Mid America Financial Corp. v. Zimmerman (SLCO)

ORDER AFFIRMING HEARING OFFICER DECISION

UPON APPLICATION FOR REVIEW

On December 13, 2013, Chief Counsel Maureen Monaghan, acting as Hearing Officer, entered her Decision and Order (Decision) setting aside the assessment by the St. Louis County Board of Equalization and setting the assessed value for the subject property for tax years 2007 and 2008 at $329,870. Respondent filed his Application for Review of the Decision. Complainant filed its Response. Respondent filed his Reply.

CONCLUSIONS OF LAW

Standard Upon Review

DECISION

Respondent’s Points on Review

Respondent put forth the following five points in support of his Application for Review:

1.                 The Hearing Officer erred in that she excused the taxpayer from affirmatively establishing independent evidence of the market value of the subject property.

2.                 the Hearing Officer erred in that she based the Decision on the presumption that the valuation by the Board of Equalization (BOE or Board) was valid and correct.

3.                  The Hearing Officer erred in holding that the median level of assessment for commercial properties in St. Louis County in 2007 was 29.4% and in applying the 29.4% assessment ratio to arrive at the assessed value for the subject property for the 2007 tax year.

4.                  The Hearing Officer erred in finding that Complainant presented substantial and persuasive evidence as to discrimination.

5.                 The Hearing Officer erred in making an internally inconsistent determination relative to the presumption of correct assessment by the Board of Equalization.

Commission’s Decision

The Commission will now address each of the Points raised under the following headings:Evidence of Market Value, Board Presumption, Median Assessment Level, Evidence of Discrimination, and Internal Inconsistency.For the reasons that will not be set forth in response to the Points just stated, the Commission finds the Respondent’s arguments to be unpersuasive to warrant either a modification or overturning of the Decision.

Evidence of Market Value

Respondent’s argument that Complainant was required to “independently prove the market value of its property” by some means other than the BOE determination of value is not well taken.Respondent’s argument rests upon his view of the holding in State ex rel. Ashby Road Partners, LLC, v. STC, 297 SW3d 80 (Mo. Banc 2009)Respondent lifts a portion of a sentence from the Ashby Road decision as a foundation for his argument – “Proof of their properties’ true value is necessary evidence”.

The full sentence from the Court’s opinion reads; “Proof of their properties’ true market values is necessary evidence for their discrimination claims because the commission is not compelled to accept the assessor’s determination of true market value as the true market value of the taxpayer’s property.” It must be noted at this point that the Ashby Road Court refers throughout its decision to the “assessor’s valuation or value.”In Ashby Road, the St. Louis County BOE had affirmed the assessor as to the value of the property under appeal and accordingly, the BOE’s value was same as the assessor’s value.In the present appeal this is not the case.

Nevertheless, the language of the Court that is on point and controlling with reference to this particular argument is found later in the Opinion.The Court specifically holds:

“Property owners can choose to present the assessor’s values of the properties as their only evidence of the properties’ true market values. The consequence of their choice, as the party with the burden of proof, is that their chosen evidence must persuade the commission that the assessor discriminated against them by assessing their properties at a higher percentage of value in comparison with other similar properties in the taxing area, and, if their evidence does not persuade, property owners will lose their claims.”(Ashby Road p. 88)

In like manner, a taxpayer can elect to present the BOE appraised or fair market value as their only evidence of the true value in money of the property under appeal.That is what was done in this appeal. (Exhibit A)As the Hearing Officer correctly noted, the Ashby Road Court established that a property owner cannot be compelled to present evidence in any particular form.The Board in this instance established an appraised (fair market or true value in money) for complainant’s property. That value was $1,122,000.This is the only valuation evidence in the record. Respondent did not establish that case law requires “independent” evidence to establish value, whatever Respondent may have meant by the phrase “independent evidence.”The Hearing Officer’s conclusion that the Board’s determination of an appraised value of $1,122,000 was substantial and persuasive evidence of value, in the absence of any other valuation evidence in the record, was not erroneous, arbitrary, capricious, or unreasonable.It did not constitute an abuse of discretion, nor was it contrary to law.

Board Presumption

Respondent’s next argument that the Hearing Officer’s decision was in error because it rested upon the presumption that the valuation by the BOE was valid and correct is likewise not persuasive.The Decision’s statement of the law that “There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization” is correct. The Board’s assessment involves a finding and the application of the correct assessment ratio.It is no different than the responsibility of an assessor.The true value or market value must be ascertained and then by statute the assessment ratio of 32 percent must be applied to commercial property.This produces the assessed value.In other words, the presumption is that the Board correctly found the appraised value and correctly applied the ratio.In this instance the Board made its determination as to the fair market value of Complainant’s property.No evidence was presented by Complainant or Respondent to challenge that value.The real issue in this appeal was whether the correct assessment ratio had been applied.The part of the presumption that was rebutted related only to what assessment ratio should have been applied.The presumption as to a finding of the correct appraised value was not rebutted or even attacked.

The reliance by the Hearing Officer on the evidence of value as determined by the Board did not allocate the burden of proof to the Respondent. The assessor did not have a burden of proof on the issue of the value of the property, but could simply rest upon the presumption that the Board had correctly ascertained the true value in money for the subject property – $1,122,000. This is what the Assessor elected to do. No objection was made by Respondent that Complainant’s evidence – the BOE Decision – should not be admitted into evidence.Accordingly, the Hearing Officer did not err in permitting the introduction of the BOE’s Decision establishing that it had found the appraised value of $1,122,000.The Hearing Officer did not err in giving that evidence of the $1,122,000 value the weight which she deemed it to be entitled.

Median Assessment Level

Respondent’s argument under this point rests solely on the assertion that the April 29, 2011 Decision and Order of the Hearing Officer does not represent a final decision of the Commission in that there was no provision informing the parties of their right to file an Application for Review. Given that the ratio determined by the Hearing Officer in the proceeding was the ratio tendered and asserted by Respondent from his ratio study, the argument lacks merit and is disingenuous. Respondent was well aware that in the 2007 ratio assessment cases the issues of level of assessment and determination of true value in money were bifurcated by the Hearing Officer.The bifurcation in no way invalidates or even draws into question the conclusion made in the Hearing Officer’s April 29, 2011 Decision as to the median assessment ratio for the 2007-08 assessment in St. Louis County for commercial property.The evidentiary record in the proceedings leading to the April 29, 2011 determination of the correct ratio constituted substantial and persuasive evidence to support the finding of the Hearing Officer.The List of Appeals contained in the April 29, 2011 Decision lists the present appeal.Respondent was likewise well aware that once the determination of value for Complainant’s property was established, that the ratio produced as a result of Respondent’s own ratio study and asserted for the 2007 commercial assessment would then be applied in all of the listed 2007 appeals.The Hearing Officer in the present Decision simply completed the appeal process by applying the determination of ratio made on April 29, 2011 to the value established by Complainant’s evidence.Had Respondent wanted to challenge the application of his own 29.4% commercial ratio in the present appeal, he should have presented evidence addressing that matter.Respondent’s evidentiary silence on the point gives rise to an implication of consent to that ratio.

The median assessment ratio for the 2007-08 assessment cycle in St. Louis County for commercial property is 29.4% as determined and established by the Decision and Order dated April 29, 2011.The Hearing Officer correctly evaluated the actual assessment imposed upon Complainant’s property and the medial level of assessment that had been established by the prior Decision and Order. The Hearing Officer did not err in concluding that the Complainant was entitled to have its assessment reduced to the percentage of value at which others were taxed, i.e. 29.4% – the assessment placed upon the general mass of other commercial property in St. Louis County. SiousCity Bridge Co. v. Dakota County Nebraska, 43 SCt 190 (1923)

Respondent’s argument that the median level of assessment established from Respondent’s own ratio study of 29.4% should be compared to the statutory assessment ratio of 32% is not well taken.This simply is not the appropriate methodology.It is not the standard adopted by the Commission or the Supreme Court.  See, Savage v. State Tax Commission, 722 S.W.2d 72 (Mo. banc 1986); West County BMW v. Muehlheausler, STC Appeal No. 05-12569 (March 17, 2009) Both Savage and BMW require a comparison not between the median assessment ratio and the statutory assessment ratio, but between the average level of assessment and the actual level of assessment for the subject property.The Hearing Officer correctly and properly made this comparison and evaluation, ascertaining the subject property’s assessed value using the statutory ratio applied to the true value in money set by the Board and the subject property’s assessed value using the median assessment ratio established from Respondent’s own ratio study.The difference in the two assessed values was grossly excessive.  Neither Missouri Courts nor the Commission has established a bright line test to identify grossly excessive assessment in discrimination cases.The assessment in each given case must be analyzed against the assessment under the median ratio to address the grossly excessive factor.The Hearing Officer did not err in making the analysis, comparison and conclusion in this appeal. 

Evidence of Discrimination

Respondent’s assertion that there is not substantial and persuasive evidence upon which the Hearing Officer could base the Decision is not well taken.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.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.

In this instance, there are only two elements to be established, true value in money of the subject property and the median assessment ratio for the 2007-2008 assessment.The irrefutable, unchallenged, unrebutted evidence is that the Board of Equalization established the appraised value of the property under appeal to be $1,122,000.The presumption at law that the Board correctly determined value was not in any form or fashion challenged by either party in this proceeding.Accordingly, the Board’s determination of value stands for purposes of the valuation issue in the appeal.The Board’s conclusion of value, in the absence of any contrary evidence, is certainly sufficient to incline a fair and impartial mind to determine that it satisfied the valuation factor of the discrimination equation. To have simply dismissed or ignored the Board’s determination of fair market value without a scintilla of evidence to establish any other value would have certainly have been an arbitrary, capricious and unreasonable conclusion by the Hearing Officer.However, such was not the case.The Hearing Officer did not abuse her discretion as the trier of fact in finding the fair market value as determined by the Board.

As to the median assessment ratio for the 2007-08 assessment, the evidence was likewise irrefutable, unchallenged, and unrebutted. The Hearing Officer had previously found in favor of the Respondent on the factor of the 2007-08 median assessment ratio.The evidence in the prior proceeding leading to the conclusion of the 29.4% commercial ratio clearly met the substantial and persuasive standard.Respondent made no attempt to challenge that ratio or the evidence upon which it was based in the present appeal.Accordingly, that evidence established that the median was not 32% as set by statute, but it was only 29.4%.There is simply no rational basis upon which the Hearing Officer could in the face of Respondent’s own ratio study have concluded that the assessment ratio to be applied was 32%.

The evidence upon which the Hearing Officer based the Decision met the standard of substantial and persuasive both as to the value of the property and the assessment ratio to be applied.

Internal Inconsistency

Respondent’s “internally inconsistent” argument misstates the action of the Hearing Officer and fails to grasp the two elements of an assessment.The BOE determination was simply that the fair market value of the property for 2007-08 was $1,122,000.As has previously been addressed the presumption that this valuation was correct was not rebutted.What was rebutted, as has also been discussed, by the Respondent’s own ratio study was that the median commercial ratio was 32%.At the time the Board determined value, the statutory assessment ratio of 32% was applied.It was at that time the appropriate thing to do.However, the evidence later developed established that the application of the statutory assessment ratio was not appropriate. There is no inconsistency in the determinations and conclusions of the Hearing Officer that the Board’s appraised value stands, but the statutory assessment ratio in

this appeal falls and the correct ratio of 29.4% must be applied.The Decision correctly recognizes the two separate factors of the discrimination equation – value and ratio, the basis for all ad valorem property assessment.

Pending Motion for Summary Judgment Claim

Respondent in his Reply for the first time presented a claim based on his assertion that a Motion for Summary Judgment is awaiting final STC Decision and Order in other cases.The issue was not presented in the Application for Review and no request for leave to present this new claim was made.Accordingly, the Commission does not view the point to have been timely presented to the Commission.Nevertheless, as to this particular appeal the Motion for Summary Judgment has been rendered moot by the Hearing Officer’s Decision finding the assessment value for Complainant’s property.

Summary & Conclusion

A review of the record in the present appeal provides ample 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 erroneous, arbitrary, capricious or unreasonable manner, or that she abused her discretion as the trier of fact and concluder of law in this appeal.  Hermel, Inc. v. STC, 564 S.W.2d 888 (Mo. 1978); Black v. Lombardi, 970 S.W.2d 378 (Mo. App. E.D. 1998); Holt v. Clarke, 965 S.W.2d 241 (Mo. App. W.D. 1998); Smith v. Morton, 890 S.W.2d 403 (Mo. App. E.D. 1995); Phelps v. Metropolitan St. Louis Sewer Dist., 598 S.W.2d 163 (Mo. App. E.D. 1980).

 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 May 12 , 2014.

 STATE TAX COMMISSION OF MISSOURI

Randy B. Holman, Commissioner

Victor Callahan, Commissioner

MID AMERICA FINANCIAL CORP.,	)
	)
Complainant,	)
	)
v.	)	Appeal Number 07-10681
	)
JAKE ZIMMERMAN, ASSESSOR,	)
ST. LOUIS COUNTY, MISSOURI,	)
	)
Respondent.	)

DECISION AND ORDER

 HOLDING

 St. Louis County Board of Equalization’s assessment SET ASIDE.Complainant presented substantial and persuasive evidence to rebut the presumption of correct assessment by the Board of Equalization.

True value in money and assessment ratio for the subject property for tax year(s):

True Value 2007-2008	Assessment Ratio	Assessed Value
$1,122,000	29.4	$329,870

Complainant appeared by counsel, Thomas Campbell.Respondent appeared by Attorney Edward Corrigan.

Case heard and decided by Hearing Officer Maureen Monaghan.

ISSUE

Complainant appeals, on the grounds of overvaluation and discrimination, the decision of the County Board of Equalization.Having considered all of the competent evidence upon the whole record, the Hearing Officer finds that the Complainant failed to present substantial and persuasive evidence as to overvaluation, however, the Complainant presented substantial and persuasive evidence as to discrimination.The following Decision and Order is entered.

FINDINGS OF FACT

1.Jurisdiction.Jurisdiction over this appeal is proper.Complainant timely appealed to the State Tax Commission from the decision of the County Board of Equalization.

2.Schedule and Procedure.On February 27, 2013, the State Tax Commission issued an Order setting forth the schedule and procedures for this appeal.The Schedule and Procedure required that each party file and exchange exhibits and written direct testimony to establish their case in chief on or before July 1, 2013.Complainant filed and exchanged the exhibits set out below under Complainant’s Evidence.Respondent did not file and exchange exhibits or written direct testimony.Respondent was ordered to designate Assignment of Attorney by July 1, 2013.No designation or entry of appearance was filed with the State Tax Commission.Respondent had until September 20, 2013, to file objections and rebuttal exhibits.Respondent did not submit objections to Complainant’s exhibits or submit rebuttal exhibits.On September 23, 2013, Respondent was ordered to file, on or before October 11, 2013, a Certification of Hearing indicating a good faith intention to require a hearing or allowing the case to be submitted on exhibits.Respondent failed to file with the Commission.

3.Subject Property.The subject property is identified by map parcel number: 28O240552 and is further identified as 487 Old Smizer Mill Rd, Fenton, Missouri.

4.Assessment.The Assessor appraised the property at $1,460,800, an assessed commercial value of $467,450.The Board of Equalization determined the true value to be $1,122,000, an assessed commercial value of $359,040.

5.Complainant’s Evidence.Complainant filed with the Commission the following documents:Exhibit A– The Board of Equalization’s finding of value and County’s Commercial Review Document.

6.Median Level of Assessment.The State Tax Commission previously found that the median level of assessment for commercial property in St. Louis County in 2007 is 29.4%.The previous decision is incorporated by reference.

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.[1]

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.[2]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.[3]

Presumption In Appeals

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[4] 

Valuation

Section 137.115 of the Missouri Revised Statutes 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 purchased by one who is desiring to purchase but who is not compelled to do so. [5] The value used for the true value in money of a subject property is the fair market value of the subject property on the valuation date. [6]

There is a presumption of validity, good faith, and correctness by the County Board of Equalization.[7] The case law and the Commission’s decisions have repeatedly held the presumption of a correct assessment may only be rebutted when substantial and persuasive evidence is presented to establish that Board’s valuation is erroneous.[8] In the absence of such evidence, the presumptions are assumed to be correct.

The determination of true value is necessary for both overvaluation and discrimination claims.Complainant submitted as Exhibit A the Board of Equalization’s decision as to the true value in money of the Complainant’s property.The Supreme Court[9] holds that the Commission cannot compel a taxpayer to present evidence in a particular form.Therefore, complainants are entitled to present evidence of the true value in money of their respective properties in the form of the Board of Equalization decisions. The hearing officer’s decision must be based upon its inquiry into relevant matters and evidence presented in the case or solely upon the evidence presented in the case.”

The Complainant’s exhibit establishes true value in money of the subject property.The Complainant’s exhibit does not establish that the property was overvalued.The Complainant’s Exhibit A does satisfy the first prong of the test to prove discrimination.

Discrimination

In order to obtain a reduction in assessed value based upon discrimination, the Complainant must (1) prove the true value in money of their property on January 1, 2007; and (2) show an intentional plan of discrimination by the assessing officials resulting in an assessment of that property at a greater percentage of value than other property, generally, within the same class within the same taxing jurisdiction or show that the level of an assessment is so grossly excessive as to be inconsistent with an honest exercise of judgment. [10]

As stated previously, the first prong of the test to prove discrimination has been addressed.The next step is to review the assessment of the subject property and properties within the same class.

There is no evidence that there was an intentional plan of discrimination by the assessing officials so we must determine if the Complainant has presented substantial and persuasive evidence to show that the level of their assessment is so grossly excessive as to be inconsistent with an honest exercise of judgment.“By requiring that the level of an assessment be so grossly excessive as to be inconsistent with an honest exercise of judgment in cases in which intentional discrimination is not shown, the courts and the Commission refrain from correcting assessments which reflect no more than de minimus errors of judgment on the part of assessors. Such a standard recognizes that ‘[w]hile practical uniformity is the constitutional goal, absolute uniformity is an unattainable ideal’.” [11]  

The median level of assessment for a particular class of real property and the actual assessment imposed on the property of the taxpayer alleging discrimination must be evaluated.[12] The median level of assessment is determined by independently determining the market value of a representative sample of commercial properties within the County; (b) determining the assessed value placed on the property by the Assessor’s office for the relevant year; (c) dividing the assessed value by the market value to determine the level of assessment for each property in the sample; and (d) determining the mean and median of the results. The Commission, in a previous hearing, held that the median level of assessment for commercial properties in St. Louis County in 2007 was 29.4%. [13]

The subject property’s assessed value as determined by the Assessor was $467,450 using an assessment ratio of 32%.The subject property’s assessed value using the Board’s determination of true value and a median assessment ratio of 29.4% is $329,870.The difference between the assessed values is $137,580.The subject property was assessed at 42% of its true value.

The Complainant has established that the assessment was more than a de minimus error in judgment on the part of the assessor and thereby established their right to have his “assessment reduced to the percentage of that value at which others are taxed…”[14] in other words, the taxpayer’s assessed valuation should be set at the assessment “placed upon the general mass of other taxable property in the county.”

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 SET ASIDE.The assessed value for the subject property for tax years 2007 and 2008 is set at $329,870.

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. [15]

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 December 13, 2013.

STATE TAX COMMISSION OFMISSOURI

Maureen Monaghan

Hearing Officer