State Tax Commission of Missouri
LOWE’S HOME CENTERS, INC.,)
)
Complainant,)
)
v.)Appeal Number 06-70501
)
DON STEEN, ASSESSOR,)
MILLER COUNTY, MISSOURI,)
)
Respondent.)
ORDER
AFFIRMING HEARING OFFICER DECISION
UPON APPLICATION FOR REVIEW
On November 9, 2007, Senior Hearing Officer W. B. Tichenor entered his Decision and Order (Decision) setting aside the assessment by the Miller County Board of Equalization and setting true value in money for Complainant’s property at $9,150,000, assessed value of $2,928,000.
Respondent timely filed his Application for Review of the Decision.Complainant timely filed its Response.
CONCLUSIONS OF LAW
Standard Upon Review
The Hearing Officer is not bound by any single formula, rule or method in determining true value in money, but 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 he may deem it entitled to when viewed in connection with all other circumstances.The Hearing Officer is not bound by the opinions of experts who testify on the issue of reasonable value, but may believe all or none of the expert’s testimony and accept it in part or reject it in part.St. Louis County v. Boatmen’s Trust Co., 857 S.W.2d 453, 457 (Mo. App. E.D. 1993); Vincent by Vincent v. Johnson, 833 S.W.2d 859, 865 (Mo. 1992);Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. 1991); Curnow v. Sloan, 625 S.W.2d 605, 607 (Mo. banc 1981).
The Commission will not lightly interfere with the Hearing Officer’s Decision and substitute its judgment on the credibility of witnesses and weight to be given the evidence for that of the Hearing Officer as the trier of fact.Black v. Lombardi, 970 S.W.2d 378 (Mo. App. E.D. 1998); Lowe v. Lombardi, 957 S.W.2d 808 (Mo. App. W.D. 1997); Forms World, Inc. v. Labor and Industrial Relations Com’n, 935 S.W.2d 680 (Mo. App. W.D. 1996); Evangelical Retirement Homes v. STC, 669 S.W.2d 548 (Mo. 1984); Pulitzer Pub. Co. v. Labor and Indus. Relations Commission, 596 S.W.2d 413 (Mo. 1980); St. Louis County v. STC, 562 S.W.2d 334 (Mo. 1978); St. Louis County v. STC, 406 S.W.2d 644 (Mo. 1966).
DECISION
A review of the record in the present appeal provides support for the determinations made by the Hearing Officer.There is competent and substantial evidence to establish a sufficient foundation for the Decision of the Hearing Officer.A reasonable mind could have conscientiously reached the same result based on a review of the entire record. The Commission finds no basis to support a determination that the Hearing Officer acted in an arbitrary or capricious manner or abused his discretion as the trier of fact and concluder of law in this appeal.Hermel, Inc. v. STC, 564 S.W.2d 888 (Mo. 1978); Black v. Lombardi, 970 S.W.2d 378 (Mo. App. E.D. 1998); Holt v. Clarke, 965 S.W.2d 241 (Mo. App. W.D. 1998); Smith v. Morton, 890 S.W.2d403 (Mo. App. E.D. 1995); Phelps v. Metropolitan St. Louis Sewer Dist., 598 S.W.2d 163 (Mo. App. E.D. 1980).
Respondent’s Grounds Supporting Application for Review
Respondent set forth the following grounds in his Application for Review:
(1) The Hearing Officer failed to accord the assessor’s assessment the presumption to which it is to be properly accorded under the law and permitted the same to be improperly rebutted;
(2) The Hearing Officer improperly assumed and accepted Complainant expert’s theory without any sufficient basis that the subject property has it highest and best use as a big box store;
(3) The Hearing Officer disregarded that the Complainant’s expert had disregarded or failed to obtain relevant comparable land values as part of his valuation;
(4) The Hearing Officer disregarded that the Complainant’s expert underpinned his valuation findings with assumptions based upon broad regional market conditions for Lowe’s and similarly situated retailers;
(5) The Hearing Officer erred in not allowing Respondent’s counsel to cross examine Complainant’s expert concerning the effect of the subject property’s situs within a tax increment financing district;
(6) The Hearing Officer erred in not allowing Respondent’s Counsel to review, inquire into and cross examine upon Complainant expert’s workfile;
(7) The Hearing Officer erred in sustaining Counsel for Complainant’s objection to Counsel for Respondent’s cross examination questions seeking the substance of conversations or communications within the knowledge of Complainant’s expert concerning opinions of value by the subject property’s owner or agents; and
(8) The Hearing Officer erred in his ruling sustaining objection to conversations with Complainant’s expert by Lowe’s owner or agent in that an owner’s opinion of value should be admissible as relevant to the question of value and should have been admitted on cross examination as an admission by a party opponent.
Decisions on Grounds Presented for Appeal
The Commission will address each of the grounds raised by Respondent as a basis for overturning the Decision of the Hearing Officer
Assessor’s Presumption
Respondent asserts that the Hearing officer “failed to accord the assessor’s assessment the presumption to which it is properly accorded under the law.”Respondent did not go on to provide any further or specific explanation of the assertion.The Commission finds that the Hearing Officer properly set forth the controlling law with regard to the presumption of correct assessment (See, Decision, p. 4-5; Presumptions in Appeals, and cases cited therein).
The general presumption of correct assessment is a rebuttable presumption.As a rebuttable presumption the burden was on Complainant to present substantial and persuasive evidence on the issue of fair market value of Complainant’s property.When the taxpayer meets the burden of proof, the presumption has been rebutted and can be accorded no further probative weight.The presumption does not constitute evidence of fair market value.
In the present appeal, the only evidence in the record on the sole issue of true value in money was the Maier appraisal, submitted by the Complainant.A review of the evidence establishes that as determined by the Hearing Officer that appraisal constituted substantial and persuasive evidence of the fair market value of the Lowe’s property.There is no basis in the record or in Respondent’s Application for Review to conclude that the Hearing Officer erred in his application of the facts to the controlling law on the matter of the presumption of correct assessment.
Respondent further asserted that the Hearing Officer permitted the presumption “to be improperly rebutted.However, there is no explanation of how the presumption was permitted to be “improperly rebutted.”The presumption was rebutted by the Maier appraisal and testimony.Respondent filed no objections to the Maier appraisal (Exhibit A) or the written direct testimony of Mr. Maier (Exhibit B).No exhibits were filed rebutting any of the conclusions and findings set forth in either Exhibit A or Exhibit B.
The Maier appraisal and testimony were properly received into the record and were therefore properly before the Hearing Officer for his consideration.The Hearing Officer determined Complainant’s evidence met the standard of substantial and persuasive to rebut any presumption of correct assessment and to establish value.There is no evidence in this record upon which the Commission can conclude that the Hearing Officer’s determination was in excess of the authority of the Commission in hearing appeals.There is no evidence to establish that the Hearing Officer’s admission into evidence of Complainant’s exhibits was arbitrary or capricious.The determination that Exhibits A and B constituted competent, substantial and persuasive evidence is in no way demonstrated to have been an abuse of discretion by the Hearing Officer.The record fails in any way to show that the admission into evidence of the Maier appraisal and testimony was a violation of proper procedure in appeals before the Commission.
The Hearing Officer did not err in his determinations as challenged by Respondent.The conclusion that the presumption of correct assessment was rebutted was founded upon competent, substantial and persuasive evidence.
Highest and Best Use of Subject Property
The next ground that Respondent puts forth in support of his Application for Review is that the Hearing Officer erred in accepting Mr. Maier’s conclusions with regard to the highest and best use of the subject property.Respondent offered no evidence on the issue of highest and best use.The Hearing Officer was presented with only the analysis and conclusions of Complainant’s expert.
The Maier analysis and conclusions are found at pages 35 – 38 of Exhibit A.Mr. Maier also addressed highest and best use at page 4 of Exhibit B.The appraiser did his highest and best use analysis on Complainant’s property both As If Vacant and As Improved.The Maier analysis considered the four established criteria for highest and best use, i.e. physically possible, legally permissible, financially feasible and maximum profitability.There is nothing in Exhibit A or B which supports of conclusion of an improper analysis on highest and best use.
Counsel for Respondent only made a single inquiry on cross-examination on the issue of highest and best use.Tr. 27:23 – 28:1.
“Mr. Howard:And, I mean, but- -in fact, the high- -And as I understand, you’re- -you’re of the mind that the highest and best use of this particular tract of realestate, either vacant or improved is for something like a Lowe’s store, correct?
Mr. Maier:That’s correct.”
There was no further inquiry or discussion by Counsel for Respondent on this issue.The Hearing Officer provided no specific discussion in the Decision on the issue of highest and best use.Since no issue was raised by Respondent either prior to or at the evidentiary hearing as to the correctness of the Maier analysis and conclusions on highest and best use there was no need for the Hearing Officer to address the matter.The only evidence as to highest and best use of the subject property was that provided by Complainant’s expert.Respondent did not challenge the expert on this point or offer any evidence to refute the Maier conclusions.Therefore, the Hearing Officer did not err in accepting the only evidence on highest and best use before him.
Relevant Comparable Land Values
Respondent’s third point asserts that the Hearing Officer erred in not recognizing that Mr. Maier disregarded or failed to obtain relevant comparable land values.The Maier appraisal developed the cost approach by first establishing land value.See, Exhibit A, pp. 40-48; Exhibit B, pp. 4-5.Mr. Maier presented detailed information on the land sale comparables (Exhibit A, pp. 40-44; Addendum A) and explanation of the various adjustments needed in the appraisal problem (Exhibit A, pp. 45 – 46).Finally, the appraiser set out his Land Sales Adjustment Grid
in support of his land value conclusion.Exhibit A. p. 47.He testified under cross-examination as to his development of his estimate of land value.See, Tr. 6:1 et seq.
Respondent did not offer any evidence to establish land value for the subject property under a cost approach.Respondent did not offer any rebuttal evidence on the issue of Mr. Maier’s conclusion as to land value.Counsel for Respondent in his Application for Review makes the general assertion that the Hearing Officer “disregarded the fact that complainant’s expert had disregarded or failed to obtain relevant comparable land values as part of his valuation.”However, the Application for Review fails to state in any particular how the four land sales utilized by Mr. Maier were not “relevant comparable land values.”
Assertions made by Counsel in an Application for Review do not constitute evidence.There is no evidence on this record whereby the Hearing Officer could have or should have concluded that the land sales presented by the appraiser were not relevant comparable land sales.Furthermore, it is readily apparent that neither Mr. Maier, nor the Hearing Officer placed any weight on the Cost Approach to value.The Appraiser so testified at lines 10 – 16 of Tr. 21.The conclusion of value under the Cost Approach was $8,430,000.The Hearing Officer’s Decision set the value at $9,150,000 the value determined under the Sales Comparison Approach.
The Hearing Officer did not err in his Decision as alleged by Respondent, since the value derived under the Cost Approach was not relied upon in reaching the indicated value.
Broad Regional Market Conditions
Respondent next argues the Hearing Officer erred in disregarding that the Complainant’s expert underpinned his valuation findings with assumptions based upon broad regional market conditions for Lowe’s and similarly situated retailers.In this instance as in other allegations made in the Complaint for Review of Assessment, Counsel failed to direct the Commission’s attention to where in the record there was evidence from which the Hearing Officer could have concluded that Mr. Maier’s sales comparison methodology was in error on this point.Furthermore, this ground is not explained to establish what assumptions made by the appraiser were in fact in error and should have been “disregarded” by the Hearing Officer.
Respondent points to no evidence in this record providing a foundation for his claim. A review of the record fails to show any evidence upon which the Hearing Officer could have properly concluded that the appraiser’s reliance upon actual market conditions was in error. Absent evidence from the record to support the argument presented, there is no basis to conclude any error on the part of the Hearing Officer in placing probative weight upon the sales comparison approach to value as developed and documented by Exhibit A.See, pp. 53 – 84; Exhibit B, pp. 6 – 8.
Cross Examination on TIF District
Respondent next claims the Hearing Officer erred in not allowing Respondent’s counsel to cross examine Complainant’s expert concerning the effect of the subject property’s situs within a tax increment financing district.The exchange on the record relative to the Hearing Officer’s ruling was as follows:
“Q.Well, that’s not what–what I’m referring to, and I’m not trying to put you on the spot.There’s a, what we call a TIF District, Tax Implement Financing District in place that–that–that developing property is—
MR. TENENBAUM:Objection, Your Honor.I don’t believe any of this is appropriate to cross-examination since it’s not mentioned in either of the exhibits.It’s all purely speculative.The witness has already testified that he has no knowledge of any such district, so I don’t see any further sense in continuing that line of questioning.
HEARING OFFICER TICHENOR:Sustained.
MR. HOWARD:Your Honor, I–He–He answered the question, I believe, he was not aware of any other assessments.I was trying to rephrase to ask a different question as to whether or not he was aware–aware of whether the subject site was contained within a TIF district.And I think that’s a different question, and I think it may have some—
MR. TENENBAUM:Well, same objection, Your Honor.I don’t see what–how that would relate to the value of the subject property.
HEARING OFFICER TICHENOR:Can you give me some indication—
MR. HOWARD:Your Honor—
HEARING OFFICER TICHENOR:–Mr. Howard of how it’s relevant to the valuation of the subject property, that there’s a TIF district out here.
MR. HOWARD:Well, I think that if–if the property is contained within a TIF district, and–and you know what those are—
HEARING OFFICER TICHENOR:Yes, I do.
MR. HOWARD:–you don’t–I’m sorry for the side talk.But it would be my thinking, and what I want to ask Mr. Maier is, that if you have a piece of property that’s within a TIF district, the purpose behind the TIF district is to allow the tax dollars collected from the improvements to be used by the developer or the TIF commission that
the oversight of the TIF district, to pay for the infrastructure and the improvements to the district where–which is where the property is going to reside.
And it makes sense to me at least, that if you can sell somebody a piece of vacant land in a TIF district, if you’re the developer you can sell it for quite a little bit cheaper than you can sell it if you had to go in there and develop, and have the infrastructure in place out-of-pocket on a speculation basis, and then tried to attract the–the tenants.
HEARING OFFICER TICHENOR:Mr. Howard, it–it’s–it’s a fine assumption on your part.It may, in fact, be the case.There’s absolutely no evidence in this record that would support any of that conclusion.And since this witness did not address the issue, the objection is sustained.
HEARING OFFICER TICHENOR:But that–that’s the purpose–the purpose of my inquiry is to ask whether he knows about that, and whether he should have included that assumption.
MR. TENENBAUM:I–I object, Your Honor.
HEARING OFFICER TICHENOR:The objection is still sustained.He did not address it, and there is no data from which that question, in my opinion, can be built.There’s no foundation in this record that because of the existence of a TIF district, that we don’t know what impact it has on this property, that we then are–you essentially are asking me then to draw some conclusion that the appraiser somehow erred in his appraisal because of not addressing this issue.And I don’t have sufficient data to support the foundation for that question to be asked I do not believe.The objection is sustained.”
Tr. 17:12 – Tr. 19:10.
Counsel for Respondent presents nothing in the Application for Review addressing the critical issue of the evidentiary foundation for the question he wished to pose.The assertion is that the Hearing Officer erred in sustaining the objection, however, Respondent’s Counsel does not establish any factual argument in support of the assertion.Putting forth an unsupported argument does not establish the error claimed.There is no reference given to any place in Exhibit A or B where Mr. Maier raised the issue of a TIF.
However, more telling, no evidence was presented by Respondent supporting the claim Counsel made at hearing and that he is asserting in the Application for Review.If Respondent had market evidence to establish the foundation for his Counsel’s line of questioning on this point, it should have been submitted as a part of the Respondent’s case in chief.The Hearing Officer did not err in his ruling on the objection.Respondent presented no evidence either for his direct case or as rebuttal evidence on this point.The Hearing officer was clearly correct in not permitting Counsel to engage in a line of questioning based upon nothing other than speculation and conjecture.
Appraiser’s Work File
The Hearing Officer erred in not allowing Respondent’s Counsel to review, inquire into and cross examine upon Complainant expert’s work file.The inquiry, by Mr. Howard that occurred relative to Mr. Maier’s work file was as follows:
Q.Do you have a–a–a work file that you’ve prepared and that meets the Uniform Standards of Professional Appraisal Practice Standards in connection with this appraisal?
A.My report does.
Q.Okay.Do you have a separate—
A.Yes, I have a—
Q.–work file?
A.–separate file.
Q.Okay.Did you bring that with you today?
A.No, I didn’t.
Tr. 38:17 – Tr. 39:1.
Counsel for Respondent has misstated the point raised as a claimed error on the part of the Hearing Officer.The testimony shows that Mr. Maier did not have his work file with him during cross-examination.The reason that Respondent’s Counsel could not “review, inquire into and cross-examine upon Complainant expert’s work file” was not that the Hearing Officer ruled Counsel could not.The work file was not present at the hearing for Counsel to review, inquire into or cross-examine upon.Had Respondent’s Counsel desired to review and inquire into and cross-examine upon Complainant expert’s work file, appropriate discovery was available for that purpose.The Hearing Officer committed no error on this matter.
Complainant’s Opinion of Value
The Hearing Officer erred in sustaining Counsel for Complainant’s objection to Counsel for Respondent’s cross examination questions seeking the substance of conversations or communications within the knowledge of Complainant’s expert concerning opinions of value by the subject property’s owner or agents.Counsel for Respondent does not set forth where in the record the foundation for this claimed error exists.However, apparently the exchange he is referring to was as follows:
Q.If–Who–Now can you tell me, when you received the request to act as the appraiser and prepare this analysis and report, did you talk to anybody at Lowe’s, or who–who contacted you and told you that they were wanting to have an appraisal done?
A.Brad Renollet, the individual that the report is addressed to.He’s a–a tax representative that I believe did a review of all of the Lowe’s store in–Lowe’s stores in Missouri.
Q.Okay.I mean, do you know, is–is Mr. Renollet’s firm, or the Lowe’s, I mean, are they concerned that the assessor is trying to overvalue this store?Did they talk to you about that?
MR. TENENBAUM:Objection, Your Honor.There’s no foundation laid for Mr. Maier having any knowledge about what Lowe’s thinks about value–the assessor’s valuation.Mr. Maier’s task here was to prepare a report indicating his opinion of the fair market value of the property, which he–which he has done.Whatever Lowe’s might think about the value of the property is another subject entirely.
MR. HOWARD:Well, I think I’m inquired (sic) to inquire of him the–the terms and arrangements upon which he was–of which he was hired, and I–you know, I appreciate counsel’s statements.
HEARING OFFICER TICHENOR:I believe that’s in one of the addendums.I believe that’s in one of the addendums, what his arrangements were on–on–on the cost for the appraisal.
MR. HOWARD:Well, I’m–I’m trying to inquire of him of whether or not there were—
HEARING OFFICER TICHENOR:I’m not–I’m not understanding, Mr. Howard, where you’re going with it.And–But I want to give you an opportunity to comment before I rule on the objection.
MR. HOWARD:Well, I’m–I’m asking–I think I’m entitled to inquire of him whether there’s information that’s been communicated to him that’s not set forth in the addendum that represents some expectation of Lowe’s, or the firm that hired him, that he was asked to verify, or to confirm, or consider before he made his final judgment and rendered his opinion.
HEARING OFFICER TICHENOR:Is what?I’m still not understanding the–the question.Is what you’re attempting to get is whether his instructions from Mr., who is the gentleman that the—
MR. TENENBAUM:Renollet.
HEARING OFFICER TICHENOR:Renollet, instructed him specifically as to a value to arrive at?
MR. HOWARD:No, I’m–I—
HEARING OFFICER TICHENOR:Okay.
MR. HOWARD:I want to find out whether, you know, there was a conversation, or information communicated that indicated that Lowe’s or Mr. Renollet was not happy with the assessor’s appraisal of the property, and–and asked you to confirm their belief, or their suspicion, that it was too high.
HEARING OFFICER TICHENOR:Objection is sustained.It has no relevance whatsoever.And whether or not the witness has any knowledge of it, I don’t even want to go there.This proceeding speaks for itself, but for Lowe’s feeling the property is overvalued, we would not be here today.
Tr. 36:2 – 37:22.
Counsel for Respondent states his argument in terms of seeking the substance of communications concerning an opinion of value by the subject property’s owner or agents.However, that misstates the exchange that took place on the record.When Counsel finally formulated his point of inquiry it was relative to a communication indicating Lowe’s was not happy with the assessor’s appraisal of the property and wanting Mr. Maier to confirm Lowe’s belief the value was too high.There was nothing in the exchange inquiring as to Lowe’s opinion of value for the property.
It is self-explanatory that the opinion of value being offered on the taxpayer’s behalf was the opinion developed by Mr. Maier.It is likewise self-evident that Lowe’s was not happy with the value placed on the property by the Assessor, else it would not have gone to the time, trouble and expense of retaining an appraiser and legal counsel to prosecute their claim of overvaluation.The line of questioning did nothing to advance the inquiry on the issue of the fair market value of the property.
The Hearing Officer was correct that inquiries into motivations for appeals are irrelevant.Counsel for Respondent failed to demonstrate how any information that might have been deduced from his inquiry would have proven anything of substance on the issue of true value in money.The stating of the argument does not establish a legal basis to find the Hearing Officer erred in his ruling.No citation to a rule of evidence or case was given providing a foundation to find the Hearing officer erred on this point.
Admission of Party Opponent
The Hearing Officer erred in his ruling sustaining objection to conversations with Complainant’s expert by Lowe’s owner or agent in that an owner’s opinion of value should be admissible as relevant to the question of value and should have been admitted on cross examination as an admission by a party opponent.Again, Respondent fails to provide an reference to the evidentiary record on this point.It is assumed that this argument comes from the line of questioning set forth from the Transcript under the preceding argument.
It is noted that Counsel for Respondent raised no claim at the time of the ruling relative to a claimed admission by a party opponent.There was no claim as to an offer of proof concerning some asserted admission.The Hearing officer was within sound discretion to consider the line of inquiry as little more than speculation that some “admission” might have been made.In this Application for Review there is nothing setting forth what the alleged “admission by a party opponent” would have been.Nothing is established in the Application for Review or in the record to demonstrate how any claimed admission would have rebutted the conclusion of value reached by Mr. Maier.
In other words, no foundation was laid to establish that some unspecified representative of Lowe’s with authority to proffer an opinion of value had done so in some out of court statement.The line of questioning pursued by Counsel for Respondent was entirely speculative in nature, seeking to essentially conduct discovery, when discovery on such a point should have been done prior to cross-examination of the Complainant’s expert.Respondent presented no case citation upon which it could be concluded that the Hearing Officer erred in his ruling on the matter.
Summary
None of the points raised by Respondent provide a basis to overturn or modify the Hearing Officer Decision.The conclusion reached in the Decision was founded upon an appraisal developed in accordance with recognized standards for valuation of property for ad valorem tax purposes.No evidence was presented which rebutted any of the underlying data in the appraisal.The Hearing Officer had a sound basis for concluding on the true value in money as proposed by Complainant’s expert.
ORDER
The Commission upon review of the record and Decision in this appeal, finds no grounds upon which the Decision of the Hearing Officer should be reversed or modified.Accordingly, the Decision is affirmed.
Judicial review of this Order may be had in the manner provided in Sections 138.432 and 536.100 to 536.140, RSMo within thirty days of the date of the mailing of this Order.
If judicial review of this decision is made, any protested taxes presently in an escrow account in accordance with this appeal shall be held pending the final decision of the courts.If no judicial review is made within thirty (30) days, this decision and order is deemed final and the Collector of Miller County, as well as the collectors of all affected political subdivisions therein, shall disburse the protested taxes presently in an escrow account in accord with the decision on the underlying assessment in this appeal.The Commission will issue its Order so advising the Collector if a petition for judicial review is filed.If any or all protested taxes have been disbursed pursuant to Section 139.031(8), RSMo, either party may apply to the circuit court having jurisdiction of the cause for disposition of the protested taxes held by the taxing authority.
SO ORDERED March 25, 2008.
STATE TAX COMMISSION OF MISSOURI
Bruce E. Davis, Chairman
Jennifer Tidwell, Commissioner
Charles Nordwald, Commissioner
DECISION AND ORDER
HOLDING
Decision of the Cole County Board of Equalization sustaining the assessment made by the Assessor is SET ASIDE.Hearing Officer finds presumptions of correct assessment rebutted. True value in money for the subject property for tax year 2006 is set at $9,150,000, assessed value of $2,928,000.
Complainant appeared by Counsel, Wayne A. Tenenbaum,Leawood,Kansas.
Respondent appeared in person and by Counsel, Matthew F. Howard, Prosecuting Attorney.
Case heard and decided by Senior Hearing Officer W. B. Tichenor.
ISSUE
The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2006, under the economic conditions as existing on January 1, 2005.
SUMMARY
Complainant appeals, on the ground of overvaluation, the decision of the Miller County Board of Equalization, which sustained the valuation of the subject property.The Assessor determined an appraised value of $12,472,231, assessed value of $3,991,114, as commercial property.Complainant proposed a value of $9,150,000, assessed value of $2,928,000.A hearing was conducted on October 23, 2007, at the Miller County Courthouse,Tuscumbia,Missouri.Transcript was received by the Hearing Officer on October 31, 2007.
The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.
Complainant’s Evidence
Complainant offered into evidence, Exhibit A, a Self-Contained Appraisal Report by Gerald R. Maier, MAI, Missouri State Certified General Real Estate Appraiser, and Exhibit B, the written direct testimony of Mr. Maier.No objections were filed to Exhibits A and B.Both exhibits were received into evidence.
Respondent’s Evidence
Respondent tendered as evidence the following exhibits:
Exhibit 1 – Assessor’s Property Record Card on the subject property
Exhibit 2 – Aerial map of the subject property development
Exhibit 3 – Valuation Estimate Information provided by developer
Exhibit 4 – Comparable data for Jefferson City Lowe’s store.
Objections were timely filed to exclude Exhibits 1, 3 and 4 from evidence.By order, dated September 20, 2007, the objections were sustained and the exhibits excluded from evidence.No objection was filed as to Exhibit 2 and it was received into evidence.
FINDINGS OF FACT
1.Jurisdiction over this appeal is proper.Complainant timely appealed to the State Tax Commission from the decision of the Miller County Board of Equalization.
2.The subject property is located at 950 Highway 42, Osage Beach, Missouri.The property is identified by parcel identification number 14-3.0-51-000-000-035-000.The property consists of 12.20 acres, improved by a single-tenant (owner) retail warehouse structure containing 135,586 square feet of gross building size and net rentable area.The site also includes the necessary support parking, lighting, sidewalks, docks and other amenities ordinarily associated with such retail warehouse properties.The improvements were constructed in 2001.It has been utilized as a Lowe’s home improvement store and warehouse since 2001.Exhibits A & 1.
3.The development of the subject property by Lowe’s was not as a real estate investment, but as a facility where Lowe’s would be able to sell its products and make a return on and of its investment from a retail commercial enterprise.Tr. 27: 15 – 28: 13.
4.There was no evidence of new construction and improvement from January 1, 2005, to January 1, 2006.
5.The valuation by Complainant’s appraiser as January 1, 2006, does not fatally flaw the analysis and conclusion of value reached and is sufficient for a finding of value as of January 1, 2006, under the economic conditions as existing on January 1, 2005.See, Valuation Date, infra.
6.Complainant’s evidence was substantial and persuasive to rebut the presumptions of correct assessment by the Assessor and the Board and establish the true value in money as of January 1, 2006, to be $9,150,000.
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.Article X, section 14, Mo. Const. of 1945; Sections 138.430, 138.431, RSMo.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.Section 138.431.4, RSMo.
Presumptions In Appeals
There is a presumption of validity, good faith and correctness of assessment by the CountyBoardof 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).
The presumption in favor of the Board is not evidence.A presumption simply accepts something as true without any substantial proof to the contrary.In an evidentiary hearing before the Commission, the valuation determined by the Board, even if simply to sustain the value made by the Assessor, is accepted as true only until and so long as there is no substantial evidence to the contrary.
Notwithstanding the provision of Section 138.431.3, RSMo – “There shall be no presumption that the assessor’s valuation is correct,” – the Supreme Court of Missouri has held, “A tax assessor’s valuation is presumed correct.”Snider v. Casino Aztar/Aztar Missouri Gaming Corp., 156 S.W.3d 341 (Mo. 2005).Citing to Hermel, supra; and Cupples Hesse Corp. v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).
The presumption of correct assessment is rebutted when the taxpayer presents substantial and persuasive evidence to establish that the assessor’s and/or Board’s valuation is erroneous and what the fair market value should have been placed on the property.Snider, Hermel & Cupples Hesse, supra.Complainant’s evidence, as is discussed below, met the standard of substantial and persuasive to rebut the presumption of correct assessment by the Assessor/Board and prove value.
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.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).It is the fair market value of the subject property on the valuation date.Hermel, supra.
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 is 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 each 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.
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.
Mr. Maier properly developed his valuation of Complainant’s property applying the Standard of Value recognized by the courts and utilized by the Commission in its decisions.Exhibit A: 8; Exhibit B.The Maier appraisal concluded on an indicated value under the hypothetical sale and purchase by a willing seller and willing buyer of the fee simple interest in the Lowe’s property.The property is owned in fee simple and not under a leased fee situation.
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, at 615 (Mo. App. W.D. 2000); Hermel, supra; Xerox Corp. v. STC, 529 S.W.2d 413 (Mo. banc 1975).
Missouricourts 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. Div. 2 1974).
Complainant’s appraiser developed the three accepted approaches to arrive at an indicated fair market value.The appraisal was prepared in conformity with the Uniform Standards of Professional Appraisal Practice.Each approach to value was developed in accordance with the generally accepted guidelines and standards which the Hearing Officer expects to see followed in an appeal before the Commission.Exhibit A: 39 – 116; Exhibit B.Mr. Maier properly performed a reconciliation and final value estimate in support of his conclusion of value.Exhibit A: 117-118, Exhibit B: 10 – 11.
Opinion Testimony by Experts
If specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert on that subject, by knowledge, skill, experience, training, or education, may testify thereto.
The facts or data upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reliable, the facts or data need not be admissible in evidence.Section 490.065, RSMo; State Board of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. SC. 2004); Courtroom Handbook on Missouri Evidence, Wm. A. Schroeder, Sections 702-505, pp. 325-350; Wulfing v. Kansas City Southern Industries, Inc., 842 S.W.2d 133 (Mo. App. E.D. 1992).
The data relied upon by Complainant’s appraiser were of the types reasonably relied upon by real estate appraisers in performing the recognized approaches to value.Mr. Maier’s supporting data were of the kinds which appraisal experts utilize in forming opinions, inferences and conclusions when appraising a property such as the subject.The data set forth and referenced in the Maier appraisal were reliable for utilization in the present appraisal problem.
Valuation Date
Assessment of real property in Missouriis under a two-year assessment cycle.The assessor is to value property as of January 1, of the odd-numbered year.The assessed value established for the odd-numbered year, remains the value for the following even-numbered year in the absence of new construction and improvement to the property.Section 137.115.1, RSMo; 12 CSR 30-3.001(1).
When an appeal comes before the Commission in an even-numbered year, the Commission’s decision cannot go back and change the value for the preceding odd-numbered year.Therefore, in such an instance, the value concluded in a Commission decision can only be applicable to the even-numbered year.It has generally been the practice of the Hearing Officer to refer to the valuation date in even-numbered year appeals as January 1st of the even-numbered year, as he did in this appeal.Tr. 2:17-18.
From a technical statutory stand point, January 1st of the odd-numbered year is the effective date for valuation, in both odd- and even-numbered appeals.However, in the absence of affirmative evidence to establish that economic conditions dictate a valuation difference between the odd- and even-numbered year, an effective date of an appraisal of January 1st of the even-numbered year, is not fatally flawed to establish fair market value for the preceding odd-numbered year.
There is no evidence in the record from which the Hearing Officer could conclude that
the value for January 1, 2005, and January 1, 2006, would have been significantly different from the value conclusion made by Complainant’s appraiser.Based upon the appraiser’s testimony and the review of the appraisal, the Hearing Officer is persuaded that the valuation would not be significantly different, valuing the property as of January 1, 2005.
Exhibit A – Sales Comparison Analysis
The improved sales (fee simple sales) referenced on page 70 of Exhibit A sold in a range from March 2000 to September 2005.Mr. Maier made upward adjustments to each sale for time and market conditions.The adjustments were based on a 3% per year factor to account for the passage of time between each sale and the effective appraisal date.Exhibit A., p. 67.
A valuation for 1/1/05 instead of 1/1/06 would have simply resulted in smaller adjustments for this factor, which would have produced a lower indicated value for each sale.None of the other adjustments would have been impacted by a different effective date of one year.Therefore, the indicated value for a 1/1/05 effective date might have been slightly less under the Improved Sales Analysis performed at pages 68 – 71.
The valuation of a second set of improved sales (leased fee sales) performed at pages 81 to 83 sold in a range of dates from February, 2003 to February, 2007.The time market adjustments made for these sales for a 1/1/05 instead of a 1/1/06 effective date would have resulted in slightly lower adjustments for sales occurring prior to 2005 and slightly higher adjustments for sales occurring after 2005.The net effect, if any, on the final concluded indicated price per square foot would seem to be minimal, with the slight differences in the time/market adjustments simply off setting each other.
Exhibit A – Income Approach Analysis
A review of the income approach shows that as with Complainant’s sales comparison analysis, the time/market condition adjustment made on the Comparable Rentals Adjustment Grid (Exhibit A, p. 97) would only be lowered if an effective date of 1/1/05 were to be used instead of 1/1/06.All of the expense base years and lease dates for the rental comparables were prior to 1/1/05.Therefore, the adjusted price per net rentable square footage for each comparable would be slightly less than that arrived at in the Maier appraiser if the effective date were 1/1/05.The net effect, if any, would appear to be a slightly lower indicated value under the income approach.
Conclusion
By using an effective date of January 1, 2006, instead of January 1, 2005, Complainant’s appraiser did not undervalue the subject property.If any thing, the property might be slightly overvalued when looking at a 2005 valuation date.In the absence of affirmative evidence to establish that the value conclusion for 2006 would be significantly different than a value conclusion for the preceding 2005, the effective date utilized by Mr. Maier of January 1, 2006 has no material impact in this appeal.
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, 2005.Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, at 897.Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.See, Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).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.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).
Complainant’s evidence met the necessary standard of substantial and persuasive on the issue of fair market value of the subject property.
Maier Appraisal
Approaches to Value
Mr. Maier developed the Cost, Sales Comparison and Income Approaches to value.Exhibit A: 40 et seq.; Exhibit B.He gave moderate consideration to the Cost Approach.His Reconciliation and Final Value Estimate gave greater weight to the Sales Comparison Approach, as supported by the Income Approach.Exhibit A: 117-118; Exhibit B.Each of the approaches was appropriately developed and adequately supported so as to establish a sound estimate of valuation.
Fee Simple versus Leased Fee
Complainant’s appraiser provided a detailed analysis of the appraisal problem presented in the present appeal.Mr. Maier recognized the need to distinguish between a valuation of the fee simple interest in the property and a leased fee interest.This is of great significance since a conclusion of value based upon a leased fee analysis misrepresents what the actual status of the Lowe’s property was on the valuation date.
The property under appeal is owner occupied.It is not the subject of a long term lease.It was developed by the owner not as an investment in real estate.Rather, the property was developed by Lowe’s in order to create a stream of income from the sale of merchandise.The stream of income produced by the subject facility is not based upon the rental income from a leased fee property.
Mr. Maier’s analysis provides an excellent comparison of the crucial difference between a fee simple value and a leased fee value.It is without contradiction that in a hypothetical sale on the valuation date that the prospective purchaser of the subject property would only be buying the real property, because there was not in place a long term lease to Lowe’s.If the property had been under a long term lease to Lowe’s on the valuation date, then the hypothetical buyer would be purchasing, not the fee simple (real estate), but the leased fee.The prospective purchaser under the leased fee scenario would actually be purchasing the real property and the stream of income from the rental of the real estate to Lowe’s for the operation of its retail enterprise.As Mr. Maier developed and presented in an excellent manner, the leased fee value would be far greater than the fee simple value which could be realized.
Assumption and Limiting Condition
In addition to the general assumptions and limiting conditions which one generally expects to see in a self-contained appraisal report, Mr. Maier performed the appraisal under the following Assumption and Limiting Condition – 20:
“As of the effective appraisal date, the subject property was 100% owner-occupied by Lowe’s.This analysis will conclude the market value for the subject property in fee simple estate.This market value conclusion specifically assumes that Lowe’s is not currently in occupancy but is in the market of potential users of the property.”Exhibit A:5.
This is an assumption that under the hypothetical willing seller – willing buyer transaction the subject property would be occupied by a moderate credit tenant and that Lowe’s is in the market for the property.A value estimate assuming the property was vacant on the valuation date would be less than that concluded under Assumption 20.Exhibit A: 118.Such an assumption was appropriate for the present appraisal problem, as it is a means of recognizing the fact that on the valuation date Lowe’s was occupying the property.
Cost Approach
The appraiser’s development of the Cost Approach provided a sound basis for valuation.Exhibit A: 41 – 52.The vacant land sales were appropriately documented and adjusted to arrive at a conclusion of land value to be used in the Cost Approach.
The estimate of replacement cost properly addressed the factors of Entrepreneurial Profit, Depreciation, Functional and External Obsolescence.The calculation of the External Obsolescence factor reflected the fact that speculative development of the subject facility is not feasible.The projected net operating income that could be expected for rental of the subject, absent a long term lease by Lowe’s, would not provide a sufficient income stream to justify the purchase of the land at the indicated value and the construction of the improvements.Exhibit A: 50 – 52.
Sales Comparison Approach
The Sales Comparison Approach developed by Mr. Maier also provided substantial and persuasive evidence to establish fair market value.Exhibit A: 53 – 85; Exhibit B.A total of fifty-nine sale properties were considered for the development of the sales comparison analysis.The appraisal problem was researched by the appraiser focusing on properties with improvements in excess of 100,000 square feet, although properties will smaller improvement size were also considered.Mr. Maier divided the sales into six different groups for purposes of analysis.These groupings were: (1) Build-to-Suit Sale/Leasebacks; (2) Build-to-Suit Sales; (3) Later Term Leased Fee Sales; (4) Second Generation Leased Fee Sales; (5) Partial Leased Fee Sales; and (6) Fee Simple Sales.
Fee Simple Sales Comparison
There were a total of nineteen fee simple sales which the appraiser analyzed.He settled on eight sales for use in his fee simple sales comparison.Adjustments were made, as warranted for Time/Market Conditions, Age/Condition, Location, Improvement Size and Construction Quality.The adjusted prices per gross building square foot (GBSF) ranged from $24.04 to $53.38, with a mean of $41.45.Mr. Maier settled on a per GBSF value of $67.50.This resulted in an indicated value of $9,150,000.Exhibit A: 57 – 70.
Leased Fee Sales Comparison
Mr. Maier also did an analysis of Late Term and Second Generation Leased Fee Sales.This included consideration of a total of four sale properties.A total of nine properties were then adjusted, as warranted for Age/Condition, Location, and Construction Quality. The adjusted prices per gross building square foot ranged from $48.06 to $87.36, with a mean of $68.79.Mr. Maier settled on a per GBSF value of $67.50.This resulted in an indicated value of $9,150,000.Exhibit A: 72 – 83.
Income Approach
Mr. Maier’s development of the Income Approach provided support to his valuation under both of the other accepted approaches.Exhibit A: 86 – 116.Although the subject property is not a rental property, the utilization of the Income Approach was appropriate based on sufficient market data being available to provide sound support for this methodology.
The appraiser researched the market and found rent comparables from three different categories.The three groups of leases were (1) first-generation leased space designed for the user; (2) second-generation tenants in big box structures renovated for the subsequent user; and (3) second-generation leases for big boxes taken on an as is basis.The term “big box” refers to structures like the subject or similar 100,000 square foot plus buildings usually occupied by large national retailers, such as Lowe’s, Home Depot, Kohl’s, Wal-Mart, K-Mart, Target, etc.First-generation leases would not be indicative of or suitable for establishing market rental rate for the subject.Only the second-generation leases would be reflective of the market for the subject, as a leased fee property.Exhibit A: 87 – 88.
Mr. Maier was able to locate forty-one properties which were in his 2nd and 3rd groups of leases.From these he selected eight properties to analyze in his Comparable Rentals Adjustment Grid.For these properties, the appraiser, where required, made adjustments for Time/Market Conditions, Lease Terms, Building/Suite Size, Ade/Condition, Location and Construction Quality.The adjusted market range per net rentable square foot (NRSF) was from $3.53 to $9.36, with the mean being $7.10.Mr. Maier concluded on $7.50 per NRSF for his income analysis.Exhibit A: 89 – 97. An analysis was done to determine an appropriate Vacancy and Credit Loss, as well Operating Expenses.Exhibit A: 99 – 103.The Overall Rate was developed from research and analysis of Market Capitalization Rates (20 sales), Investor Survey, Late Term Net Lease Transactions (9 sales) and Analysis of Fee Simple Sales (8 sales). Exhibit A: 104 – 115.The value concluded under the Direct Capitalization Method (Exhibit A: 114 – 115) was appropriately supported and developed by the Appraiser.
Reconciliation and Final Estimate
The appraiser concluded on the values for the Cost, Sales Comparison and Income Approaches as $8,430,000, $9,150,000 and $9,140,000 respectively.The final estimate of value was $9,150,000.The final conclusion of value assumed current occupancy by a tenant with moderate credit and a medium term (5 to 7 years) lease.Had the property been valued as if vacant and Lowe’s not being in the market of potential users the concluded estimate of value would have had to been significantly less than arrived at by Mr. Maier.Exhibit A: 118.
Summary and Conclusion
The valuation of Complainant’s property was required to be on a fee simple basis as was done by Mr. Maier.Had the property been the subject of a long term lease by Lowe’s, the value would have been higher than concluded by the Maier appraisal.It is possible that Complainant might not have appealed under a leased fee situation, since the valuation by the Assessor might have been fairly close to a lease fee value.
The appraisal presented on behalf of Complainant approached the valuation problem in an appropriate manner.The appraiser did a very complete and detailed analysis under each of the approaches to value.The data underlying each of the approaches was reasonably reliable and the type of data recognized and utilized by appraisers.The testimony provided at hearing by Mr. Maier further solidified the analysis and conclusions developed in the appraisal.
Respondent’s Excluded Exhibits
Exhibits 1, 3 and 4 which were excluded upon objection to their admission being made were not evidence to be considered in this case.However, a review of these documents shows that even if Counsel for Complainant had not made objection and moved to exclude that the Hearing Officer could have given o probative value to the documents for establishing fair market value.
Exhibit 1 – Property Record Card on Subject – provides the basis for the mass appraisal of Complainant’s property.However, without supporting documentation to demonstrate and establish the underlying assumptions and conclusions are representative of the market for the property under appeal, there is simply no probative value to the document.A mass cost valuation is not the same as a cost approach properly developed in either a summary or a self-contained appraisal.Very simply the property record card does not equate to an appraisal of the property which is probative in the face of the development of the three recognized approaches to value.
Exhibit 3 – Developer’s Cost Sheet – only purports to show the cost for land and the improvements when the subject property was developed.As has been demonstrated in this appeal cost does not equal fair market value.The information in this document which referred to the property under appeal, consisting of one line reading: GROUND$6,300,000.00, a second ling reading BUILDING $7,425,000.00 and the third line reading: $13,725,000.00 is not an appraisal or even a conclusion of market value as of January 1, 2006.While this document might be a part of the information which might be used in a properly developed cost approach, it is not a cost approach and could be given no probative value had it even come into evidence.
Exhibit 4 – Cole County Replacement Cost and Income Calculations – appears to be a document prepared by the Assessor’s Office of Cole County for its mass valuation of the Lowe’s property in Jefferson City.The mass valuation of a property in another county, irrespective that it is owned by the Complainant does nothing to establish fair market value in this appeal.This document, like Exhibits 1 and 3, had it not been objected to would have provided no basis upon which Complainant’s appraisal would have been rebutted.Furthermore, the valuation by ColeCountyhas been set aside by Decision issued this date in the case of Lowe’s Home Centers, Inc. v. Ordway, STC Appeal Number 06-52004.
Agencies shall take official notice of all matters of which the courts take judicial notice.Section 536.070(6), RSMo.Courts will take judicial notice of their own records in the same cases.State ex rel. Horton v. Bourke, 129 S.W.2d 866, 869 (1939); Barth v. Kansas City Elevated Railway Company, 44 S.W. 788, 781 (1898).In addition, courts may take judicial notice of records in earlier cases when justice requires – Burton v. Moulder, 245 S.W.2d 844, 846 (Mo. 1952); Knorp v. Thompson, 175 S.W.2d 889, 894 (1943); Bushman v. Barlow, 15 S.W.2d 329, 332 (Mo. banc 1929) – or when it is necessary for a full understanding of the instant appeal.State ex rel St. Louis Public Service Company v. Public Service Commission, 291 S.W.2d 95, 97 (Mo. banc 1956).Courts may take judicial notice of their own records in prior proceedings involving the same parties and basically the same facts.In re Murphy, 732 S.W.2d 895, 902 (Mo. banc 1987); State v. Gilmore, 681 S.W.2d 934, 940 (Mo. banc 1984); State v. Keeble, 399 S.W.2d 118, 122 (Mo. 1966).
In summary, Exhibits 1, 3 and 4 would not have rebutted Complainant’s evidence of fair market value and reestablish true value in money as originally determined by the Assessor and affirmed by the Board.
ORDER
The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization forMillerCountyfor the subject tax day is SET ASIDE.
The assessed value for the subject property for tax year 2006 is set at $2,928,000.
A party may file with the Commission an application for review of this decision within thirty (30) days of the mailing of such decision.The application shall contain specific grounds upon which it is claimed the decision is erroneous.Failure to state specific facts or law upon which the appeal is based will result in summary denial.Section 138.432, RSMo 2000.
If an application for review of this decision is made to the Commission, any protested taxes presently in an escrow account in accordance with this appeal shall be held pending the final decision of the Commission and an order to the Collector to release and disburse the impounded taxes.§139.031.3 RSMo.If no application for review is received by the Commission within thirty (30) days, this decision and order is deemed final and the Collector of Miller County, as well as the collectors of all affected political subdivisions therein, shall disburse the protested taxes presently in an escrow account in accord with the decision on the underlying assessment in this appeal.If any or all protested taxes have been disbursed pursuant to Section 139.031(8), RSMo, either party may apply to the circuit court having jurisdiction of the cause for disposition of the protested taxes held by the taxing authority.
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 November 9, 2007.
STATE TAX COMMISSION OFMISSOURI
W. B. Tichenor
Senior Hearing Officer