MONTE BLUE, )
v. ) Appeal Number 01-72501
JEROME OVERKAMP, ASSESSOR, )
MONTGOMERY COUNTY, MISSOURI, )
DECISION AND ORDER
The decision of the Montgomery County Assessor, which was approved by the County Board of Equalization, valuing the subject property at $10,300 (assessed value $1,240) is hereby AFFIRMED.
The issue in this case is whether the property is vacant and unused agricultural land or whether, instead, it is “devoted primarily to the raising of crops or livestock” which would warrant a value based upon productive use.
A hearing was conducted on November 8, 2001, before Hearing Officer Luann Johnson, at the Montgomery County Courthouse, Montgomery City, Missouri. Complainant appeared pro se and Respondent appeared in person and by counsel, Kelly Broniec, Prosecuting Attorney.
The property under appeal is a vacant 10 acre tract. Prior to January 1, 2001, the subject property had been classified and assessed as if it were part of an active agricultural endeavor with productive use values assigned to the land. Respondent reclassified the subject property as vacant and unused agricultural land for tax year 2001 and the property was valued at $10,300. The Board of Equalization affirmed. Complainant asserts that the tax increase was unreasonable and that farming activities are occurring on the property.
FINDINGS OF FACT
1. Jurisdiction over this appeal is proper. Complainant timely appealed to the State Tax Commission from the decision of the Montgomery County Board of Equalization.
2. The property under appeal is a vacant 10 acre tract identified as parcel number 13-50-21-000-000-008.000. The property is brushy, hilly, and unfenced. It sits approximately one-quarter mile off of a main road. Access is through an easement across a neighboring property.
3. Prior to January 1, 2001, the subject property was carried on the assessor’s books as agricultural land with a productive use value of $900 and an assessed value of $110. Complainant’s taxes for tax year 2000 were $5.61.
4. On January 1, 2001, the assessor changed the property’s classification to vacant and unused agricultural land with a resulting increase in value to $10,300 and an assessed value of $1,240. Complainant’s taxes increased to $63.66.
5. Complainant has not improved the subject property. Since the time that he purchased the property, he has used it for recreational purposes, to cut firewood, and has planted ginseng and picked up walnuts.
6. During 1999 and 2000 he sold walnuts and firewood from the property. 1999 income for walnuts was $120. 1999 income for firewood was $315. 2000 income for walnuts was $10. 2000 income for firewood was $240. All harvestable timber was removed from the property prior to the time that Complainant purchased it. Complainant has not replanted any trees. No ginseng has been harvested. Complainant’s agricultural use of the property is de minimis and does not warrant a finding that it should be valued based upon productive use.
7. Complainant does not know what the market value of the property would have been on January 1, 2001, and has had no appraisal done. He is not aware of the sales prices of comparable land in the area. His complaint is that his taxes have increased too much.
8. Respondent inspected and revalued the property for tax year 2001 based upon comparable sales within the county and considered factors that affect value such as the availability of paved roads, accessibility, easements, and utility. Comparable sales indicated a value of $2,000 to $3,000 per acre for small tracts of land. Adjustments were made to reach a conclusion of value for the subject property of $10,300, slightly more than $1,000 per acre. Respondent’s inspection revealed that there was no obvious agricultural activity occurring on said property.
9. The correct classification of the property is “vacant and unused agricultural land.” The correct value for the property is $10,300.
CONCLUSIONS OF LAW AND DISCUSSION
Burden of Proof
In order to prevail, Complainant must present substantial and persuasive evidence supporting his allegation that the subject property should be valued according to its productive use value. Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, at 897.
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959). Persuasive evidence is that evidence which has sufficient weight and probative value to convince the trier of fact.
The persuasiveness of evidence does not depend on the quantity or amount thereof but on its effect in inducing belief. Brooks v. General Motors Assembly Division, 27 S.W.2d 50, 53 (Mo. App. 1975).
Complainant has failed to establish that the property is “devoted primarily to the raising of crops or livestock” which would warrant a valuation based upon productive use. The occasional use of the property to harvest walnuts or to cut firewood is not sufficient to demonstrate that the property is primarily used to raise crops.
The classification made by the assessor and approved by the Board of Equalization, is AFFIRMED.
A party may file with the Commission an application for review of a hearing officer decision within thirty (30) days of the mailing of such decision. The application shall contain specific detailed grounds upon which it is claimed the decision is erroneous. Failure to state specific facts or law upon which the appeal is based will result in summary denial.
If an application for review of a hearing officer decision is made to the Commission, any protested taxes presently in an escrow account in accordance with this appeal shall be held pending the final decision of the Commission. If no application for review is received by the Commission within thirty (30) days, this decision and order is deemed final and the Collector of Montgomery 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. If any protested taxes have been disbursed pursuant to Section 139.031(8), RSMo, either party may apply to the circuit court having jurisdiction of the cause for disposition of the protested taxes held by the taxing authority.
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 January 4, 2002.
STATE TAX COMMISSION OF MISSOURI
DENYING APPLICATION FOR REVIEW
OF HEARING OFFICER DECISION
On January 4, 2002, Hearing Officer Luann Johnson entered her Decision and Order (Decision) affirming the assessment by the Montgomery County Board of Equalization.
Complainant’s Grounds for Review
Complainant timely filed his Application for Review of the Decision. Complainant took exception to Findings of Fact 2, 5, 6, 7 and 9 made by the Hearing Officer.
Standard Upon Review
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 a 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 opinion of the owner who testifies on the issue of correct classification, but may believe all or none of the expert’s testimony and accept it in part or reject it in part. St. Louis County v. Boatmen’s Trust Co., 857 S.W.2d 453, 457 (Mo. App. E.D. 1993); Vincent by Vincent v. Johnson, 833 S.W.2d 859, 865 (Mo. 1992); Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. 1991); Curnow v. Sloan, 625 S.W.2d 605, 607 (Mo. banc 1981).
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. Black v. Lombardi, 970 S.W.2d 378 (Mo. App. E.D. 1998); Lowe v. Lombardi, 957 S.W.2d 808 (Mo. App. W.D. 1997); Forms World, Inc. v. Labor and Industrial Relations Com’n, 935 S.W.2d 680 (Mo. App. W.D. 1996); Evangelical Retirement Homes v. STC, 669 S.W.2d 548 (Mo. 1984); Pulitzer Pub. Co. v. Labor and Indus. Relations Commission, 596 S.W.2d 413 (Mo. 1980); St. Louis County v. STC, 562 S.W.2d 334 (Mo. 1978); St. Louis County v. STC, 406 S.W.2d 644 (Mo. 1966).
A review of the record in the present appeal provides support for the determinations made by the Hearing Officer in Findings of Fact 2, 5, 6, 7 and 9. While reasonable minds might differ on the Hearing Officer’s Findings, a reasonable mind could have conscientiously reached the result which the Hearing Officer reached on each of these points. There is competent and substantial evidence to establish a sufficient foundation for the Findings. The Commission finds no basis to support a determination that the Hearing Officer acted in an arbitrary or capricious manner or 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 Findings as challenged by Complainant. The Complainant’s points are not well taken.
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.
Judicial review of this Order may be had in the manner provided in Sections 138.470 and 536.100 to 536.140, RSMo within thirty days of the date of the mailing of this Order.
SO ORDERED March 13, 2002.
STATE TAX COMMISSION OF MISSOURI
Sam D. Leake, Chairman
Bruce E. Davis, Commissioner
Jennifer Tidwell, Commissioner