Mark & Carroll Brcic v. Kayla Henry, Assessor Camden County

State Tax Commission of Missouri

 

 

MARK & CARROLL BRCIC,	)
	)
Complainant(s),	)
	)
v.	)	Appeal Number 16-47000
	)
KAYLA HENRY, ASSESSOR,	)
CAMDEN COUNTY, MISSOURI,	)
	)
Respondent.	)

 

 

DECISION AND ORDER

 

HOLDING

 

Decision of the County Board of Equalization of Camden County lowering the assessment made by the Assessor is AFFIRMED.  Complainant did not 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 2016 is set at $197,190, residential assessed value of $37,470.

Complainant Mark Brcic appeared pro se.

Complainant Carrol Brcic did not appear.

Respondent appeared by attorney Michael Gilley.

Case heard and decided by Senior Hearing Officer John Treu.

ISSUE

Complainant appeals, on the ground of overvaluation the decision of the Camden County Board of Equalization, which lowered 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, 2015.  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 and improvement to the property.  Section 137.115.1 RSMo

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 Camden County Board of Equalization.
2. Evidentiary Hearing. The Evidentiary Hearing was held on October 12, 2016 at Camden County Courthouse in Camdenton, Missouri.
3. Identification of Subject Property. The subject property is identified by map parcel number or locator number 08-6.0-14.0-000-0-003-009.714.  It is further identified as 5320 Mystic Bay Drive, Unit 700B, Osage Beach, Camden County, Missouri. (Complaint for Review of Assessment)
4. Description of Subject Property. The subject property is a condominium unit in the Mystic Bay Condominium Complex.  It was purchased by Complainants in May of 2013 for $272,000.  It is a lakeside unit with access only from a patio, under a deck.  It is a ground level unit.  Based upon Exhibits B2, B3 and B4 the units in the Mystic Bay Condominium Complex have 1,930 square feet of finished space with 3 bedrooms, one full bath, one half bath and a fireplace.  Subsequent to January 1, 2015 the owners and occupants of lakeside units were sent a letter by the City of Osage Beach to discontinue use of the lakeside decks and patios due to structural integrity issues with the deck structures and advised that violation of the order would be a municipal ordinance violation.  (Complaint for Review of Assessment, Ex. A, B-2, B-3, B4, I, O & P)
5. Assessment. The Assessor valued the property at $262,900, as residential property.  The Board of Equalization reduced the assessor’s valuation of the property to $197,190. (Complainant for Review of Assessment and Exhibit K)
6. Complainant’s Evidence. Complainant offered into evidence the following exhibits.  Certain exhibits were objected to based upon inability to cross examine the witness.  Whether an exhibit was objected to and whether an exhibit was admitted into the record is noted.

Exhibit	Description	Objection	Admitted
A, Page 1	Letter from City of Osage Beach		X
A, Page2	Letter from Allstate Consultants (Engineers)	X
B-1	Email from Realtor	X
B-2	Realtor Printout of Unit Sold at Mystic Bay		X
B-3	Realtor Printout of Unit Sold at Mystic Bay		X
B-4	Realtor Printout of Unit Sold at Mystic Bay		X
C	Letter from Mortgage Company	X
D	Letter from Architect	X
E	First Page of Lawsuit Petition		X
F	Letter from Allstate Consultants (Engineers)	X
G	Letter from Construction Service Company	X
H	Letter from Allstate Consultants (Engineers)	X
I	Letter from City of Osage Beach		X
J	Home Owners Assoc. Notice	X
K	BOE Letter and Decision		X
L	Email from County Clerk		X
M	Email Thread from Brent Salsman		X
N	Article from Online New Organization		X
O	Attorney Letter Regarding Lawsuit	X	X
P	Photographs of Subject Property		X
Q	Photographs of Current Residence		X

 

7. Evidence of Improvement. There was no evidence of improvements from January 1, 2015 to January 1, 2016 to the property owned by Complainants.
8. Respondent’s Evidence. Respondent offered no evidence
9. Presumption of Correct Assessment Not Rebutted. Complainants’ evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money.

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.  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 and tangible personal property are assessed at set percentages of true value in money. Section 137.115.5, RSMo – residential property at 19% of true value in money; commercial property at 32% of true value in money and agricultural property at 12% of true value in money.

Presumption In Appeal

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.  Hermel, Inc. v. STC, 564 S.W.2d 888, 895 (Mo. banc 1978); Chicago, Burlington & Quincy Railroad Co. v. STC, 436 S.W.2d 650, 656 (Mo. 1968).   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. Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).

Complainants’ Burden of Proof

In order to prevail, Complainants 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, 2015.  Hermel, supra.   There is no presumption that the taxpayer’s opinion is correct. The taxpayer in a Commission appeal still bears the burden of proof.  The taxpayer is the moving party seeking affirmative relief.   Therefore, the Complainant bears the burden of proving the vital elements of the case, i.e., the assessment was “unlawful, unfair, improper, arbitrary or capricious.”  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).

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).    True value in money is defined in terms of value in exchange and not value in use.  Daly v. P. D. George Company, et al, 77 S.W.3d 645, 649 (Mo. App E.D. 2002), (internal citation omitted)   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 a 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.  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.

 

Weight to be Given Evidence

            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)

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).

Owner’s Opinion of Value

The owner of property is generally held competent to testify to its reasonable market value.   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).   The owner’s opinion is without probative value; however, where it is shown to have been based upon improper elements or an improper foundation.  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).

“Where the basis for a test as to the reliability of the testimony is not supported by a statement of facts on which it is based, or the basis of fact does not appear to be sufficient, the testimony should be rejected.”  Carmel Energy 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. 1980).

Failure to Prove Value

            Complainants’ condominium unit in the Mystic Bay Condominium Complex was purchased by Complainants in May of 2013 for $272,000.  The Assessor valued the property at $262,900, as residential property for the pertinent tax year.  The Board of Equalization reduced the assessor’s valuation of the property to $197,190, $74,810 below the purchase price of the property.  The Board of Equalization took into consideration information they received from engineering reports and the home owners association.  The subject property is a lakeside, ground level unit with access only from a patio, under a deck.

It is undisputed that Complainants access to the unit is dangerous and that the City of Osage Beach has advised the lakeside owners not to use their patios and decks.  It is also undisputed that Complainants’ only access to their unit is via their patio.  Additionally, it is undisputed that the issue with the decks at Mystic Bay Condominiums can be fixed.  Complainants presented no evidence of the impact on the market value due to the following issues.  The Hearing Officer would have to resort to speculation to determine such impact.  Complainants simply did not produce substantial and persuasive evidence of the true value of the property on January 1, 2015.

ORDER

The assessed valuation for the subject property as determined by the Board of Equalization for Camden County for the subject tax day is AFFIRMED.

The assessed value for the subject property for tax year 2016 is set at $37,470.

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 Camden 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 November 1, 2016.

STATE TAX COMMISSION OF MISSOURI

John Treu

Senior Hearing Officer

 

Delivery or Notice was made via mail, email, fax, or personally on November 1^st, 2016 to the following Individuals of this Order

michael_gilley@camdenmo.org; kayla_henry@camdenmo.org; mbrcic@atinsur.com

 

Jacklyn Wood

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