STATE TAX COMMISSION OF MISSOURI
|MICHAEL ANDREW HELLWEG, JR., and,||)|
|v.||)||Appeal No. 17-112150|
|JAKE ZIMMERMAN, ASSESSOR,||)|
|ST. LOUIS COUNTY, MISSOURI,||)|
DECISION AND ORDER
The assessment made by the Board of Equalization of St. Louis County (BOE) is SET ASIDE. Complainants Michael Andrew Hellweg, Jr., and Christa Hellweg did not present substantial and persuasive evidence to rebut the presumption of correct assessment by the BOE and to establish the true value in money (TVM) of the subject property as of January 1, 2017. Respondent Jake Zimmerman, Assessor, St. Louis County, Missouri, (Respondent), presented substantial and persuasive evidence to rebut the presumption of correct assessment by the BOE and to establish the TVM of the subject property as of January 1, 2017.
Complainant Michael Andrew Hellweg, Jr., (Complainant) appeared pro se; Christa Hellweg appeared not.
Respondent appeared by Counsel Steven Robson.
Case heard and decided by Senior Hearing Officer Amy S. Westermann (Hearing Officer).
Complainant appealed on the ground of overvaluation. Respondent initially set the TVM of the subject property, as residential property, at $612,600. The BOE lowered Respondent’s valuation and set the TVM at $570,000. 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 or improvement to the property. Section 137.115.1 RSMo The State Tax Commission (STC) takes this appeal to determine the TVM for the subject property as the property existed on January 1, 2017, under the economic conditions as they existed on January 1, 2017.
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.
- Evidentiary Hearing. The issue of overvaluation was presented at an evidentiary hearing on August 15, 2018, at the St. Louis County Government Administration Building, 41 South Central Avenue, Clayton, Missouri.
- Identification of Subject Property. The subject property is identified by parcel/locator number 20U540207. It is further identified as 2009 Kehrsboro, Chesterfield, Missouri. (Complaint; Exhibit 1)
- Description of Subject Property. The subject property consists of a 1.02 acre residential lot improved by a 3,676 square foot, single-family, two-story home built in 1988. (Exhibit 1) The home includes four bedrooms; three full bathrooms; one half bathroom; a 1,895 square foot basement with 600 square feet of finished space; a three-car attached garage; one fireplace; a screened porch and a patio; and an in-ground pool. (Exhibit 1) The exterior consists of brick and frame construction. The home has a quality of construction grade of Q4 and a condition rating of C4. (Exhibit 1)
- Assessment. Respondent set a TMV on the subject property at $612,600 residential, as of January 1, 2017.
- Board of Equalization. The BOE lowered Respondent’s valuation of the subject property and set the TVM at $570,000.
- Complainant’s Evidence. Complainant opined that the subject property’s TVM as of January 1, 2017, was $430,000. To support his opinion of value, Complainant offered the following evidence:
|Exhibits A-M||Photographs of exterior and interior components of home showing deferred maintenance, damage, dated systems, dated original fixtures, and dated original finishes||Objection only to Exhibits H-M on ground Respondent not permitted access to interior of home to inspect for condition||Admitted|
|Exhibit N||Manta.com estimate of average cost of remodeling bathroom in St. Louis County in 2018, $11,752; https://www.google.com/amp/s/www.manta.com/cost-bathroom-remodeling-saint-louis-mo/amp; Complainant’s notation that subject property contains five bathrooms for an estimated total remodeling cost of approximately $55,000||None||Admitted|
|Exhibit O||Bid proposal from Cornerstone Restoration in the amount of $132,900.00 for exterior repairs and replacements, e.g., windows, aluminum fascia and soffit, porch columns, decking, etc.||Hearsay-preparer not present to testify and to be cross examined||Ruling reserved for Decision – Admitted to be given weight deemed appropriate in the context of all the evidence|
|Exhibit P||Bid proposal from Brake Landscaping & Lawncare, Inc., with options for driveway and walkway replacement ranging between $3,802.50 and $34,222.50||Hearsay-preparer not present to testify and to be cross examined||Ruling reserved for Decision – Admitted to be given weight deemed appropriate in the context of all the evidence|
|Exhibit Q||Bid proposal from First Choice Outdoors, Inc., for driveway and walkway replacement in the amount of $27,750.00.||Hearsay-preparer not present to testify and to be cross examined||Ruling reserved for Decision – Admitted to be given weight deemed appropriate in the context of all the evidence|
|Exhibit R||February 21, 2018, Zillow listing for comparable property located at 2025 Kehrs Mill Road; sale price $445,000 on 04/18/17; built 1999; four bedrooms; four bathrooms; 4,513 square feet||None||Admitted|
|Exhibit S||July 27, 2017, Zillow estimate for subject property; estimating subject property’s value at $559,232||None||Admitted|
|Exhibit T||February 21, 2018, Zillow listing for foreclosed property located at 16802 Kehrsdale Drive; foreclosure estimate $341,592 on undisclosed date; four bedrooms; three full bathrooms; one half bathroom; 3,498 square feet||None||Admitted|
|Exhibit U||July 27, 2017, Zillow listing for neighboring property located at 2015 Kehrsboro Drive; estimating neighboring property at $655,265; previous sale price $585,000 on 06/19/15; built 1988; four bedrooms; five bathrooms; 3,311 square feet|
|Exhibit V||Comparative market analysis of two-story residential homes in general area of subject property with sale prices ranging from $400,000 to $430,000 and sales occurring between October 2015 and July 2017||Hearsay-realtor/expert who prepared exhibit not present to testify and to be cross examined||Excluded|
|Exhibit W||Change of assessment notice dated May 8, 2017, noting five comparable sales occurring between March 2014 and August 2016 with sale prices ranging from $545,000 to $775,000||None||Admitted|
|Exhibit X||BOE Findings and Notice of Decision dated September 20, 2017||None||Admitted|
|Exhibit Y||Complaint for Review filed with the STC proposing a TVM of $430,000||None||Admitted|
Complainant testified in his own behalf. Complainant testified that he had purchased the subject property in 2012 for $420,000, and that the property had been listed with a realtor and publicly advertised. Complainant testified that the sale of the subject property was a “short sale.” Complainant testified that the subject property was encumbered by a mortgage in the “upper $300,000s.” Complainant testified that the subject property had not been listed for sale or appraised within the three years preceding the Evidentiary Hearing. Complainant testified that he would not list the subject property for sale and that no offers had been made to purchase the property. Complainant testified that repairs and improvements to the backyard were ongoing and that he had an open permit for the work.
On cross examination, Complainant testified that the purchase price of $420,000 was due to the subject property being purchased through a short sale. Complainant testified that a permit for extensive work in the backyard had been pulled in 2014 and remained open as of the date of the evidentiary hearing. Complainant testified that the scope of work included removing and replacing concrete, landscaping timbers, pool tile, ornamental iron fencing, and decking support. Complainant testified that he had performed most of the work himself as time allowed. With regard to Complainant’s Exhibits R, T, and U, Complainant testified that he had no knowledge of the buyers and sellers. Complainant testified that he is not a certified appraiser.
On rebuttal, Complainant testified that the subject property would not be worth the value Respondent said it was worth as of January 1, 2017, until the repairs are made. Complainant testified that the reason he was able to purchase the subject property at a reduced price through a short sale was because no one wanted to put money into it.
- Respondent’s Evidence. Respondent advocated that the BOE’s valuation of the subject property as of January 1, 2017, $570,000, was not correct. Respondent advocated lowering the BOE’s valuation to $546,000 based upon the following evidence:
|Exhibit 1||Appraisal Report of Missouri Certified Residential Real Estate Appraiser Debbie Freukes||Admitted|
|Exhibit 2||Aerial photograph of subject property’s back yard dated 03/15/09||Admitted|
|Exhibit 3||Aerial photograph of subject property’s back yard with new improvements dated 03/16/17||Admitted|
Exhibit 1, the Appraisal Report, analyzed four comparable properties. The four comparables were located within .58 miles of the subject property. The comparable properties had been sold in conventional transactions between May 2015 and November 2017. The sale prices of the comparable properties ranged from $535,000 and $645,000. (Exhibit 1) The comparable properties were similar to the subject property. All of the comparables were comprised of residential lots of between 1.03 acres and 1.36 acres in size and improved by 1.5 or two-story homes built between 1981 and1991 with square footage within 320 square feet of the subject property. (Exhibit 1) All of the comparable properties had four bedrooms. Two of the comparable properties had three full bathrooms and one half bathroom; one comparable had four full bathrooms and one half bathroom; and one comparable had two full bathrooms and two half bathrooms. (Exhibit 1) All of the comparables had basements with partially finished area; attached garages, patios and decks, and at least one fireplace. (Exhibit 1) All of the comparables were of brick and frame construction and quality ratings of Q4. Three of the comparables had condition ratings of C3 while one had a condition rating of C4. None of the comparable properties had a pool. Exhibit 1 made market-based adjustments to each of the comparables to account for the few differences between them and the subject property. The adjusted sale prices of the comparable properties ranged from $535,500 to $556,900. (Exhibit 1)
Exhibits 2 and 3 showed that major changes had been made to the backyard of the subject property between the dates the photographs were taken. Exhibit 3 showed that, as of March 2017, concrete had been added to areas directly behind the home and surrounding the in-ground pool. Exhibit 3 also showed the addition of stone or concrete steps, terraces, and retaining walls.
Respondent also presented the testimony of Missouri Certified Residential Real Estate Appraiser Debbie Fruekes (the Appraiser). The Appraiser testified that she did not have the information contained in Exhibits 2 and 3 at the time she performed the appraisal and prepared the appraisal report. The Appraiser testified that the extensive work to the subject property’s backyard retaining walls, the patio surface, stone steps, fencing, built-in hot tub, and pool area would have changed her opinion of the subject property’s TVM. The Appraiser testified that her research did not show any permits had been obtained for the work to the subject property’s backyard. The Appraiser testified that she had made a $50,000 condition adjustment to Comparable Nos. 1, 2, and 3 on the basis of Complainant’s statements regarding the needed repairs to the subject property. The Appraiser testified that, had she known of the improvements shown in Exhibit 3, her opinion of the subject property’s TVM as of January 1, 2017, could be $580,000 to $590,000.
On cross-examination, the Appraiser testified that, without being inside the subject property to specifically view the needed repairs, she did not know whether the $50,000 condition adjustment to the comparables was enough. The Appraiser testified that the photographs of the interior of the subject property did not show the entirety of the kitchen or the bathrooms but only components.
- Presumption of Correct Assessment Rebutted; Correct Value Established. Complainant’s evidence was not substantial and persuasive to rebut the presumption of correct assessment by the BOE. Respondent’s evidence was substantial and persuasive to rebut the presumption of correct assessment and to establish the correct value to be $546,000 as of January 1, 2017.
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, including the application of any abatement. 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 property and tangible personal property are assessed at set percentages of true value in money: residential property at 19%; commercial property at 32%; and agricultural property at 12%. Section 137.115.5 RSMo (2000) as amended.
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. Section 138.430.2 RSMo (2000) as amended. 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. Id.
Complainant’s Burden of Proof
To obtain a reduction in assessed valuation based upon an alleged overvaluation, the Complainant must prove the true value in money of the subject property on the subject tax day. Hermel, Inc., v. State Tax Commission, 564 S.W.2d 888, 897 (Mo. banc 1978). True value in money is defined as the price that the subject property would bring when offered for sale by one willing but not obligated to sell it and bought by one willing or desirous to purchase but not compelled to do so. Rinehart v. Bateman, 363 S.W.3d 357, 365 (Mo. App. W.D. 2012); Cohen v. Bushmeyer, 251 S.W.3d 345, 348 (Mo. App. E.D. 2008); Greene County v. Hermel, Inc., 511 S.W.2d 762, 771 (Mo. 1974). True value in money is defined in terms of value in exchange and not in terms of value in use. Stephen & Stephen Properties, Inc. v. State Tax Commission, 499 S.W.2d 798, 801-803 (Mo. 1973). In sum, true value in money is the fair market value of the subject property on the valuation date. Hermel, Inc., 564 S.W.2d at 897.
A presumption exists that the assessed value fixed by the BOE is correct. Rinehart, 363 S.W.3d at 367; Cohen, 251 S.W.3d at 348; Hermel, Inc., 564 S.W.2d at 895. “Substantial and persuasive controverting evidence is required to rebut the presumption, with the burden of proof resting on the taxpayer.” Cohen, 251 S.W.3d at 348. Substantial evidence can be defined as such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Cupples Hesse Corp. v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959). Persuasive evidence is evidence that has sufficient weight and probative value to convince the trier of fact. Cupples Hesse Corp., 329 S.W.2d at 702. 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). See also, 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).
There is no presumption that the taxpayer’s opinion is correct. The taxpayer in a STC appeal still bears the burden of proof. The taxpayer is the moving party seeking affirmative relief. Therefore, Complainant bears the burden of proving the vital elements of the case, i.e., the assessment was “unlawful, unfair, improper, arbitrary or capricious.” Westwood Partnership, 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. W.D. 1991).
Generally, a property owner, while not an expert, is competent to testify to the reasonable market value of his own land. Cohen, 251 S.W.3d at 348-49; Carmel Energy, Inc. v. Fritter, 827 S.W.2d 780, 783 (Mo. App. W.D. 1992). “However, when an owner’s opinion is based on improper elements or foundation, his opinion loses its probative value.” Carmel Energy, Inc., 827 S.W.2d at 783. A taxpayer does not meet his burden if evidence on any essential element of his case leaves the Commission “in the nebulous twilight of speculation, conjecture and surmise.” See Rossman v. G.G.C. Corp. of Missouri, 596 S.W.2d 469, 471 (Mo. App. E.D. 1980).
Weight to be Given Evidence
The Hearing Officer is not bound by any single formula, rule, or method in determining true value in money and 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 deemed necessary when viewed in connection with all other circumstances. Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. W.D. 1991). The Hearing Officer, as the trier of fact, is not bound by the opinions of experts but may believe all or none of the expert’s testimony or accept it in part or reject it in part. Exchange Bank of Missouri v. Gerlt, 367 S.W.3d 132, 135-36 (Mo. App. W.D. 2012).
Board Presumption and Computer-Assisted Presumption
There exists a presumption of correct assessment by the BOE – the BOE presumption. In charter counties or the City of St. Louis, 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 BOE 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 BOE, then it also would be applicable to the Respondent.
The computer-assisted presumption is applicable only if (1) the BOE lowered the value of the Assessor and Respondent is seeking to sustain the original assessment and (2) it has not been shown that the Assessor’s valuation was not the result of a computer assisted method. The BOE’s valuation is assumed to be an independent valuation.
In the present appeal, the BOE lowered the initial valuation of Respondent, and both Complainant and Respondent are now seeking to lower the BOE’s assessment; therefore, the BOE presumption applies to both Complainant and Respondent. The computer-assisted presumption is not applicable in this case.
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, 615 (Mo. App. W.D. 2000); Hermel, Inc., 564 S.W.2d at 897; 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. 1974).
“For purposes of levying property taxes, the value of real property is typically determined using one or more of three generally accepted approaches.” Snider v. Casino Aztar/Aztar Missouri Gaming Corp., 156 S.W.3d 341, 346 (Mo. banc 2005), citing St. Louis County v. Security Bonhomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977). “Each valuation approach is applied with reference to a specific use of the property—its highest and best use.” Snider, 156 S.W.3d at 346-47, citing Aspenhof Corp., 789 S.W.2d at 869. “The method used depends on several variables inherent in the highest and best use of the property in question.” Snider, 156 S.W.3d at 347. “Each method uses its own unique factors to calculate the property’s true value in money.” Id. “The ‘comparable sales approach’ uses prices paid for similar properties in arms-length transactions and adjusts those prices to account for differences between the properties. Id. at 348. “Comparable sales consist of evidence of sales reasonably related in time and distance and involve land comparable in character.” Id. (quotation omitted). “This approach is most appropriate when there is an active market for the type of property at issue such that sufficient data [is] available to make a comparative analysis.” Id.
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.
- 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.
Complainant’s evidence was neither substantial nor persuasive to support an opinion as to the true market value of the subject property as of January 1, 2017. Substantial evidence is that which is relevant, adequate, and reasonably supports a conclusion. Cupples Hesse Corp., 329 S.W.2d at 702. Persuasive evidence is that which causes the trier of fact to believe, more likely than not, the conclusion advocated is the correct conclusion. Id.
Complainant did not present any evidence utilizing one or more of three generally accepted approaches to valuing real property for ad valorem tax purposes. Complainant’s evidence focused on the proposed costs to cure the subject property’s deferred maintenance. However, Complainant’s evidence did not establish a proper starting value from which the fact finder could subtract the costs to cure. Complainant’s evidence resembled an attempt to utilize the replacement-cost-less-depreciation method for determining TMV, but the evidence failed to establish the depreciated value of the subject property to be subtracted from the value of the subject property if the repairs and replacements were completed. Although Complainant testified that he had purchased the subject property at a reduced price through a short sale, it would be improper to use the purchase price from 2012 as the depreciated value or starting point given that the purchase was not a typical market transaction and given that the purchase date was far removed from the tax date at issue in this case. Moreover, Respondent’s Exhibits 2 and 3 implied that Complainant not only cured at least some of the deferred maintenance of the backyard and pool area but made significant upgrades to the area. Respondent’s Exhibits 2 and 3 compel the conclusion that the repairs and upgrades to the backyard and pool area existed on January 1, 2017.
On the contrary, Respondent presented substantial and persuasive evidence to rebut the presumption of correct assessment by the BOE. The Appraiser, a state certified residential real estate appraiser, used one of the three court-approved methods for valuing residential property, the sales comparison method, to arrive at an opinion of TVM for the subject property. The Appraiser’s report analyzed sales data from comparable properties in the same geographic area as the subject property. The Appraiser made market-based dollar adjustments to the comparables, resulting in a range of adjusted sale prices ranging from $535,500 to $556,900. The Appraiser’s opinion of the subject property’s TVM, $546,000, fell squarely within that range.
The TVM for the subject property as determined by the BOE is SET ASIDE. The assessed value for the subject property for tax years 2017 and 2018 is $103,740 residential ($546,000 TVM).
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 October 23, 2018.
STATE TAX COMMISSION OF MISSOURI
Amy S. Westermann
Senior Hearing Officer
Certificate of Service
I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 23 day of October, 2018, to: Complainants(s) counsel and/or Complainant, the County Assessor and/or Counsel for Respondent and County Collector.