MCW RD Twin Oaks v. Zimmerman (SLCO)

State Tax Commission of Missouri

MCW RD TWIN OAKS LLC,)

)

Complainant,)

)

v.)Appeal Nos.09-10673 – 09-10676

)

JAKE ZIMMERMAN, ASSESSOR,)

ST. LOUIS COUNTY, MISSOURI,)

)

Respondent.)

ORDER

AFFIRMING HEARING OFFICER DECISION

UPON APPLICATION FOR REVIEW

On November 29, 2011, Hearing Officer Maureen Monaghan entered her Decision and Order (Decision) setting aside in part and affirming in part the assessments by the St. Louis County Board of Equalization.

Respondent filed his Application for Review of the Decision.Complainant elected to not file a Response.^[1]

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.^[2]

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 she 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.^[3]

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.^[4]

DECISION

Grounds for Application for Review

Respondent’s Application for Review relates exclusively to the Hearing Officer’s Decision affecting the property in appeals 09-10674 and 09-10675.^[5]The arguments made for overturning the Decision are:

1.                  The Hearing Officer erred in finding that the 2007 sale of the subject property was a non-arm’s-length transfer between related parties is not based upon substantial and persuasive evidence in the record; and

2.                  The Hearing Officer erred in relying on only one approach to value, the income approach, and essentially ignored the comparable sales approach evidence; and

3.                  The Hearing Officer erred in accepting the income approach opinion to value presented by Complainant’s appraiser.

Discussion and Rulings

2007 Sale

Respondent asserts that the Hearing Officer erred in Finding of Fact 5 that the 2007 sale “was not an arm’s length transaction as the parties were related” is not well taken.Respondent’s assertion rests upon the claim that there was not substantial and persuasive evidence on the record to support the finding.Therefore, the initial inquiry is whether there is evidence on the record to support the finding of the Hearing Officer.

The Complainant’s appraiser reviewed the sales history of the subject.He concluded that “The subject property sold as a part of a portfolio of properties on August 15, 2007.The sale was a non-arm’s length transaction.The transaction was actually a partnership entity to partnership entity consolidation with 27% undivided interest of the new partnership also being the same as 100% partnership ownership of the sellers.”^[6]Appraiser’s emphasis.The appraiser testified in response to a question regarding the change in ownership in 2007, as follows:

“I noted the transaction in my report and concluded that this property was one of many portfolio properties that involved sellers and buyers being related parties in before and after partnership entities.In my opinion the substance of the ‘purchase and sale’ was actually a refinancing transaction generating new funding from an REIT and a resulting ownership re-allocation of several original partnership entities and one new partnership entity.The sale, therefore, is not considered a valid, arm’s length market sale between buyers and sellers and should not be used for sales comparison purposes.”^[7]

When the appraiser was questioned under re-direct concerning the Certificate of Value filed on the 2007 transaction,^[8] he observed that there was a note at the bottom of the document about the transfer being a part of a multi-property transfer and not a typical market transaction.^[9]Further testimony under re-direct examination established that the appraiser’s review of the purchase agreement for the 2007 transaction “. . . clearly depicted that the selling entity was also part of the buying entity as well, so thus, that was my conclusion as to why it was a non-arm’s-length transaction.”^[10]

When questioned by Respondent’s Counsel on the matter in re-cross, the appraiser reiterated, “. . . I received portions of the–of the purchase contract that indicated that there was–that the selling entity was also a portion of the buying entity.”^[11]

The information on which Complainant’s appraiser relied to form his opinion relative to the 2007 sale not being an arm’s-length transaction is the type of facts or data upon which an appraiser of real property would base an opinion or inference on this matter of the validity of a sale.Such information is the type of information that would reasonably be relied upon by experts in the appraisal field.The appraiser obviously concluded the information was otherwise reliable.^[12]Respondent’s hearsay argument based upon the Hess decision^[13] is not persuasive given that it predates the enactment of section 490.065 RSMo which is controlling regarding expert testimony.

There is clearly evidence on the record to support the Finding of Fact.The Hearing Officer was persuaded by said evidence.As trier of fact, the Hearing Officer was free to give whatever probative weight to Complainant’s evidence as she deemed to be warranted. The foregoing evidence meets the standard of substantial and persuasive for the Hearing Officer to have concluded that the 2007 transaction was not an arm’s length transaction as the parties were related.There was no abuse of discretion in the conclusion reached by the Hearing Officer.The Hearing Officer did not err in her Finding of Fact.

Reliance on Income Approach

Respondent’s claim that the Hearing Officer erred in relying on only one approach to value, the income approach, and essentially ignored the comparable sales approach evidence is without merit.Respondent presents no citation or authority for the proposition that the decision of the Hearing Officer cannot rest entirely upon a single approach to value.The case law is clear as to discretion resting in the Hearing Officer as to weighing of the evidence.See, Standard Upon Review, supra.

While appraisers are to consider each of the approaches to value and to reconcile their valuation of the conclusions reached under each approach deemed appropriate for a given appraisal problem, the Hearing Officer, nor the Commission, are under any such mandate.The Hearing Officer as trier of fact was not “appraising” the property.The Hearing Officer was to weigh the evidence and based upon the relative weight that she gave to the evidence to arrive at a conclusion of value.This the Hearing Officer did.It is obvious that upon consideration of the evidence, the Hearing Officer was persuaded that the income approach was appropriate for the determination of value in this instance.The Commission finds no basis upon which to conclude that the Hearing Officer erred in this determination.

Accepting Complainant’s Income Approach

Respondent’s final argument is that the Hearing Officer erred in accepting the income approach opinion to value presented by Complainant’s appraiser.The Decision addressed in detail the Hearing Officer’s review and analysis of Complainant’s evidence.^[14]There is a sound evidentiary basis for the Hearing Officer’s conclusion to find value based upon the income approach tendered by Complainant.Respondent’s arguments provide only a series of difference in opinion of how to view the evidence, not any error that warrants reversal or modification of the Decision.

Summary and Conclusion

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.^[15]

The Hearing Officer did not err in her determinations as challenged by Respondent.

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.The Decision and Order of the hearing officer, including the findings of fact and conclusions of law therein, is incorporated by reference, as if set out in full, in this final decision of the Commission.

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 mailing date set forth in the Certificate of Service for 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 unless disbursed pursuant to Section 139.031.8, RSMo.

If no judicial review is made within thirty days, this decision and order is deemed final and the Collector of St. Louis 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.

SO ORDERED June 5, 2012.

STATE TAX COMMISSION OF MISSOURI

Bruce E. Davis, Chairman

Randy B. Holman, Commissioner

DECISION AND ORDER

HOLDING

Decision of the St. Louis County Board of Equalization sustained the assessment made by the Assessor is AFFIRMED in part and SET ASIDE in part and true value in money for the subject property for tax years 2009 and 2010 is set as follows:

The property is classified as commercial property.Complainant appeared by counsel Richard Dvorak.Respondent appeared by Associate County Counselor, Edward Corrigan.

Case decided by Hearing Officer Maureen Monaghan.

ISSUE

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 these appeals is proper.Complainant timely appealed to the State Tax Commission from the decision of the St. Louis County Board of Equalization.

2.Assessment.The Assessor appraised the property at $10,727,700; assessed value of $3,432,864.

3.Appeal.The Complainant appealed to the Board of Equalization.The Board sustained the valuation and the Complainant filed Complaints for Review of Assessment with the State Tax Commission as follows:

4.Abandonment of Appeal.Complainant presented no evidence as to the value of the unimproved parcels in appeals 09-10676 and 09-10673 and therefore there was not substantial and persuasive evidence to rebut the presumption of correct assessment by the Board for the two parcels.

5.Subject Property.The subject property is located at 1129 Meramec, St. Louis, Missouri; it is made up of two parcels.The property is identified by locator numbers 24Q310426 and 24Q330703.The property consists of 7.99 acres with 71,682 square foot improvements of retail space.The property was purchased in 2007 with a recorded sale price of $13,807,803.The transaction was not an arm’s-length transaction as the parties were related.

6.Complainant’s Evidence.Complainant filed the following exhibits which were received into the record:

Respondent objected to Exhibits A and B.Exhibit A based upon lack of foundation, hearsay and discovery issues.Hearing Officer overruled the objections and issued an order addressing any discovery concerns.

There was no evidence of new construction and improvement from January 1, 2009, to January 1, 2010, therefore the assessed value for 2009 remains the assessed value for 2010.[16]

Complainant’s evidence was 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 $8,100,000 as proposed for the two parcels.The Complainant did not present evidence as to the market value of the additional lots.The Board set their values at $435,600 and $453,500.The true value in money of the property is determined to be $8,989,100, a commercial assessed value of $2,876,512.

7.Respondent’s Evidence.Respondent filed the following exhibits which were received into the record:

Complainant objected to Exhibits 1, 2 and 3 prior to hearing.Hearing Officer overruled Complainant’s issue but issued an order addressing discovery concerns of Complainant.Complainant objected to Exhibit 6 during the hearing for lack of foundation.Objection was sustained.

David Winkler testified on behalf of Respondent.Mr. Winkler has been employed as a commercial appraiser with the St. Louis County Assessor’s Office since May 2002.The appraiser conducted a review appraisal of the county’s mass appraisal value estimate.

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.[17]

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.[18]The constitutional mandate is to find the true value in money for the property under appeal. By statute real and tangible personal property is assessed at set percentages of true value in money.[19]In an overvaluation appeal, true value in money for the property being appealed must be determined based upon the evidence on the record that is probative on the issue of the fair market value of the property under appeal.

Presumption In Appeals

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[20]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.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.[21]

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.[22]True value in money is defined in terms of value in exchange and not value in use.[23]It is the fair market value of the subject property on the valuation date.[24]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.

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.[25]

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.[26]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.[27]

The Complainant presented the testimony of a certified commercial appraiser and his appraisal report.The Respondent presented the testimony of a commercial appraiser employed by the county and his appraisal review report.

Appraisals

There are different types of appraisal reports and review appraisals.Certified appraisers must be in compliance with the Uniform Standards of Professional Appraisal Practice when developing values, reporting values or reviewing appraisal reports.

There are several types of review appraisal reports.The reviewer should set forth the type of review he is conducting.A reviewer may conduct a desk review wherein he reviews the contents of the appraisals to determine if the appraiser’s reasons and processes are facially valid.The reviewer may or may not validate data in the report he is reviewing.In a field review, the reviewer will review the written report as well as make a visual examination of the subject property.In a full review, the reviewer will independently collect data and review the contents of the appraisal.The reviewer may not make a conclusion of value but may simply collect data to compare with the data used to determine if there are potential anomalies.

In this case, the Respondent’s commercial appraiser stated that he was reviewing the county’s mass appraisal valuation and his report was a field technical review (Ex. 3 p. 10).

A mass appraisal is the process of valuing a group of properties as of a given date using common data, standardized methods, and statistical testing.To estimate a particular parcel’s value, assessing officers must rely upon valuation equations, tables, and schedules developed through mathematical analysis of market data.Except for unique properties, individual analyses and appraisals of properties are not practical for ad valorem tax purposes.

The reviewer states that he is reviewing the county’s mass appraisal valuation.A mass appraisal will provide a value estimate for a group of properties.A review of the mass appraisal would be conducted adhering to Standard 3 of USPAP.The reviewer, however, testified that he was reviewing the county’s parcel valuation.The county did not conduct an appraisal of the subject property as part of its mass appraisal.If the reviewer is reviewing the valuation and stating a value for the property, he must comply with USPAP standard 1.

The reviewer stated in his certification (Ex. 1 p. 33) that he valued the leased fee interest in the subject property.Typically for ad valorem purposes, properties are valued on a fee simple estate.If leased fee interests were valued for property tax purposes, the assessor would need to identify properties subject to a lease, obtain copies ofleases, and analyze each lease.Further, if an assessor did not value on a fee simple value for ad valorem purposes but based it upon the terms of the lease, we would be in danger of arriving at values based on the business ability, or lack of, of the property owner.

The review appraiser reviewed the cost approach on the property record card and developed a limited sales comparison and income approach.In the sales comparison approach, the appraiser used four sales with sales dates ranging from August 2007 to May 2010; the sales included the sale of the subject property.The comparables were all retail spaces with grocery store anchors.Sale #3, sale of the subject property, was not an arm’s length transaction as the parties were related.Sale #2 has half the square footage as the subject property. The appraiser made adjustments for date of sale, age, and building area.The building area of both sales #1 and #4 were adjusted positively by 10% even though one of the properties is smaller and one larger than the subject.

Given the differences in the subject and the comparable properties and the fact that a purchaser of this type of property would be most concerned with the income production of the property, the sales comparison approach would not be given as much weight as the income approach to value.

In the income approach, the Respondent’s appraiser used data from the subject property.A review and analysis of market rents is necessary in this situation since the owner of the property is a related party to the renter of the supermarket square footage.The property has a very low vacancy rate 1.7%, the retail sites in the area have a vacancy rate of 7%.The appraiser included the reported annual recovery; according to the Complainant’s appraiser, the recovery included the property taxes for the subject property.Property taxes are accounted for in the capitalization rate.The appraiser, using a mortgage equity analysis determined a capitalization rate of 7.44%.He then calculated an effective tax rate of 2.69%.The adjusted overall rate would be 10.129%.Applying the cap rate to the net operating income as calculated by the appraiser would result in a value of $9,962,750 or $157.49 per square foot.The appraiser also added $889,100 to account for the contributory value of the additional lots.

Respondent’s evidence was not substantial and persuasive to support the county’s value estimation or establish true value in money as determined by the review appraiser of January 1, 2009.

Complainant’s Appraisal

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.[28]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.”[29]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[30]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.[31]

Troy Smith testified on behalf of Complainant.Mr. Smith is a Missouri State Certified General Real Estate Appraiser employed by Verity Valuations, LLC.The appraiser concluded on a value of $8,100,000[32] as of January 1, 2009.The appraiser developed the sales comparison and the income approaches; he placed the most weight on the income approach.

In the sales comparison approach, the appraiser used four sales occurring in 2008.The comparables were all retail spaces with grocery store anchors.

The appraiser made adjustments for location, size, and age and concluded on a range of values of $111.52 to $139.72 (average $121.04).The subject property was described by the appraiser as having very good access in an area experiencing rapid growth and therefore its economic outlook is very good.However, the appraiser made a negative adjustment to the comparables claiming the subject was in an average location with limited exposure (Ex. A pp. 8, 23, 24).The appraiser did not provide a breakdown of the anchor square footage as compared to the smaller retail space for each of the comparables.

After adjustments, the appraiser concluded a value of $115.09 per square foot or a rounded value of $8,250,000.

In the income approach, the appraiser used data from the subject property and market data of income and expenses.The property has a very low vacancy rate 1.7%, the market vacancy rate was 8.5% for 2008 and the appraiser used a 10%.The current rates for leasing for the subject property is $10.92 to $24.00.The anchor space (63,482) leases for $12.06 per square foot.The in-line tenants pay $21.00 to $24.00 per square foot.The appraiser reviewed the market to find asking rental rates of $15 to $20 for in-line spaces and $6 to $10.84 for anchor spaces. The weighted average lease rate is $12.06. The appraiser reported that the asking rent in Missouri was $14.00 per square foot.Appraiser believed rents were on a downward trend and therefore used a rent of $10.92 per square foot.Some of the conclusions of the appraiser are not persuasive.For example, he found the average lease rate was $12.06, the asking rent was $14.00, the rates for the subject property were $10.92 to $24.00, but the appraiser concluded on a rate of$10.92.A rental rate of $12 would have been more appropriate.

The appraiser stated that the reimbursement recovery includes the common area maintenance, real estate taxes and insurance.Since the appraisal is on a fee simple basis and not lease fee, the real estate taxes will be accounted for in the capitalization rate.

The appraiser reviewed market sales to determine a capitalization rate.The market indicates a capitalization fate of 7.44%.The appraiser also report the Korpacz Real Estate Investor Survey reported rates of 7.24 to 7.49%.The appraiser rounded up to 8%; a capitalization rate of 7.44% as indicated by the market is appropriate.

The appraiser determined that the effective tax rate was 2.69%.He adjusted the effective tax rate because the lease terms include provision of recovery for property taxes.As stated previously, the valuation for ad valorem tax purposes is typically on an fee simple basis and not a leased fee.

In reviewing the data provided by the appraiser and making adjustments in the rental rate and calculation for the real estate taxes and comparing the results with the appraiser’s value determination of $8,100,000, the valuation determined by the Complainant’s appraiser is appropriate and supported by substantial and persuasive evidence.

ORDER

The assessed valuation for the subject property as determined by the Board of Equalization for St. Louis County for the subject tax day is AFFIRMED in part and SET ASIDE in part.

The assessed value for the subject property for tax years 2009 and 2010 is set at:

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, MO65102-0146, 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. [33]

Disputed Taxes

The Collector of St. Louis County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending the possible filing of an Application for Review, unless said taxes have been disbursed pursuant to a court order under the provisions of Section 139.031.8, RSMo.If no Application for Review is filed with the Commission within thirty days of the mailing date set forth in the Certificate of Service, the Collector, 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.

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 29, 2011.

STATE TAX COMMISSION OFMISSOURI

Maureen Monaghan

Hearing Officer