State Tax Commission of Missouri
|)||Appeal Numbers 13-11694 &|
|JAKE ZIMMERMAN, ASSESSOR,||)|
|ST. LOUIS COUNTY, MISSOURI,||)|
DECISION AND ORDER
Decisions of the County Board of Equalization reducing the assessment made by the Assessor are AFFIRMED. Complainant did not present substantial and persuasive evidence to rebut the presumption of correct assessment by the Board of Equalization. However, Respondent neither presented clear, convincing and cogent evidence to rebut the presumption of correct assessment by the Board of Equalization, nor did their appraisal meet the requirements of Section 137.115.1(2)(b).
True value in money for the subject properties for tax years 2013 and 2014 are both set at $176,500, residential assessed value of $33,540, the values set by the Board of Equalization.
Complainant appeared pro se.
Respondent appeared by attorney Paula Lemerman
Case heard and decided by Senior Hearing Officer John Treu.
Complainant appeals, on the ground of overvaluation, the decision of the St. Louis County Board of Equalization, which lowered the valuations of the subject properties. The Commission takes this appeal to determine the true value in money for the subject properties on January 1, 2013. 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
- 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. The Evidentiary Hearing was held on 8/13/2014 at the St. Louis County Administration Building, Clayton, Missouri.
- Identification of Subject Property. The subject properties are identified by map parcel numbers or locator numbers 23S540431 & 23S540422. They further identified correspondingly as 103 Applegate Lane & 101 Applegate Lane, both in Ballwin, St. Louis County, Missouri.(Ex. 1)
- Description of Subject Property. The subject properties consist of the following;
a) 103 Applegate Lane consists of an 8,900 square foot site of land improved by a two story style, four family income producing property (apartment building), sixteen rooms, eight bedrooms, four full baths, with 3,506 square feet of living space. The quality of the property is of economy construction and basic functionality. The condition of the property involves some minor deferred maintenance. (Ex. 1)
b) 101 Applegate Lane consists of an 11,088 square foot site of land improved by a two story style, four family income producing property (apartment building), sixteen rooms, eight bedrooms, four full baths, with 3,506 square feet of living space. The quality of the property is of economy construction and basic functionality. The condition of the property involves some minor deferred maintenance. (Ex. 1)
- Assessment. The Assessor appraised the properties as follows:
a) 103 Applegate Lane at $ 185,000. The Board of Equalization reduced the true value of the property to $176,500. (Ex. 1)
b) 101 Applegate Lane at $ 185,000. The Board of Equalization reduced the true value of the property to $176,500. (Ex. 1)
- Complainant’s Evidence. Complainant offered into evidence the same exhibits for both appeals, consisting of Exhibits A through D. Exhibit A consisted of correspondence between Complainant’s husband and the Missouri Department of Natural Resources, as well as a “Notice to Purchasers of Housing Constructed Before 1978”. Exhibit B consisted pictures of the subject property. Exhibit C consisted of a letter from PST Insurance. Exhibit D consisted of a packet of documents regarding Love Canal. Exhibit E consisted of documents regarding contaminates. Exhibits A and B were received into evidence without objection. Exhibits C, D and E were objected to. Such objections were sustained and thus such exhibits were excluded from the evidentiary record. No offers of proof were made as to the particulars of such exhibits.
- No Evidence of New Construction & Improvement. There was no evidence of new construction and improvement for either property from January 1, 2013, to January 1, 2014, therefore the assessed values for 2013 remains the assessed values for 2014. Section 137.115.1, RSMo.
- Respondent’s Evidence. Respondent offered into evidence separate appraisals in each appeal, both marked Exhibit 1
a) For 103 Applegate Lane the Appraisal Report was dated 5/28/2014 with an Effective Date of 1/1/2013 – Mark Stuart, Missouri State Certified Residential Real Estate Appraiser.
b) For 101 Applegate Lane the Appraisal Report was dated 5/27/2014 with an Effective Date of 1/1/2013 – Mark Stuart, Missouri State Certified Residential Real Estate Appraiser.
Both appraisals were objected to as to relevancy. The objection was overruled and the exhibits were received into the evidentiary record.
- Presumption of Correct Assessment Not Rebutted by Clear, Convincing and Cogent Evidence.
The evidence presented by Respondent was substantial and persuasive to rebut the presumption of correct assessment by the Board and to put forth the fair market values of both of the subject properties, as of January 1, 2013, to be $205,000 each. Nevertheless, Respondent did not present clear, convincing and cogent evidence to establish the values of both of the subject properties, as of January 1, 2013, to be $205,000 each. Respondent’s appraisal did not meet the requirements of Section 137.115.1(2)(b). Specifically, of the three comparables used, comparable #2 exceeded the 500 square foot requirement of such statutory section by 61 square feet. The statute is clear that: “…[s]uch property shall be within five hundred square feet in size of the disputed property…” (Underline and bold added for emphasis by Hearing Officer). “Shall is not a discretionary word. Either the standard is met or it is not.
It does not matter that the sales/rental comparables used by the Respondent’s appraiser were all within .58 miles of the subject property and all sold between May of 2012 and September of 2012 or that the comparables had the same number of bedrooms and bathrooms as the subject properties. It also does not matter that all of the comparables were similar in age, total number of rooms or characteristics, with both the subject properties and the comparables all having the same number of units.
It is of note that Section 137.115.1(2)(b) requires the floor plans of the three required comparables to “resemble” the floor plans of the subject properties. The subject properties are two story style designs. Comparables #1 and #3 are both two story style designs; however, comparable #2 is a ranch style design. Respondent did not present clear, convincing and cogent evidence that comparable #2 resembled the floor plan of the subject properties.
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. 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); May Department Stores Co. v. STC, 308 S.W.2d 748, 759 (Mo. 1958). This presumption is a rebuttable rather than a conclusive presumption. It places the burden of going forward with some substantial evidence on the taxpayer – Complainant. When some substantial evidence is produced by the Complainant, “however slight”, the presumption disappears and the Hearing Officer, as trier of facts, receives the issue free of the presumption. United Missouri Bank of Kansas City v. March, 650 S.W.2d 678, 680-81 (Mo. App. 1983), citing to State ex rel. Christian v. Lawry, 405 S.W.2d 729, 730 (Mo. App. 1966) and cases therein cited. The presumption is not evidence of value. The presumption of correct assessment is rebutted when the taxpayer presents substantial and persuasive evidence to establish that the Board’s valuation is erroneous and what the fair market value should have been placed on the property. Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See, Cupples-Hesse, supra. 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).
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, 2013. 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); 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). A valuation which does not reflect the fair market value (true value in money) of the property under appeal is an unlawful, unfair and improper assessment.
Complainant presented Exhibit A in an attempt to show the properties had and have chemicals in the ground on the properties. However, such exhibit specifically stated “the Department concludes that there is no unacceptable risk to the health of the residents of your buildings.” Also of note, testimony was elicited that the property owners continued to rent the subject properties before and during the pertinent time period, despite their desire to cast the properties as having zero and/or questionable value. The fact the property owners continued to rent the properties does not comport with Complainant’s husbands assertion, in Exhibit A, which Complainant offered and which was not objected to that “[i]t has always been my intent to protect my tenants, because safety both in the workplace and at home is my first goal.” Exhibit A, Letter of Charles Shaw, dated 5/8/12 to the Missouri Department of Natural Resources. Complainant produced no appraisal evidence or estimates to show any costs to obviate the alleged potential impact on the true market value of the properties, to potential buyers of the subject properties, regarding the contaminants/chemicals/substances. 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).
Exhibit A also states that during trenching, complainant’s husband smelled a strong odor of gasoline; however, it appears the trenching occurred approximately 17 years before the 5/28/2012 letter in Exhibit A. Exhibit A also shows that monitoring wells were pulled. A letter from the Missouri Department of Natural Resources, dated 4/13/12, in Exhibit A , says the properties were evaluated at a residential target level, which is a more stringent standard. Another letter from the Missouri Department of Revenue in Exhibit A stated that “soil vapor samples [were taken] from beneath the foundation of …[the] building” and that “no detection of petroleum constituents in soil vapor under your building.” Moreover, another letter from the Missouri Department of Natural Resources, included in Exhibit A stated that a ”No Further Action” letter was issued on November 21, 2011 (internal quotation omitted). Finally, testimony was given on behalf of Complainant that no tenants had complained of illness, that Mr. Sulin, Complainant’s husband had not smelled anything while in the basement and that he had been in such basement on many occasions and that Mr. Sulin was not aware of any illness on his part from any contamination. Complainant did not meet her burden of proof.
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. However, once again, 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). Complainant’s opinion of value left this hearing officer in such a situation.
Board Presumption and Computer-Assisted Presumption
There exists a presumption of correct assessment by the Board of Equalization. As will be addressed below (See, Respondent’s Burden of Proof, infra), there exists by statutory mandate a presumption that the Assessor’s original valuation was made by a computer, computer-assisted method or a computer program – the computer-assisted presumption. These two presumptions operate with regard to the parties in different ways. The Board presumption operates in every case to require the taxpayer to present evidence to rebut it. If Respondent is seeking to prove a value different than that set by the Board, then it also would be applicable to the Respondent. The computer-assisted presumption only comes into play if the Respondent is seeking to sustain the original assessment and it has not been shown that it was not the result of a computer assisted method.
The Assessor’s original value in this appeal was determined by the Board of Equalization to not be correct. Accordingly, the taxpayer must rebut that presumption in order to prevail. The taxpayer must establish by substantial and persuasive evidence that the value concluded by the Board is in error and what the correct value should be. The burden, of course, is discharged by simply establishing the fair market value of the property as of the valuation date, since once fair market value is established it, a fortiori, proves that the Board’s value was in error. The computer-assisted presumption plays no role in this process.
The computer assisted presumption can only come into play in those instances where the Respondent is seeking to have the Assessor’s original valuation affirmed. In those cases, such as this where the Assessor’s original value has been lowered by the Board and the Respondent has tendered evidence to support the original value assigned by the Assessor, the Hearing Officer then imposes the computer-assisted presumption on Respondent’s evidence. It however, does not negate the fact that the Board presumption remains operative as to evidence which is presented by the taxpayer. The effect of the computer-assisted presumption coming into operation is that the standard of proof for the Respondent is then raised from substantial and persuasive to clear, convincing and cogent.
Respondent’s Burden of Proof
In charter counties or the City of St. Louis, the Respondent, when wishing to advocate for a valuation equal to the higher of the valuation determined by the assessor or the Board of Equalization 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 lowered by the Board of Equalization, was made by a computer, computer-assisted method or a computer program. There was evidence to rebut the presumption, therefore, in order to sustain the Assessor’s original valuation of the subject property at $185,000, assessed value $35,150, Respondent’s evidence must come within the guidelines established by the legislature and must clearly, convincingly and cogently 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. Section 137.115.1(1) & (2).
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. Grissum v. Reesman, 505 S.W.2d 81, 85, 86 (Mo. Div. 2, 1974).The quality of proof, to be clear and convincing must be more than a mere preponderance but does not require beyond a reasonable doubt. 30 AmJur2d. 345-346, Evidence section 1167. “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.” Matter of O’Brien, 600 S.W.2d 695, 697 (Mo. App. 1980). Respondent did not meet this standard.
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), citing, Equitable Life Assurance Society v. STC, 852 S.W.2d 376, 380 (Mo. App. 1993); citing, Stephen & Stephen Properties, Inc. v. STC, 499 S.W.2d 798, 801-803 (Mo. 1973).
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 are the consummation of a sale as of a specific date and the passing of title from seller to buyer under conditions whereby:
- Buyer and seller are typically motivated.
- Both parties are well informed and well advised, and both acting in what they consider their own best interests.
- A reasonable time is allowed for exposure in the open market.
- Payment is made in cash or its equivalent.
- 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.
Hearsay and Relevance
In evidentiary law there are two important and fundamental concepts relating to the admissibility of evidence, whether in testimonial or documentary form. Those two principles are hearsay and relevance. Either can be sufficient in various circumstances to exclude testimony or documents from coming into the evidentiary record.
Black’s Law Dictionary, Seventh Edition (1999), p. 726, defines hearsay as follows: “Traditionally, testimony that is given by a witness who relates not what he or she knows personally, but what others have said, and that is therefore dependent upon the credibility of someone other than the witness. Such testimony is generally inadmissible under the rules of evidence.” McCormick on Evidence, Third Edition, (1984), p. 729, defines the term as; “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” The Courtroom Handbook on Missouri Evidence Missouri Practice, William A. Schroeder – 2012, Principle 800.c, p. 504,
follows the definition given by the Federal Rules and cited by McCormick. The out of court statement can take the form of either oral or written assertions. Therefore, documents which make assertions of facts are hearsay, just as well, as the speech of another person.
The hearsay rule provides that “no assertion offered as testimony can be received unless it is or has been open to test by cross-examination or an opportunity for cross-examination, except as otherwise provide by the rules of evidence, by court rules or by statute.” Black’s, supra – hearsay rule, p. 726. The rationale behind the rule is quite simply that out of court hearsay statements are not made under oath and cannot be subject to cross-examination. Accordingly, when various documents, such as but not limited to, Internet, newspaper and magazine articles are offered as exhibits in a hearing before the Commission, unless the document falls within one of the exceptions to the hearsay rule, upon objection such must be excluded.
The principle of relevance is the second critical evidentiary factor that must be considered when testimony and documents are tendered for admission into an evidentiary record. For facts, information or opinions to be relevant they must be connected in a logical manner and tend to prove or disprove a matter that is at issue in the proceeding. Black’s, supra – relevant, p. 1293. McCormick explains that “There are two components to relevant evidence: materiality and probative value. Materiality looks to the relation between the propositions for which the evidence is offered and the issues of the case. If the evidence is offered to help prove a proposition which is not a matter in issue, the evidence is immaterial. . . . The second aspect of relevance is probative value, the tendency of evidence to establish the proposition that it is offered to prove.” McCormick, supra – p. 541. Evidence, that tends to prove or disprove a fact that is at issue or of consequence, is relevant. Missouri Practice, supra – p. 95.
In appeals on the value of property, the issue is what a willing buyer and seller would have agreed to as the purchase price on the applicable valuation date. The issue is not what real estate price trends in general may have been or any given period of time. The issue is specific to the property that is under appeal. Therefore, general statements, claims, conclusions and opinions as to what the “market for homes” has or hasn’t done do not meet the factors of materiality and probative value and are accordingly irrelevant. The fact that some report provides general information on home values is addressing a matter that is not at issue in an appeal. Such information is not material. Furthermore, such general data does not tend to prove what the property under appeal was worth on the given valuation date. For example, a report that home prices in the nation, region or certain metropolitan area over a four or five year period decreased by a certain average percentage provides no factual information as to the price or value of any given home. In other words, such information is not probative on the issue of value. It does nothing to prove that a given property is worth one amount or another.
Investigation by Hearing Officer
In order to investigate appeals filed with the Commission, the Hearing Officer may inquire of the owner of the property or of any other party to the appeal regarding any matter or issue relevant to the valuation, subclassification or assessment of the property. The Hearing Officer’s decision regarding the assessment or valuation of the property may be based solely upon his inquiry and any evidence presented by the parties, or based solely upon evidence presented by the parties. Section 138.430.2, RSMo. The Hearing Officer during the evidentiary hearing made inquiry of Complainant, Complainant’s husband and Respondent’s appraiser.
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); 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).
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). Missouri courts have approved the comparable sales or market approach, the cost approach and the income approach as recognized methods of arriving at fair market value. St. Joe Minerals Corp. v. STC, 854 S.W.2d 526, 529 (App. E.D. 1993); Aspenhof Corp. v. STC, 789 S.W.2d 867, 869 (App. E.D. 1990); Quincy Soybean Company, Inc., v. Lowe, 773 S.W.2d 503, 504 (App. E.D. 1989), citing Del-Mar Redevelopment Corp v. Associated Garages, Inc., 726 S.W.2d 866, 869 (App. E.D. 1987);and State ex rel. State Highway Comm’n v. Southern Dev. Co., 509 S.W.2d 18, 27 (Mo. Div. 2 1974).
The Supreme Court of Missouri has also held that evidence of the actual sales price of property is admissible to establish value at the time of an assessment, provided that such evidence involves a voluntary purchase not too remote in time. The actual sale price is a method that may be considered for estimating true value. St. Joe Minerals Corp., supra
Opinion Testimony by Experts
An expert’s opinion must be founded upon substantial information, not mere conjecture or speculation, and there must be a rational basis for the opinion. Missouri Pipeline Co. v. Wilmes, 898 S.W. 2d 682, 687 (Mo. App. E.D. 1995).The state tax commission cannot ignore a lack of support in the evidence for adjustments made by the expert witnesses in the application of a particular valuation approach. Drey v. State Tax Commission, 345 S.W. 2d 228, 234-236 (Mo. 1961), Snider v. Casino Aztar/Aztar Missouri Gaming Corp., 156 S.W. 3d, 341, 348 (Mo. 2005).
The testimony of an expert is to be considered like any other testimony, is to be tried by the same test, and receives just so much weight and credit as the trier of fact may deem it entitled to when viewed in connection with all other circumstances. The Hearing Officer, as the trier of fact, has the authority to weigh the evidence and 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 may accept it in part or reject it in part. Beardsley v. Beardsley, 819 S.W. 2d 400, 403 (Mo. App. 1991); Curnow v. Sloan, 625 S.W. 2d 605, 607 (Mo. 1981); Scanlon v. Kansas City, 28 S.W. 2d 84, 95 (Mo. 1930).
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).
Evidence of Increase in Values
In any case in charter counties or St. Louis City 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. Section 138.060, RSMo; 12 CSR 30-3.075. Respondent did present evidence of this fashion. However, Respondent did not present clear, convincing and cogent evidence to rebut the presumption of correct assessments by the Board as to each property and establish the fair market value of each property under appeal, as of January 1, 2013. Thus, the original values of the Assessor as to the subject properties cannot be set as the values in this case.
The assessed by the Board of Equalization for St. Louis County which lowered the valuation for the subject properties as originally determined by the Assessor is AFFIRMED.
The assessed value for the subject properties for tax years 2013 and 2014 are set at $33,540 for 103 Applegate Lane & $33,540 for 101 Applegate Lane, as more fully described above.
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
The Collector of St. Louis County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending the possible filing of an Application for Review, unless said taxes have been disbursed pursuant to a court order under the provisions of Section 139.031.8, RSMo.
Any Finding of Fact which is a Conclusion of Law or Decision shall be so deemed. Any Decision which is a Finding of Fact or Conclusion of Law shall be so deemed.
SO ORDERED this 26th day of August, 2014.
STATE TAX COMMISSION OF MISSOURI
Senior Hearing Officer
Delivery or Notice was made to the following Individuals on August 26th, 2014 of this Decision and Order Holding
Mary Sulin, 11613 Breezeway Ln., Bridgeton, MO 63044, Complainant
Paula Lemerman, Associate County Counsel, Attorney for Respondent, PLemerman@stlouisco.com
Jake Zimmerman, Assessor, email@example.com
Mark Devore, Collector, MDevore@stlouisco.com