State Tax Commission of Missouri
MEENA & BHARAT TRIVEDI,)
v. ) Appeal No.11-89501
JAMES STRAHAN, ASSESSOR,)
TANEY COUNTY, MISSOURI,)
DECISION AND ORDER
Decision of the Taney County Board of Equalization reducing the assessment made by the Assessor is SET ASIDE.Complainants presented 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 2011 and 2012 is set at $550,000, commercial assessed value of $176,000.
Complainant, Meena Trivedi, appeared pro se.
Respondent appeared by Counsel Jason Coatney, Keck & Austin, LLC, Springfield, Missouri.
Case heard and decided by Senior Hearing Officer W. B. Tichenor.
Complainant appeals, on the ground of overvaluation, the decision of the Taney County Board of Equalization, which reduced 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, 2011.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 Taney County Board of Equalization.An evidentiary hearing was conducted on August 7, 2012, at the Taney County Justice Center, Forsyth, Missouri.
4.Complainants’ Evidence.Complainants filed and exchange Exhibit A – Appraisal Report – Jerry Jeschke, Mo. Certified General Real Estate Appraiser.There was no objection to Exhibit A.It was received into evidence.
Ms. Trivedi and her son Purav Trivedi appeared at the hearing to present information regarding two other motel properties which had sold in the area of the subject.Mr. Trivedi testified concerning these two sales.Counsel for Respondent objected to the testimony on the ground that no information had been previously exchanged regarding these sales.See, Ruling on Objection, infra.
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, 2011, to be $550,000.
5.Respondent’s Evidence.Respondent submitted the following exhibits: Exhibit 1 – one page of Property Record Card for the subject property;Exhibit 2 – copy of Application to Appeal Property Assessment 2011 for the subject property; and Exhibit 3 – written direct testimony of James Strahan.No objection was made to the exhibits.The exhibits were received into evidence.
6.Submission of Case on Exhibits.Counsel for Respondent consented, at hearing, to have the case submitted on the exhibits filed in the appeal.
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.
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.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.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.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 fact, receives the issue free of the presumption.The presumption is not evidence of value.
The presumption of correct assessment is rebutted when the taxpayer, or Respondent when advocating a value different than that determined by the Board, 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.The submission of the Complainants’ appraisal report, performed by a state certified real estate appraiser, established prima facie that the Board’s value was in error.The appraisal established the fair market value that should have been placed on the property.No evidence was presented that rebutted the conclusion of value in Complainants’ appraisal.
Respondent’s evidence did not rebut the presumption of correct assessment by the Board.
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.True value in money is defined in terms of value in exchange and not value in use.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.
The Jeschke appraisal was performed under the Standard For Valuation.There is no evidence from which the Hearing Officer can conclude that the value advocated by Respondent in Exhibits 1 and 3 is a valuation under the Standard For Valuation.
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. Complainants’ appraiser considered the three recognized approaches to value.He concluded value based upon the sales comparison approach.Respondent submitted that the property should be assessed at $307,740 (true value in money – $961,690) based upon the Honeycutt method of valuation.The Honeycutt method of valuation is a mass valuation of real property under a cost methodology.It does not constitute a cost, sales comparison, income, or any other approach that complies with the Commission Rule on Appraisal Evidence.
Ruling on Objection
Counsel for Respondent informed the Hearing Officer that he had been instructed by his client to agree to a submission of the appeal on the exhibits that had been filed and exchange in this case, that is Exhibit A, Exhibits 1, 2 and 3.Accordingly, he objected to the information which Mrs. Trivedi’s son testified to regarding two motel sales.
By Order dated 1/11/12 the parties were ordered to “file with the Commission the original of all exhibits to be used in their case in chief and serve a copy upon opposing counsel.”
Complainants informed the Hearing Officer via email on 5/31/12 they were submitting the appraisal that was received into evidence as Exhibit A.This document was properly filed with the Commission and exchanged with Counsel for Respondent.The email also referenced an internet link to what was alleged to be a “comparable property.”It also made reference to another “comparable property” which had sold last year.The email was not copied to Mr. Coatney or Mr. Strahan.Complainants’ letter dated 5/31/12 which transmitted the Jeschke appraisal made no reference to any other exhibits that would be file and exchange.
The only exhibit submitted on behalf of Complainants in accordance with the Exchange Order was Exhibit A.No exhibits were filed or exchange regarding the motel sales which Purav Trivedi testified to at the evidentiary Hearing.No written direct testimony was filed and exchanged on this subject.When a taxpayer elects to appear pro se, there is no special exception which permits a disregard for the orders of the Commission.The order for filing and exchange of exhibits is plain and simple.When a party fails to comply with the exchange order by submitting exhibits in a timely fashion, then the attempt to offer such evidence at the hearing is subject to objection.Direct testimony is not allowed at an evidentiary hearing unless the written direct testimony has been filed and served on all parties the same as any other exhibit.Counsel for Respondent’s objection is sustained.The testimony proffered on the subject of the two motel sales is exclude from evidence and not considered in rendering a decision in this appeal.
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, 2011.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.”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.
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.
The Jeschke appraisal constitutes substantial and persuasive evidence to establish the fair market value of the property under appeal at $550,000 as of 1/1/11.
Highest and Best Use Analysis
The appraiser concluded from his Highest and Best Use Analysis that as vacant the highest and best use would be to hold on speculation for later development.As improved, it was concluded that the highest and best use would be to raze the improvements to ready the site for re-development.In other words, the improvements (motel and supporting amenities) do not contribute value.Accordingly, the site value is the only value for the property.
Applicable Approaches to Value
The sales comparison approach, as to arriving at a land value, was deemed to be applicable and was developed by the appraiser.Data were presented on a total of five sales, however, the appraiser concluded on three of those to develop his sales comparison analysis.From this analysis indicated values of $549,600, $538, 150 and $544,104 for the land were concluded or per square foot values ranging from $11.75 to $12.00.It was concluded that $12 per square foot was appropriate and that was applied to arrive at a value of $549,600, round to $550,000.
As for the income approach it, like the cost approach, was determined to have no applicability in the present appraisal problem, since the improvements provide no contribution to value.The Hearing Officer concurs.
The Jeschke appraisal was based on a valuation date of June 7, 2010, just over six months prior to the valuation date of 1/1/11.No objection was made on this point.No evidence was offered into the record to establish that an adjustment in value should be made due to the six month difference in the appraisal valuation date and the ad valorem tax valuation date.Mr. Jeschke was not available for the Hearing Officer to inquire as to what, if any, change in his opinion of value might be warranted for a valuation as of January 1, 2012.A review of the Highest and Best Use Analysis and the Sales Comparison data leads the Hearing Officer to conclude that the valuation of the subject property on June 7, 2010, is reflective of its value on 1/1/11.There is no evidence to indicate that the approximate seven months variance in time would have an appreciable difference on a determination of value in this instance.
Respondent’s Burden of Proof
Respondent, when advocating a value different from that determined by the original valuation or a valuation made by the Board of Equalization, must meet the same burden of proof to present substantial and persuasive evidence of the value advocated as required of the Complainant under the principles established by case law.In this instance, the Assessor tendered the first page of the subject’s property record card and the Assessor’s testimony that:
“The assessed value of complainant’s property is 307740 and is based upon similarly situated property utilizing the Honeycutt method of valuation.Respondent believes the appraised value and the assessed value are accurate pursuant to the Honeycutt method of valuation and asks the commission to affirm such value.”
The effect of Respondent’s submission is to assert a fair market value for the property of $961,690, assessed value of $307,740.The Assessor’s opinion of value is rebutted by his own exhibit.Exhibit 1 reports the 2009 and 2010 assessed value for the subject property.That value is $307,740.The assessed value proffered by Mr. Strahan in this appeal.There is no data provided in Exhibit 1 which supports the fair market or appraised value of $961,690 for the 2011 tax assessment.The appraised and assessed values for the 2009 and 2010 assessment cycle are irrelevant to establishing the fair market value as of January 1, 2011.
Exhibit 1 does also contain the appraised and assessed values for 2011.Those values as previously noted above are $650,000 and $208,000 respectively.However, the summary page of the property record card fails to provide the necessary information that should be provided for a cost approach under the Commission rule.
The items that should be included in a cost approach appraisal are:
A. An opinion of the value of the subject land and a description of the methodology used to arrive at that opinion.
In this instance, there is an amount listed as the “appraised land” value of $138,522.However, this is for the concluded value of $649,999 as concluded by the Board of Equalization, not the value of $961,690 proffered by Mr. Strahan’s written direct testimony.There is no identification of the amount of the $961,690 land value that should be attributed to land value.There is no description of the methodology that was employed to conclude this unknown land value.
B. A narrative explanation of whether the replacement cost or the reproduction coast was used and why.
There is no statement either in Exhibit 1 or the Strahan testimony to establish whether his proposed value of $961,690 is replacement or reproduction cost.
C. An estimate of the reproduction cost or replacement cost new, including the method used and sources employed to arrive at that estimate.
No estimate of reproduction or replacement cost new for the subject improvements under the $961,690 value exists in Exhibit 1 or the Strahan testimony.The Assessor’s testimony is simply that the “assessed value of complainant’s (sic – complainants’) property is 307740 (sic – $307,740) and is based upon similarly situated property utilizing the Honeycutt method of valuation.”This does not establish what the reproduction or replacement cost new for the subject improvements was under the Honeycutt method of valuation.
D. The amount and type of depreciation applied with a narrative explanation of why the depreciation was applied and the methods employed.
Nothing in either the written direct testimony or Exhibit 1 provides any narrative explanation of the amount and type of depreciation that was applied to conclude a value of $961,690 from which the assessed value of $307,740 was calculated.There is in fact no indication that any depreciation from any source was applied.In performing a valuation utilizing a cost methodology depreciation from the three recognized categories, i.e. physical, functional and external, must be addressed and applied as warranted from a proper analysis.This was simply not provided and demonstrated by the documents which Respondent provided with regard to the $961,690 valuation.
E. A final indication of value.
The Respondent’s final indication of value is the same value that Exhibit 1 shows to have been the value for the 2009 – 2010 assessment cycle.This value was specifically rejected by the Board in its action on Complainant’s appeal.Respondent provided no indicated value from Exhibit 1 for the 2011 assessment.
The Commission rule goes on to establish that “Any other approach to value used should be explained with sufficient specificity to allow all other parties to reconstruct the approach used.A narrative explanation of why the approach was used should be included.”The Honeycutt methodology is employed for mass appraisal of property in many counties in Missouri, Taney County being one, based upon Mr. Strahan’s testimony.It does not generally lend itself to the valuation of a specific property once an appeal has come before the Commission.This is because in most instances, the “Honeycutt appraisal report” consists of a summary page of valuation amounts without any narrative explanation of how the methodology actually operates or the actual basis for the factors and values used in concluding a value.Providinga copy of the Honeycutt property record card is deficient in very significant factor, that being any highest and best use analysis.Absent that analysis, an appraiser is valuing the subject property blind.
The Commission rule was written in terms of what “should” be contained in an appraisal to be presented in an appeal, because there are instances in which the appraisal to be presented would not need to contain one or more of the recognized appraisal approaches.This is such a case based upon the Jeschke appraisal.The appraiser determined after his highest and best use analysis that neither the cost, nor the income approaches were appropriate for the present appraisal problem.The Hearing Officer concurs.
However, given that Respondent elected to proffer an opinion of value in contradiction to the value determined by the Board, the Respondent’s “Honeycutt cost appraisal” should have contained the elements detailed and addressed above.Absence meeting the standards set by the Commission rule of what “should” be contained in an appraisal presented in an appeal, the tendered valuation has little, if any, probative weight.“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.”
Submission of a property record card that concluded a value different than that asserted by Respondent’s written direct testimony brings into question the reliability of the Strahan opinion of value for the 2011 – 2012 assessment.That opinion is not supported by any facts upon which it is based.The only fact established by Exhibit 1 is that the Strahan opinion is based upon the assessed value for the property under appeal as of January 1, 2009.This is an insufficient basis of fact, accordingly, the testimony as to an opinion of value of $961,690 does not constitute substantial and persuasive evidence.
The assessed valuation for the subject property as determined by the Board of Equalization for Taney County for the subject tax day is SET ASIDE.
The assessed value for the subject property for tax years 2011 and 2012 is set at $176,000.
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.
The Collector of Taney 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 August 15, 2012.
STATE TAX COMMISSION OFMISSOURI
W. B. Tichenor
Senior Hearing Officer
Certificate of Service
I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 15th day of August, 2012, to:Meena Trivedi, 3775 W. State Hwy. 76, Branson, MO 65616, Complainant; Jason Coatney, 1112 E. Walnut, Springfield, MO 65806, Attorney for Respondent; James Strahan, Assessor, P.O. Box 612, Forsyth, MO 65653; Donna Neeley, Clerk, P.O. Box 156, Forsyth, MO 65653; Sheila Wyatt, Collector, P.O. Box 278, Forsyth, MO 65653.
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
 BOE Decision Letter, dated 7/7/11, filed with Complaint for Review of Assessment;Commercial real estate is assessed at 32% of its appraised value (true value in money, fair market value) – Section 137.115.5, RSMo.
 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)
 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).
 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).
 12 CSR 30-3.065 – Appraisal Evidence.The rule sets forth the fundamental elements which must appear in the cost, income and sales comparison approaches, or any other approach, when offered as evidence in appeals before the Commission.
 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).
Substantial and persuasive evidence is not an extremely high standard of evidentiary proof.It is the lowest of the three standards for evidence (substantial & persuasive, clear and convincing, and beyond a reasonable doubt).It requires a small amount of evidence to cross the threshold to rebut the presumption of correct assessment by the Board.The definitions, relevant to substantial evidence, do not support a position that substantial and persuasive evidence is an extremely or very high standard.
“Substantial evidence: Evidence that a reasonable mind would accept as adequate to support a conclusion; evidence beyond a scintilla.”Black’s Law Dictionary, Seventh Edition, p. 580.
The word scintilla is defined as “1. a spark,2. a particle; the least trace.” Webster’s New World Dictionary, Second College Edition.Black’s definition at 1347 is “A spark or trace <the standard is that there must be more than a scintilla of evidence>.”There must be more than a spark or trace for evidence to have attained the standard of substantial.Once there is something more than a spark or trace the evidence has reached the level of substantial.Substantial evidence and the term preponderance of the evidence are essentially the same.“Preponderance of the evidence.The greater weight of the evidence; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”Black’s at 1201.Substantial evidence is that a reasonable mind would accept as adequate to support the conclusion.Preponderance is sufficient to incline a fair and impartial mind to one side of the issue rather than the other, i.e. support the proposed conclusion.