State Tax Commission of Missouri
MARY ANN GREZESKOWIAK,)
ST. LOUIS COUNTY, MISSOURI,)
ORDER CORRECTING DECISION NUNC PRO TUNC
Decision issued July 2, 1010, is corrected nunc pro tunc as follows:
On page 3, Finding of Fact 5, in the first sentence, the words “Missouri State Certified” are stricken.In all other respects the Decision is affirmed as issued.
SO ORDERED August 3, 2010.
STATE TAX COMMISSION OF MISSOURI
W. B. Tichenor
Senior Hearing Officer
DECISION AND ORDER
Decision of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.True value in money for the subject property for tax years 2009 and 2010 is set at $201,100, residential assessed value of $38,210.Complainant appeared pro se.Respondent appeared by Associate County Counselor Paula J. Lemerman.
Case heard and decided by Senior Hearing Officer W. B. Tichenor.
Complainant appeals, on the ground of overvaluation, the decision of the St. Louis County Board of Equalization, which sustained 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, 2009.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 St. Louis County Board of Equalization.Evidentiary hearing was held on June 21, 2010, at theSt. LouisCountyGovernmentCenter,Clayton,Missouri.
2.Assessment.The Assessor appraised the property at $201,100, residential assessment of $38,210.The Board of Equalization sustained the assessment.
3.Subject Property.The subject property is located at 711 Joyceann Dr., Manchester, Missouri.The property is identified by parcel number 23Q130137.The property consists of 33,136 square foot lot improved by a one-story brick and vinyl, ranch, single-family structure of average quality construction consistent with surrounding properties.The house was built in 2002 and appears to be in average physical condition.The residence has a total of five rooms, with three bedrooms, two baths, and contains 1,839 square feet of living area.There is a full unfinished basement and an attached two-car garage.
4.Complainant’s Evidence.Ms. Grezeskowiak testified in her own behalf.She opined a fair market value for her property as of January 1, 2009 of $190,000.This value was based on the existence of a two vacant houses behind the subject and a vacant lot across the street from the subject.Complainant felt that the existence of dead trees, weeds, brush and a sink hole on neighboring properties detracted from the value of the property under appeal.A series of 19 photographs showing the condition of the neighboring properties were received into evidence as Exhibit A.Complainant’s evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2009, to be $190,000, as proposed.There was no evidence of new construction and improvement during 2009.Therefore the assessment for 2009 remains the assessment for 2010.
5.Respondent’s Evidence.Respondent presented the appraisal report and testimony of Craig Masterson, Missouri State Certified Residential Real Estate Appraiser. Mr. Masterson concluded a value as of January 1, 2009, for the Complainant’s property of $233,000 by developing the sales comparison approach.The properties relied upon by Respondent’s appraiser were comparable to the subject property. The four properties were located within .35 of a mile to 1 mile and six-tenths of the subject.Each sale property sold at a time relevant to the tax date of January 1, 2009.The sale properties were similar to the subject in style, quality of construction, age, condition, room, bedroom and bathroom count, living area, location, site size and other amenities of comparability. The appraiser appropriately adjusted for variances in relevant factors and amenities between the subject and each comparable.
Respondent’s evidence met the standard of substantial and persuasive to establish the value of the subject, as of January 1, 2009, to be $233,000.However, Respondent’s appraisal was accepted only to sustain the original assessment made by the Assessor and sustained by the Board and not for the purpose of raising the assessment above that value.Respondent meet the standard of clear, convincing and cogent evidence in this appeal to sustain the original valuation of $201,100.
CONCLUSIONS OF LAW AND DECISION
The Commission has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious.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.
Presumptions In Appeals
There is a presumption of validity, good faith and correctness of assessment by the CountyBoardof Equalization.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.Complainant’s testimony and photographs did not qualify as substantial and persuasive evidence to rebut the presumption of correct assessment by the Board and to establish the true value in money for the property under appeal as of January 1, 2009, to be $190,000.
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.It is the fair market value of the subject property on the valuation date.Market value is the most probable price in terms of money which a property should bring in competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeable and assuming the price is not affected by undue stimulus.
Implicit in this definition are the consummation of a sale as of a specific date and the passing of title from seller to buyer under conditions whereby:
1.Buyer and seller are typically motivated.
2.Both parties are well informed and well advised, and both acting in what they consider their own best interests.
3.A reasonable time is allowed for exposure in the open market.
4.Payment is made in cash or its equivalent.
5.Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.
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.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. Complainant’s evidence did not include any methodology for the valuation of the property under appeal.Respondent’s appraiser, on the other hand, provided an opinion of the fair market value of the property as of January 1, 2009, based on the development of the comparable sales approach to value.This methodology s general considered the strongest indicator of value for an owner occupied residential property if sufficient relevant sales data is available.Such data was available for the appraiser to utilize for the present appraisal problem.
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, 2009.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.”
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.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.
Owner’s Opinion of Value
The owner of property is generally held competent to testify to its reasonable market value.The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.The opinion of value testified to by Ms. Grzeskowiak was not supported by any market documentation showing what comparable homes to the subject had sold for in a time frame relevant to January 1, 2009.The entirety of the evidence related to what the taxpayer feels are conditions on neighboring properties that detract from the value of her property.The critical problem is that absent a comparison of sales of properties burdened by such detracting factors and other properties not subject to such factors the Hearing Officer has no quantitative basis to account for the neighboring properties influence on the value of the subject.
The evidence on the record from Exhibit 1 establishes a value for the subject property of $233,000.Complainant asserts a value of only $190,000.The Hearing Officer has no evidence upon which he can rationally apply a negative adjustment of $43,000 to the Masterson conclusion of value to arrive at the value tendered by the taxpayer.It would be mere speculation and conjecture to do so.A taxpayer does not meet the burden of proof if evidence on any essential element of his case leaves the Commission “in the nebulous twilight of speculation, conjecture and surmise.”
The essential element of Ms. Grzeskowiak’s case is that the various factors, depicted in Exhibit A and testified to, are a detriment to the value of her property.The more critical matter however, is, assuming without finding, that all of the matters presented detract from the subject’s value, what is the monetary extent of such negative factors?The testimony and photographs provide no basis to conclude a dollar value for any such negative influence.
The Hearing Officer is not persuaded that the mere existence of vacant properties reduces the value of neighboring properties.There is no evidence to support that claim.As to the matter of neighboring yards that have overgrown weeds, brush, dead trees, a sink hole and mounds of dirt to fill the sink hole, the monetary extent to which such factors detract from the value of the property across the street, next door or backing to such properties was not demonstrated in this appeal.Accordingly, the Hearing Officer has no basis upon which a finding of value as proposed by the taxpayer can be supported.In conclusion, the opinion of value of $190,000 was not shown to have been based upon proper elements or a proper foundation.Therefore, the owner’s opinion has no probative weight in this appeal.
Evidence of Increase in Value
In any case in St. Louis County where the assessor presents evidence which indicates a valuation higher than the value finally determined by the assessor or the value determined by the board of equalization, whichever is higher, for that assessment period, such evidence will only be received for the purpose of sustaining the assessor’s or board’s valuation, and not for increasing the valuation of the property under appeal.The evidence presented by the Respondent was substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the fair market value of the property under appeal, as of January 1, 2009, to be $233,000.However, under the Commission rule just cited and Supreme Court decision the assessed value cannot be increased above $38,210 in this particular appeal.
Respondent’s Burden of Proof
The Respondent has imposed upon him by the provisions of Section 137.115.1, RSMo, the burden of proof to present clear, convincing and cogent evidence to sustain a valuation on residential property which is made by a computer, computer-assisted method or a computer program.There is a presumption in this appeal that the original valuation, which was sustained by the Board of Equalization, was made by a computer, computer-assisted method or a computer program.There was no evidence to rebut the presumption, therefore, in order to sustain the valuation of the subject property at $201,100, appraised value, Respondent’s evidence must come within the guidelines established by the legislature and must clearly and convincingly persuade the Hearing Officer as to the value sought to be sustained.
The statutory guidelines for evidence to meet the standard of clear, convincing and cogent include the following:
(1)The findings of the assessor based on an appraisal of the property by generally accepted appraisal techniques; and
(2) The purchase prices from sales of at least three comparable properties and the address or location thereof.As used in this paragraph, the word comparable means that:
(a)Such sale was closed at a date relevant to the property valuation; and
(b) Such properties are not more than one mile from the site of the disputed property, except where no similar properties exist within one mile of the disputed property, the nearest comparable property shall be used.Such property shall be within five hundred square feet in size of the disputed property, and resemble the disputed property in age, floor plan, number of rooms, and other relevant characteristics.
Clear, cogent and convincing evidence is that evidence which clearly convinces the trier of fact of the affirmative proposition to be proved.It does not mean that there may not be contrary evidence.The quality of proof, to be clear and convincing must be more than a mere preponderance but does not require beyond a reasonable doubt.“For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder’s mind is left with an abiding conviction that the evidence is true.”The appraisal performed by Mr. Masterson constitutes clear, cogent and convincing evidence that the true value of the property under appeal as of January 1, 2009 was at least $201,100 as set by the Assessor and sustained by the Board of Equalization.Accordingly, that value must be affirmed by the Hearing Officer.
The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization forSt. LouisCountyfor the subject tax day is AFFIRMED.
The assessed value for the subject property for tax years 2009 and 2010 is set at $38,210.
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.The application shall contain specific grounds upon which it is claimed the decision is erroneous.Said application must be in writing addressed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, MO65102-0146, and a copy of said application must be sent to each person at the address listed below in the certificate of service.
The Collector of St. Louis County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending a filing of an Application for Review, unless said taxes have been disbursed pursuant to a court order under the provisions of Section 139.031.8, RSMo.
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 July 2, 2010.
STATE TAX COMMISSION OFMISSOURI
W. B. Tichenor
Senior Hearing Officer
 After the hearing was closed, Complainant inquired as to whether the photographs which had been presented to the assessor’s appraiser in the prehearing conference would be part of the record.Without objection from Respondent’s Counsel, the photographs were received into evidence.
 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).
 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.
 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).
 See, Westwood Partnership v. Gogarty, 103 S.W.3d 152 (Mo. App. E.D. 2003); Daly v. P. D. George Co., 77 S.W.3d 645 (Mo. App. E.D. 2002); Reeves v. Snider, 115 S.W.3d 375 (Mo. App. S.D. 2003).Industrial Development Authority of Kansas City v. State Tax Commission of Missouri, 804 S.W.2d 387, 392 (Mo. App. 1991).
 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).
“Section 138.060 prohibits an assessor from advocating for or presenting evidence advocating for a higher ‘valuation’ than the ‘value’ finally determined by the assessor. … . Because the legislature uses the singular terms ‘valuation’ and ‘value’ in the statute, however, it clearly was not referring to both true market value and assessed value.While the assessor establishes both true market value and assessed value, which are necessary components of a taxpayer’s assessment, as noted previously, the assessed value is the figure that is multiplied against the actual tax rate to determine the amount of tax a property owner is required to pay.The assessed value is the ‘value that is finally determined’ by the assessor for the assessment period and is the value that limits the assessor’s advocacy and evidence.Section 138.060.By restricting the assessor from advocating for a higher assessed valuation than that finally determined by the assessor for the relevant assessment period, the legislature prevents an assessor from putting a taxpayer at risk of being penalized with a higher assessment for challenging an assessor’s prior determination of the value of the taxpayer’s property.”State ex rel. Ashby Road Partners, LLC et al v. STC and Muehlheausler, 297 SW3d 80, 87-88 (Mo 8/4/09)