial evidence can be defined as such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.  Cupples Hesse Corp. v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).  Persuasive evidence is evidence that has sufficient weight and probative value to convince the trier of fact.  Cupples Hesse Corp., 329 S.W.2d at 702.  The persuasiveness of evidence does not depend on the quantity or amount thereof but on its effect in inducing belief.   Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975). See also, 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).

There is no presumption that the taxpayer’s opinion is correct.  The taxpayer in a STC appeal still bears the burden of proof.  The taxpayer is the moving party seeking affirmative relief.  Therefore, Complainant bears the burden of proving the vital elements of the case, i.e., the assessment was “unlawful, unfair, improper, arbitrary or capricious.”  Westwood Partnership, 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. W.D. 1991).

Generally, a property owner, while not an expert, is competent to testify to the reasonable market value of his own land.  Cohen, 251 S.W.3d at 348-49; Carmel Energy, Inc. v. Fritter, 827 S.W.2d 780, 783 (Mo. App. W.D. 1992).  “However, when an owner’s opinion is based on improper elements or foundation, his opinion loses its probative value.”  Carmel Energy, Inc., 827 S.W.2d at 783.  A taxpayer does not meet his burden if evidence on any essential element of his case leaves the Commission “in the nebulous twilight of speculation, conjecture and surmise.”  See Rossman v. G.G.C. Corp. of Missouri, 596 S.W.2d 469, 471 (Mo. App. E.D. 1980).

Weight to be Given Evidence

The Hearing Officer is not bound by any single formula, rule, or method in determining true value in money and is free to consider all pertinent facts and estimates and give them such weight as reasonably they may be deemed entitled.  The relative weight to be accorded any relevant factor in a particular case is for the Hearing Officer to decide.  St. Louis County v. Security Bonhomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977); St. Louis County v. STC, 515 S.W.2d 446, 450 (Mo. 1974); Chicago, Burlington & Quincy Railroad Company v. STC, 436 S.W.2d 650 (Mo. 1968).

The Hearing Officer, as the trier of fact, may consider the testimony of an expert witness and give it as much weight and credit as deemed necessary when viewed in connection with all other circumstances.  Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. W.D. 1991).  The Hearing Officer, as the trier of fact, is not bound by the opinions of experts but may believe all or none of the expert’s testimony or accept it in part or reject it in part.  Exchange Bank of Missouri v. Gerlt, 367 S.W.3d 132, 135-36 (Mo. App. W.D. 2012).

Board Presumption and Computer-Assisted Presumption

            There exists a presumption of correct assessment by the BOE – the BOE presumption.  In charter counties or the City of St. Louis, there exists by statutory mandate a presumption that the Assessor’s original valuation was made by a computer, computer-assisted method or a computer program – the computer-assisted presumption.  These two presumptions operate with regard to the parties in different ways.

The BOE presumption operates in every case to require the taxpayer to present evidence to rebut it.  If Respondent is seeking to prove a value different than that set by the BOE, then it also would be applicable to the Respondent.

The computer-assisted presumption is applicable only if (1) the BOE lowered the value of the Assessor and Respondent is seeking to sustain the original assessment and (2) it has not been shown that the Assessor’s valuation was not the result of a computer assisted method.  The BOE’s valuation is assumed to be an independent valuation.

In the present appeal, the BOE lowered the initial valuation of Respondent, and Complainant is now seeking to change the assessment; therefore, the BOE presumption applies to Complainant.

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.   See, Nance v. STC, 18 S.W.3d 611, 615 (Mo. App. W.D. 2000); Hermel, Inc., 564 S.W.2d at 897; Xerox Corp. v. STC, 529 S.W.2d 413 (Mo. banc 1975).  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.   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. 1974).

“For purposes of levying property taxes, the value of real property is typically determined using one or more of three generally accepted approaches.”  Snider v. Casino Aztar/Aztar Missouri Gaming Corp., 156 S.W.3d 341, 346 (Mo. banc 2005), citing St. Louis County v. Security Bonhomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977).  “Each valuation approach is applied with reference to a specific use of the property—its highest and best use.” Snider, 156 S.W.3d at 346-47, citing Aspenhof  Corp., 789 S.W.2d at 869.  “The method used depends on several variables inherent in the highest and best use of the property in question.”  Snider, 156 S.W.3d at 347.  “Each method uses its own unique factors to calculate the property’s true value in money.”  Id.

“The ‘comparable sales approach’ uses prices paid for similar properties in arms-length transactions and adjusts those prices to account for differences between the properties.  Id. at 348.  “Comparable sales consist of evidence of sales reasonably related in time and distance and involve land comparable in character.”  Id. (quotation omitted).  “This approach is most appropriate when there is an active market for the type of property at issue such that sufficient data [is] available to make a comparative analysis.”  Id.

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.

 

  1. Both parties are well informed and well advised, and both acting in what they consider their own best interests.

 

  1. A reasonable time is allowed for exposure in the open market.

 

  1. Payment is made in cash or its equivalent.

 

  1. Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.

 

  1. 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.

 

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.

Discussion

Complainant’s evidence was neither substantial nor persuasive to establish the true market value of the subject property as of January 1, 2017 of $91,900.  Substantial evidence is that which is relevant, adequate, and reasonably supports a conclusion.  Cupples Hesse Corp., 329 S.W.2d at 702.  Persuasive evidence is that which causes the trier of fact to believe, more likely than not, the conclusion advocated is the correct conclusion.  Id.

Complainant did not use any of the court-approved methods of valuation to arrive at her opinion of TMV.  Complainant’s evidence established that her property did suffer from deferred maintenance but did not establish the market value for the property.

Respondent presented the testimony and appraisal report of a Missouri Certified Residential Appraiser.  The appraiser selected four comparable properties within the immediate vicinity of the subject.  McGrath took into consideration the significant deferred maintenance suffered by the subject property.  Respondent’s evidence was not used to advocate an increase in value but to support the BOE’s determination of value.

ORDER

The TVM for the subject property as determined by the BOE is AFFIRMED.  The assessed value for the subject property is $29,090 residential ($153,100 TVM), as of January 1, 2017.

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, 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 application for review is based will result in summary denial. Section 138.432, RSMo

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 August 3, 2018.

 

STATE TAX COMMISSION OF MISSOURI

Maureen Monaghan

Chief Counsel

 

Certificate of Service

I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 3rd day of August, 2018, to: Complainants(s) counsel and/or Complainant, the County Assessor and/or Counsel for Respondent and County Collector.

 

Jacklyn Wood

Legal Coordinator

[1] Exhibit 1 contained photographs of the subject property.  Complainant requested that the photographs be removed.  Respondent consented.  Hearing Officer viewed the photographs and returned them to Respondent.