State Tax Commission of Missouri
MONTY & DEBBIE MCLALLEN,)
)
Complainants,)
)
v.) Appeal Number 10-67500
)
LAURA POPE, ASSESSOR,)
MCDONALD COUNTY, MISSOURI,)
)
Respondent.)
DECISION AND ORDER
HOLDING
Decision of the McDonald County Board of Equalization sustaining the assessment made by the Assessor is SET ASIDE.True value in money for the subject property for tax year 2010 is set at $95,820, residential assessed value of $18,210. Complainants appeared pro se.Respondent appeared in person and by Prosecuting Attorney Jonathan Pierce.
Case heard and decided by Senior Hearing Officer W. B. Tichenor.
ISSUE
Complainant appeals, on the ground of overvaluation and discrimination,[1] the decision of the McDonald County Board of Equalization, which sustained the valuation of the subject property.The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2009.The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.
FINDINGS OF FACT
1.Jurisdiction.Jurisdiction over this appeal is proper.Complainants timely appealed to the State Tax Commission from the decision of the McDonald County Board of Equalization.A hearing was conducted on March 22, 2011, at the McDonald County Courthouse, Pineville, Missouri.
2.Assessment.The Assessor appraised the property at $47,950, a residential assessment of $9,110.[2]The Board of Equalization sustained the assessment.[3]
3.Subject Property.The subject property is located at 827 Elk River Road, Pineville, Missouri, on a dirt/gravel road.[4]The property is identified by map parcel number 16-2-4-2-1-1.002. It is located in the East Half of the Northwest Fractional Quarter of Section 4, Township 21 North, Range 32 West in McDonald County, Missouri. The property consists of 2.98 +/- acres improved by residential structures.See, Hearing Officer Affirms Assessor’s Acreage, infra.The 2009 property record card shows a house with a value of $31,480, a utility shed with a value of $490, a barn with a value of $3,960 and a second barn with a value of $2,920.The house had been replaced by a residence partially finished in 2008.
4.Complainant’s Evidence.Mrs. McLallen testified on behalf of Complainants.The following exhibits were received into evidence on behalf of Complainants:
|
EXHIBIT |
DESCRIPTION |
|
A |
Copy of Survey Recorded in Book Z, Page 999 – McDonald County Records |
|
B |
Handwritten statement of Debbie McLallen |
|
C |
Affidavit of Sue Ann Stokes, Mapper – McDonald County |
|
D |
Subject Photo Page – Appraisal of Subject listing value of $118,000 |
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E1 |
Warranty Deed, dated 4/1/1998 |
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E2 |
Warranty Deed, dated 4/22/02 |
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F |
2001 and 2002 Tax Bills on Subject Property – Showing 10 acres |
|
G |
2007-08 Property Record Card – Subject |
|
H |
McDonald County Parcel information on Subject |
|
I |
Copies of two pages out of plat books showing subject and adjoining tracts |
|
J |
Aerial Photographs of Subject |
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K |
Sketch of Section 4 and East Half of NW Quarter of Section 4. |
5.Respondent’s Evidence.Respondent testified as to the assessment of Complainant’s property.The following exhibits were received into evidence on behalf of Respondent:
|
EXHIBIT |
DESCRIPTION |
|
1 |
2008 Property Record Card on Subject |
|
2 |
Small Acreage Valuation Table |
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3 |
2009 Property Record Card on Subject |
6.Complainants’ Issue at Hearing.The issue addressed by Complainants at the evidentiary hearing was that the total acreage of their tract should be 10 acres and not 3.All the exhibits received into evidence on behalf of Complainants address this sole issue, except for Exhibit D.See, Hearing Officer Affirms Assessor’s Acreage, infra.
7.Claim of Discrimination Abandoned.Complainants presented no evidence to establish an intentional plan by the assessing officials (Assessor or BOE) to assess the property under appeal at a ratio greater than 19% of true value in money, or at a ratio greater than the average 2009 residential assessment ratio for McDonald County.Therefore, the claim of Discrimination is deemed to have been abandoned in the appeal.
8.Erroneous Valuation.The Assessor’s valuation of the structure shown on Exhibit 1 and further described on Exhibit 3 does not correctly identify the residential improvement on the Complainant’s property.A new residence was constructed on the property in 2008, at a cost of $82,000.[5]The Complainants’ property was appraised in 2010 for $116,500.[6]The Board’s assessment was based upon the 2009 property record card and not upon information relating to the home constructed in 2008.The presumption of correct assessment by the Board as to the assessment of the house on the subject property was rebutted.
9.Valuation of Property.The subject tract of land is given a value of $6,720.[7] The house partially completed as of 2009 is given a value of $82,000.The evidence was inconclusive as to the additional construction and improvement that was done during 2009.Therefore the 2009 value will remain as the 2010 value.[8]The utility shed, and two barns are given the values of $490, $3,960 and $2,920, as determined by the Assessor.Therefore, the total value of the subject property as of January 1, 2009 is $95,820, a residential assessed value of $18,210.
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.[9]
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.[10]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.[11]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.[12]This presumption is a rebuttable rather than a conclusive presumption.It places the burden of going forward with some substantial evidence on the taxpayer – Complainant.The presumption of correct assessment is rebutted when the taxpayer presents substantial and persuasive evidence to establish that the Board’s valuation is erroneous and what the fair market value should have been placed on the property.[13]The presumption of correct assessment by the Board as to the subject land and the house on the property under appeal was rebutted.See, Finding of Fact 8. Erroneous Valuation, supra.The presumption as to correct assessment of the other improvements was not rebutted.
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.[14]True value in money is defined in terms of value in exchange and not value in use.[15]It is the fair market value of the subject property on the valuation date.[16]Market value is the most probable price in terms of money which a property should bring in competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeable and assuming the price is not affected by undue stimulus.
Implicit in this definition are the consummation of a sale as of a specific date and the passing of title from seller to buyer under conditions whereby:
1.Buyer and seller are typically motivated.
2.Both parties are well informed and well advised, and both acting in what they consider their own best interests.
3.A reasonable time is allowed for exposure in the open market.
4.Payment is made in cash or its equivalent.
5.Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.
6.The price represents a normal consideration for the property sold unaffected by special financing amounts and/or terms, services, fees, costs, or credits incurred in the transaction.[17]
Hearing Officer Finds Value
The evidence on this record establishes that the Complainants’ property must be valued for 2010 with the house partially constructed in 2008.The previous house is removed from the 2010 assessment.The land value is corrected from a property on a paved road to a property on a dirt or gravel road.The remaining improvements are valued as established by the Assessor for the 2009 – 2010 assessment cycle.See, Finding of Fact 9. Valuation of Property, supra.
Hearing Officer Affirms Assessor’s Acreage[18]
Missouri Courts have said that an assessor should not have to be a skilled title examiner and that the assessor does not have the authority to determine ownership for any purpose other than property tax.[19]The evidence in this record is that sometime in 2008 the Assessor’s office was provided a survey[20] – Exhibit A – of Complainants’ land.Based on the survey the acreage of Complainants’ land in the Assessor’s records was changed from 10 acres to 3 acres.
The survey was made on February 13, 2008.The survey is referred to on its face as a “retracement survey.”A retracement survey is a type of boundary survey.[21] This particular
survey is a retracement or resurvey of the legal description provided in Exhibit E1[22] and Exhibit E2.[23]The legal description given in each of the two deeds reads as follows:
All that part of the East Half of the Northwest Fractional Quarter of Section 4, Township 21 North, Range 32 West, McDonald County, Missouri, lying North and West of Elk River.EXCEPT that part lying West of the following described line:Commencing at the Northwest corner of Section 4; thence East along the North line of Section 4, a distance of 1611.44 feet to a point in line with a fence from which a set iron pin bears South 0 degrees 40 minutes 10 seconds West, 31.95 feet; thence South 0 degrees 40 minutes 10 seconds West along an existing fence, and an extension thereof 476.19 feet to a set iron pin; thence South 00 degrees 40 minutes 10 seconds West, to the right bank of Elk River descending.
There is not in either deed a statement that the acreage of the land being conveyed is 10 acres more or less or 3 acres more or less or any other reference to the size of the tract being conveyed.
The survey contains on its face the following two notes:
“NOTE:[24]The existing legal description calls property to lie North and West of Elk River.The present location of Elk River on February 13, 2008 was noted and used as boundary for this retracement survey.”
“NOTE:[25]Sometime since 1966 the channel of Elk River has moved from its previous location (as noted above) to its present location.The movement appears to have been sudden as an island now exists between the two channels.It appears Elk River has been in its present location since at least 1997.This is based upon a previous survey by Monnie Sears in September, 1997 which locates the position of Elk River very close to what was observed on February 13, 2008.On March 7, 2008 when the Old Channel of Elk River was located, water was flowing through it.”
From the foregoing it can be concluded that at the time of the conveyance of the subject property to Deanna Kay Pitman (4/1/1998) the right bank of the Elk river descending was as shown in the upper portion of Exhibit A, which encloses a tract of 2.98 acres +/- Excluding Roadway, and that the Southeast boundary of the tract consists of a line 840.89 feet in length[26] running in a Northeasterly direction from the Southwest Corner to the Northeast Corner of the subject tract.
Furthermore, at the time of the conveyance from Pittman, et al to Complainants on April 22, 2002, the right bank of the Elk River descending was established as above described, placing the Southeast boundary of the tract of land conveyed on the 840.89 foot line described above.Accordingly, the Hearing Officer finds that the determination by the Assessor’s staff that the subject tract contained 2.98 acres must be affirmed.
ORDER
The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization for McDonald County for the subject tax day is SET ASIDE.
The assessed value for the subject property for tax year 2010 is set at $18,210.
Application for Review
A party may file with the Commission an application for review of this decision within thirty days of the mailing date set forth in the Certificate of Service for this Decision.The application shall contain specific facts or law as grounds upon which it is claimed the decision is erroneous.Said application must be in writing addressed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, MO65102-0146, and a copy of said application must be sent to each person at the address listed below in the certificate of service.
Failure to state specific facts or law upon which the application for review is based will result in summary denial. [27]
Disputed Taxes
The Collector of McDonald County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending the possible filing of an Application for Review, unless said taxes have been disbursed pursuant to a court order under the provisions of Section 139.031.8, RSMo.If no Application for Review is filed with the Commission within thirty days of the mailing date set forth in the Certificate of Service, the Collector, as well as the collectors of all affected political subdivisions therein, shall disburse the protested taxes presently in an escrow account in accord with the decision on the underlying assessment in this appeal.
Any Finding of Fact which is a Conclusion of Law or Decision shall be so deemed.Any Decision which is a Finding of Fact or Conclusion of Law shall be so deemed.
SO ORDERED May 23, 2011.
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 23rdday of May, 2011, to:Monty McLallen, P.O. Box 324, 827 Elk River Road, Pineville, MO 64856, Complainant; Jonathan Pierce, Prosecuting Attorney, P.O. Box 566, Pineville, MO 64856, Attorney for Respondent; Laura Pope, Assessor, P.O. Box 726, Pineville, MO 64856; Barbara Williams, Clerk, P.O. Box 665, Pineville, MO 64856; Brenda Gordon, Collector, P.O. Box 725, Pineville, MO 64856.
___________________________
Barbara Heller
Legal Coordinator
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
573-751-2414
573-751-1341 Fax
[2] Residential property is assessed at 19% of true value in money (fair market value), Section 137.115.5(1), RSMo
[5] Information provided by Complainants to the Hearing Officer prior to going on the record and read into the record at the beginning of the hearing, without objection of Complainants.Testimony of Mrs. McLallen, $82,000 spent on the new residence as of January 1, 2009.
[12] 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)
[13] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959)
[14] St. Joe Minerals Corp. v. State Tax Commission, 854 S.W.2d 526, 529 (Mo. App. E.D. 1993); Missouri Baptist Children’s Home v. State Tax Commission, 867 S.W.2d 510, 512 (Mo. banc 1993).
[15] 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).
[17] 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.
[18] The determination of the Hearing Officer is only for the purpose of addressing the issue of the acreage to be assessed in this appeal.The Hearing Officer’s determination of the acreage of Complainants’ property is for no other purpose.
[20] There is a dispute as to whether Ms. McLallen or the Surveyor was the individual who presented the Survey to the Mapper in the Assessor’s Office – Sue Ann Stokes.It is irrelevant as to who brought the survey to the Assessor.
[21] 10 CSR 30-2.020 (8) (c) – A resurvey is a survey executed to remark, reestablish, restore or delineate the boundary line or corners of a parcel previously created by a deed, survey or subdivision.
[22] Warranty Deed, dated 4/1/1988, Stephen A. Geigle and Judy Geigle, Husband and Wife (Grantors) and Deanna Kay Pittma (Grantee).
[23] Warranty Deed, dated 4/22/02, Deanna Kay Pittman, Barbara Green Burilson and Maurice L. Burlison, (Grantors) and Monty McLallen and Debbie Hehner (Grantees).
[24] This NOTE is located in the upper portion of the survey just below a survey line for the “existing water level Elk River.”There is a straight line going from the NOTE to the Elk River Line.
[25] This NOTE is located in the lower portion of the survey to the right of a line described on the survey as “Approximate Center of Old Elk River Channel – Circa 1966.”