Mostafa & Joyce Ezzelgot v. Zimmerman (SLCO)

Complainants,           )

v.                                                                     )              Appeal No.12-10258

JAKE ZIMMERMAN,ASSESSOR,                       )

ST. LOUIS COUNTY, MISSOURI,                       )

Respondent.              ) 

DECISION AND ORDER 

HOLDING 

Decision of the St. Louis County Board of Equalization reducing the assessment made by the Assessor is SET ASIDE.Complainants failed to present substantial and persuasive evidence to rebut the presumption of correct assessment by the Board of Equalization.Respondent presented substantial and persuasive evidence to rebut the presumption of correct assessment and establish the true value in money for the property under appeal.

True value in money for the subject property for tax year 2012 is set at $1,420,000, residential assessed value of $269,800.

Complainants appeared by Counsel Daniel J. McNamee, King, Krehbiel & Hellmich, LLC, St. Louis, Missouri.

Respondent appeared by Associate County Counsel Paula Lemerman.

Case decided by Senior Hearing Officer W. B. Tichenor.

ISSUE

Complainants appeal, on the ground of overvaluation, the decision of the St. Louis 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, 2011.[1]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 St. Louis County Board of Equalization.[2]

2.  Procedural History.

a.October 1, 2012: Complaint for Review of Assessment filed in name of Mostafa Ezzelgot, pro se. 

b.October 16, 2012:Acknowledgement Letter sent to Complainant and Assessor notified of appeal. 

c.December 31, 2012: Order Setting Prehearing Conference issued, prehearing conference set for 11:00 a.m., February 7, 2013. 

d.March 4, 2013:Order Setting Filing and Exchange of Evidence and Evidentiary Hearing issued.Exhibits and Statement of Basis of Value to be filed with the Commission and exchanged with opposing party on or before May 30, 2013.Party failing to comply with the Order precluded from offering evidence or Statement of Basis of Value at the evidentiary hearing. Evidentiary Hearing set for 2:15 p.m., June 13, 2013. 

e.May 14, 2013:Order Rescheduling Evidentiary Hearing issued, hearing moved to 11:00 a.m., July 2, 2013.Filing and exchange of evidence remained at May 30, 2013. 

f.May 29, 2013:Complainants sent via fax a Statement of Basis of Value to Counsel for Respondent.The document was not sent to the Commission. 

g.May 30, 2013:Respondent mailed Exhibit 1 – Appraisal Report – Sharon Kuelker and Exhibit 2 – Land Sales.[3]No exhibits or Statement of Basis of Value was filed with the Commission by Complainants. 

h.June 17, 2013: Order Dismissing Appeal issued, Complainants given twenty days from date of Order (July 8, 2013) to file Motion to Set Aside and Reinstate appeal.Corrected Order Dismissing Appeal issued on same date.  Evidentiary Hearing cancelled. 

i.July 8, 2013:Attorney Daniel J. McNamee filed Entry of Appearance on behalf of Complainants, with Motion to Set Aside Order of Dismissal and Reinstate Appeal.Copy of an appraisal dated 5/1/12 was tendered with said Motion. 

j.July 9, 2013:Bench Order was issued giving Respondent until and including August 1, 2013 to make Response to Motion to Set Aside and Reinstate. 

k.August 1, 2013:Respondent filed Objections to Complainants’ Motion to Set Aside Order of Dismissal and Reinstate and to the Proposed Appraisal Exhibit. 

3.  Motion to Set Aside and Reinstate.  Respondent did not object to Complainants’ Motion.Counsel for Respondent correctly points out that said Motion failed to set forth any cause, let alone “good cause” for Complainants’ failure to comply with the March 4^th Order on filing and exchanging evidence.Motion is granted and appeal is reinstated for the purpose of issuance of this Decision and Order.

4.  Identification of Subject Property.  The subject property is located at 1 Danfield, Ladue, Missouri.It is identified by locator number 20L240117.[4]

5.  Description of Subject Property.  The property consists of a 33,454 square foot residential lot improved by a 5,522 square foot house with various amenities.The property is described in detail in Exhibit 1.[5]

6.  Assessment.  The Assessor appraised the property at $1,642,700, an assessed residential value of $312,120.The Board of Equalization appraised the property at $1,443,000, assessed value of $274,170.[6]

7.  Complainants Fail To Submit Evidence.  Complainants did not comply with the Order, dated 3/4/13, which provided:

“On or before May 30, 2013, Complainant shall file with the Commission the original of all exhibits to be used in his/her/their case in chief, including a brief Statement of Basis of Value setting forth the Complainant’s opinion of value of the property under appeal as of January 1, 2011, and the basis for that opinion, and serve a copy of the Exhibits and Statement of Basis of Value upon Respondent’s attorney.” 

8.  Tendered Appraisal Report.  Complainants submitted with their Motion to Set Aside and Reinstate an appraisal report, dated 5/1/12 (Bader Appraisal).Respondent objected to the admission of the appraisal.Objection is sustained.The Bader Appraisal is excluded from evidence.[7]See, Exclusion of Appraisal Report, infra.

9 .  Request for New Deadline for Filing Exhibits.  Complainant’s Motion to Set Aside and Reinstate requested the establishment of a new deadline for the filing and exchange of exhibits.Request is denied.See, Denial of Request for New Exchange Deadline, infra.

10.  No Evidence of New Construction & Improvement.  There was no evidence of new construction and improvement from January 1, 2011, to January 1, 2012, therefore the assessed value for 2011 remains the assessed value for 2012.[8] 

11.  Presumption of Correct Assessment Not Rebutted.  Complainants having failed to comply with the Commission Order did not provide any evidence to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2011.See, Presumption In Appeal and Complainants Fail To Prove Value, infra.

12.  Respondent’s Evidence.  Respondent offered into evidence Exhibit 1 – Appraisal Report dated 1/1/11 – Sharon Kuelker, Residential Appraiser Senior, St. Louis County Assessor’s Office.The Exhibit is received into evidence.Exhibit 1 concluded a fair market value for Complainants’ property of $1,420,000.Respondent also tendered Exhibit 2 – Land Sale Data.Exhibit 2 is received into evidence.

13.  Presumption of Correct Assessment Rebutted – Value Established.  The evidence presented by Respondent was substantial and persuasive to both rebut the presumption of correct assessment by the Board and to establish the fair market value of the subject property to be $1,420,000, assessed residential value of $269,800. See, Respondent Proves Value, infra.

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]

Exclusion of Appraisal Report

As part of the Motion to Set Aside Dismissal and Reinstate the appeal, Complainants submitted a copy of an appraisal which had been performed on May 1, 2012, and concluded a value of $1,300,000.Therefore, Complainants could have properly and timely submitted this as an exhibit, on or before May 30, 2013, if they desired to rely upon it.In point of fact, they did not agree with it as the methodology for valuing their property as evidenced by Mr. Ezzelgot’s letter of 5/28/13, addressed to the Hearing Officer, but only delivered to Respondent’s Counsel.That letter – Statement of Basis of Value – makes no reference whatsoever to the appraisal which Complainants had done a year early to value their home.

The appraisal does not find value as of 1/1/11, but rather concludes a value as of 5/1/12.No reason whatsoever, let alone “good cause” was provided as to why Complainants waited until after their appeal had been dismissed to tender the appraisal.Complainants elected to not comply with the Order of the Commission on presenting evidence to establish their prima facie case in chief, they are not to now be rewarded by the admission of a document which clearly could have been timely filed with the Commission and exchanged with Respondent.

For all the foregoing reasons, Counsel for Respondent’s objection is sustained.The tendered appraisal is excluded from the evidentiary record and cannot be considered in arriving at the fair market value for Complainant’s property.

Denial of Request for New Exchange Deadline or Leave to File Out of Time

Complainants seek to have a new exchange deadline established so that they can now file a document which does not comprise in any form or fashion a basis for the owners’ opinion of value, or in the alternative to be granted leave to file the Bader Appraisal out of time.[12]No real justification is provided for this extra-ordinary petition, other than that “Due to inadvertence and excusable neglect, Complainants failed to file the Statement of Basis of Value with the Commission.”However, the basis for the alleged inadvertence and excusable neglect was not provided.The Hearing Officer finds no basis to affirm that there was any “excusable neglect” in how the taxpayers addressed this appeal.

Complainants now seek to get a second bite out of the evidentiary apple by in effect abandoning their Statement of Basis of Value and substituting in lieu thereof the Bader Appraisal.It is clear beyond any question that Complainants did not agree with the Bader Appraisal when the Statement of Basis of Value was prepared and sent to Respondent’s Counsel.Complainants were in possession of the Bader Appraisal for over a year before submitting their Statement of Basis of Value.However, they submitted their Statement of Basis of Value making no reference whatsoever to the Bader Appraisal, not relying on it, and presenting an opinion of value less than the value concluded by the Bader Appraiser.In other words, the Bader Appraisal was completely irrelevant to the Complainants with regard to their opinion of value for their property.

This is not a matter of inadvertence or excusable neglect.It is simply a matter of Complainants’ attempt to establish value based upon their own personal theory, having been rejected, wanting to now present evidence which could have and should have been originally filed and exchange on or before May 30, 2013.The Commission Order was explicit on the failure to file and exchange exhibits.[13]  There is no basis to now either set a new exchange date to permit Complainants to do what they could have done in a timely fashion.Nor is there any excusable neglect that would justify granting leave to file the Bader Appraisal out of time.

Request for a new exchange date is denied.  Request for leave to file the Bader Appraisal out of time is denied.

Presumption In Appeal

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[14]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 is not evidence of value.

The presumption of correct assessment is rebutted when the taxpayer, or Respondent when advocating a value different than that set 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.[15]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[16]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.[17]

Complainants failure to comply with the Order on filing and exchanging exhibits and Statement of Basis of Value results in no evidence upon which the Hearing Officer can find that the presumption of correct assessment in the Board’s valuation was rebutted.Taking into account the Statement of Basis of Value, for the benefit of Complainants, fails to provide substantial and persuasive evidence to rebut the presumption of correct assessment by the Board and to prove value as of 1/1/11.See, Complainants Fail To Prove Value, infra.

Respondent offered evidence advocating a reduction in the value determined by the Board.Respondent’s evidence met the substantial and persuasive standard to rebut the presumption of correct assessment and to establish the value proposed.See, Respondent Proves Value, infra.

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.[18]True value in money is defined in terms of value in exchange and not value in use.[19]It is the fair market value of the subject property on the valuation date.[20]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.[21] 

Respondent’s appraiser concluded value under this standard.[22]Complainants’ Statement of Basis of Value did not conclude value under this standard.

Weight to be Given Evidence

The Hearing Officer is not bound by any single formula, rule or method in determining true value in money, but 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.[23]

The Hearing Officer as the trier of fact may consider the testimony of an expert witness or the owner and give it as much weight and credit as he may deem it entitled to when viewed in connection with all other circumstances.The Hearing Officer is not bound by the opinions of experts or owners who testify on the issue of reasonable value, but may believe all or none of the expert’s or owner’s testimony and accept it in part or reject it in part.[24]

In this appeal, Respondent’s expert concluded value relying on the well recognized and accepted methodology of the sales comparison approach to value for the subject residential property.In addition, since the subject home was less than a year old as of the valuation date, the cost approach was also developed by Respondent’s appraiser.There is no rational basis upon which the Hearing Officer should not give probative weight to the Kuelker appraisal in concluding the true value in money for the Complainants’ property.In like manner, there is no logical basis under any established appraisal methodology for the Hearing Officer to give any weight to the owners’ opinion of value.

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.[25]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.[26]Respondent presented evidence to establish value relying on the market approach to value and the cost approach.Complainants failed to provide any evidence to establish the value of the property under any recognized appraisal methodology.

Complainants Fail To Prove Value

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.[27]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.”[28]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.Complainants have failed to meet their burden of proof and establish by substantial and persuasive evidence the fair market value of the property under appeal as of 1/1/11.

The owner of property is generally held competent to testify to its reasonable market value.[29]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[30]In this instance, the owners’ opinion of value is not based upon any recognized appraisal methodology.It is not supported by any documentation as to market value as of 1/1/11.

On June 17^th, Counsel for Respondent, upon receiving the Order Dismissing Appeal, provided via email correspondence a copy of the May 28^th letter of Mr. Ezzelgot which had been delivered to her.She assumed that it had also been filed with the Commission.Although, this document was never filed by Complainants with the Commission, as ordered, the Hearing Officer has reviewed Complainants’ Statement of Basis of Value.It is found to be fatally lacking as substantial and persuasive evidence of the fair market value of the subject property.

Mr. Ezzelgot concluded an opinion of value based on the sale of a similar, but smaller home seven years older than the subject, and lacking some amenities when compared with the subject.[31]He calculated the per square foot sale price for this comparable based on its March, 2011 sale.That value was then applied to the square footage of the subject, to arrive at an opinion of value of $1,129,000.This is not an acceptable methodology for the appraisal of the subject.When a homeowner elects to devise his own method for arriving at value, he is under the burden to establish that such method is in fact recognized as appropriate for valuation of the property under appeal.That was not done in this instance.

The reliance on a single sale, when it is not a sale between a willing buyer and seller of the subject property, cannot establish the fair market value of the property under appeal.The calculation of a per square foot sale price, without making relevant and appropriate adjustments for differences such as age, bathroom count, living area, basement finish, additional patio and exterior wall, as was done by Respondent’s appraiser,[32] renders any conclusion of value as meaningless.

The owners’ opinion of value is not based upon proper elements or a proper foundation.It cannot be accorded any probative value.Therefore, Complainants failed to rebut the presumption of correct assessment by the Board and establish the value proposed.

Respondent Proves Value

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.[33]The Kuelker Appraisal satisfies the burden of proof.The Hearing Officer has conducted his review and analysis of the appraisal.It conforms to generally accepted appraisal standards for this appraisal problem.

The conclusion of value is based upon the sales evidence for four properties which qualify as appropriate comparables to the subject.All of the sales are in similar and comparable locations to the subject.Each sale sold at a time that is relevant to the valuation date of 1/1/11.The sale properties are of similar age to the subject.Adjustments for differences in amenities between the subject and the comparables fall within appropriate ranges to account for those differences.The net and gross adjustments as a percentage of the sale prices are within accepted appraisal standards and guidelines.The concluded value of $1,420,000 equals to a per square foot value for the subject of $257.15.This is within the unadjusted range for the four comparables.

The sales comparison approach yielded a conclusion of value of $1,420,000.The cost approach provided an indicated value of $1,436,900.Ms. Kuelker’s final opinion of value was $1,420,000.

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 year 2012 is set at $269,800.

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. [34]

Disputed Taxes

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 September 4, 2013.

STATE TAX COMMISSION OFMISSOURI

 W. B. Tichenor

Senior Hearing Officer