State Tax Commission of Missouri
|NOAH PROPERTY, LLC||)|
|Complainant,||)||Appeal No. 15-14430|
|JAKE ZIMMERMAN, ASSESSOR||)|
|ST. LOUIS COUNTY, MISSOURI,||)|
DECISION AND ORDER
Decision of the St. Louis County Board of Equalization (BOE) of September 18, 2015, is SET ASIDE. Noah Property LLC (Complainant), presented substantial and persuasive evidence to establish the true value in money (TVM) for the subject property on January 1, 2015, was $2,966,300. The classification of the subject property is commercial. The subject property’s assessed value for tax years 2015-2016 is set at $949,216. The Complainant failed to present substantial and persuasive evidence that there was an intentional plan by the assessing officials to assess the property under appeal at a ratio greater than 32% of true value in money or at a ratio grossly excessive to the average 2015 commercial assessment ratio for St. Louis County.
Complainants appeared by counsels Thomas Campbell (discrimination) and Jason Turk (valuation).
Jake Zimmerman, Assessor of St. Louis County, Missouri (Respondent) appeared by counsel, Jeremy Shook.
Case heard by Senior Hearing Officer John Treu and Chief Counsel Maureen Monaghan and decided by Monaghan (Hearing Officer).
The Commission takes this appeal to determine: (1) TVM for the subject property on January 1, 2015; and (2) whether there was an intentional plan by the assessing officials to assess the property under appeal at a ratio greater than 32% of true value in money, or at a ratio grossly excessive to the average 2015 commercial assessment ratio for St. Louis County.
FINDINGS OF FACT
- 1. Jurisdiction. Jurisdiction over this appeal is proper. Complainant timely appealed to the STC.
- Evidentiary Hearing. To expedite the appeals, the STC bifurcated the issues of TVM and average level of assessment for commercial properties in St. Louis County (commercial ratio). The parties submitted the issue of TVM of the subject property on the record. The issue of commercial ratio was presented at an evidentiary hearing on March 13-14, 2017, at 7733 Forsyth, Clayton, Missouri.
- Identification of Subject Property. The subject property is identified by parcel/locator number 10O120163. It is further identified as 3400 S Rider Trail., St. Louis County, Missouri.
- Description of Subject Property. The property is a 5.97 acre lot improved by an eight story, 155 room full-service hotel operated as a Holiday Inn Airport-West. The improvement is 111,266 square feet. It includes a restaurant, an indoor pool, an exercise room and on-site parking.
- Assessment. Respondent determined a TVM for the subject property of $8,538,200 as of January 1, 2015. (Complaint for Review of Assessment) The Respondent classified the property as commercial. The property’s assessed value, using the statutory ratio of 32%, was $2,732,230.
- Board of Equalization. The BOE notified the property owner that it “reviewed all evidence submitted regarding [the property] and … determined the valuation of [the subject] property for 2015” was $8,538,200. The property was classified as commercial. The assessed value was set at $2,732,230, consistent with the statutory commercial assessed ratio of 32%.
- True Value. The subject property’s true value as of January 1, 2015 is $2,966,300.
- Discrimination Complainant failed to present substantial and persuasive evidence that there was an intentional plan by the assessing officials to assess property at a ratio greater than 32% of true value in money or at a ratio grossly excessive to the average 2015 commercial assessment ratio for St. Louis County.
- Assessed Value. The assessed value for the subject property is $949,216.
To expedite the appeals, the STC bifurcated the issues of TVM and commercial ratio. The issue of TVM of the subject property was submitted on exhibits filed by the Complainant without objection by Respondent. The issue of commercial ratio was presented as to all commercial ratio appeals at an evidentiary hearing on March 13-14, 2017, at 7733 Forsyth, Clayton, Missouri.
|B||Written Direct Testimony of Gary Andreas|
Complainant presented the testimony of Gary Andreas (Andreas) and an appraisal report. Andreas is a Certified General Appraiser. He has been appraising property since 1980 and specializes in hotel and hospitality financial consulting and appraising hotels.
The appraiser valued the subject property using the Rushmore method. The appraiser calculated a net income of $1,126,300. The appraiser estimated the franchise fee expense at $276,597, the management expense at $164,236, and the reserve for replacement at $164,236. (Exhibit A, pp 42-44) The book value of the furniture, fixtures and equipment was determined by the Respondent to be $951,900. Applying a capitalization rate of 12.97% results in a return of $123,461. The TVM of the property utilizing the Rushmore method is determined to be $2,966,300.
Level of Assessment – Ratio Studies
Each party presented an expert in the field of appraisal, mass appraisal, and assessment ratio studies (Exhibits A and 1) as well as the experts’ study on the commercial assessments in St. Louis County for 2015 (ratio study) (Exhibits C and 2). Ratio studies provide information regarding the level and equity of assessments. Studies use a statistically significant number of properties and compare an assessor’s value for those properties to a market value proxy for those properties. The market value proxy is either the sale prices of properties in the jurisdiction within a relevant time period or an independent appraisal of randomly selected properties. In this appeal, the ratio studies utilized recent sales. In the studies, the experts use the following terms:
- Appraisal Level: Overall ratio of assessor’s values to market values. Level measurements provide information about the degree to which goals or legal requirements are met. Estimates of appraisal level are based on measures of central tendency.
- Assessed Value: Legally authorized fraction of market value.
- Assessment: Determination of true value, classification and location within taxing districts for ad valorem taxation.
- Coefficient of Dispersion (COD): It measures the average percentage of deviation of the ratios from the median ratio. A lower COD implies a lesser amount of variability or more equity in assessments.
- Computer-Assisted Mass Appraisal (CAMA): A process that uses a system of integrated components and software tools necessary to support the appraisal of a universe of properties through the use of mathematical models that represent the relationship between property values and supply/demand factors.
- Equalization: The process by which an appropriate governmental body attempts to ensure that property under its jurisdiction is assessed at the same assessment ratio or at the ratio or ratios required by law.
- Mean: The arithmetic average. It is created by adding together all individual samples and dividing by the number of samples.
- Median: The middle observation when the values of the data are arrayed. It divides the data into two parts.
- Price-Related Bias (PRB): It is used to measure assessment equity (regressivity/progressivity). It measures the relationship between assessment-sales ratios and value in percentage terms. For example, a PRB of .05 indicates that, on average, assessment ratios increase by 5% whenever values double.
- Price Related Differential (PRD): Itis calculated to measure assessment regressivity or progressivity. It is found by dividing the mean by the weighted mean. The comparison tests for equity between low value properties and high value properties. A PRD above 1.00 suggests that the assessment values placed on high-value parcels are relatively lower than the assessment values placed on low-value parcels.
- Progressivity: Taxation is imposed in such a manner that the tax rate decreases as the amount subject to taxation decreases.
- Ratio Study: Sales or appraisal based study designed to evaluate appraisal performance to determine if statutory requirements are met. Studies can be used to evaluate the degree of discrimination and to adjust assessed values on appealed properties to the common level.
- Regressivity: Taxation is imposed in such a manner that tax rate decreases as the amount subject to taxation increases.
- True Value in Money: Also referred to as appraised value, market value, or fair market value.
- Weighted mean: It is the sum of the assessed values divided by the sum of the individual indicators of market value.
2015 St. Louis County Commercial Ratio
The Complainant filed the following Exhibits, which were admitted into evidence:
|A||Written Direct Testimony of Robert Gloudemans|
|B||Written Direct Testimony of John Hottle|
|C||Commercial Ratio Study of Robert Gloudemans|
|D||Supplement to Appendix 2 of Exhibit C|
|E||Testimony of Robert Gloudemans|
|F||Testimony of John Hottle|
|G||Impact Notice 10L420653|
|H||Impact Notice 13K520081|
|I||Impact Notice 14N120030, Letters from Assessor|
|J||Impact Notice 15N130407, Letters from Assessor|
|K||Impact Notice 15K240583|
|L||BOE Decision 16M530069, Impact Notice|
|M||Impact Notice 16P610696, Letters from Assessor|
|N||Impact Notice 19Q140113|
|O||BOE Decision 21K331251, Impact Notice|
|P||BOE Decision 22S121644, Impact Notice|
|Q||Impact Notice 23S540286, Letters from Assessor|
|R||Impact Notice 28L640434|
|S||Impact Notice 29H210253, Letters from Assessor|
Robert Gloudemans (Gloudemans) is a partner in Almy, Gloudemans, Jacobs & Denne. He is a tax consultant specializing in property tax assessment administration and has been engaged in such work for over 40 years. (Exhibit A, pp 1-2) He was hired by Joseph C. Sansone Company to analyze the assessment of commercial property in St. Louis County for tax year 2015, more specifically, to determine the average level of assessment for commercial property as of January 1, 2015. (Exhibit A p.7) Gloudemans prepared a report of his findings. (Exhibit C)
To analyze the assessment of commercial property in St. Louis County for tax year 2015, Gloudemans used sales of commercial property in St. Louis County that occurred from July 2014 through June 2015. (Exhibit C p.1) The study utilized data from the St. Louis County Assessor’s Office regarding sales of commercial properties. (Exhibit C p.2) After narrowing the sales, the number of sales requiring validation was 585 sales involving 768 parcels. (Exhibit C p.2) The commercial sales were provided to Hottle for validation per IAAO standards. (Exhibit C p.3)
Hottle was provided with sales data obtained from the St. Louis County Assessor’s Office. Hottle worked with Gloudemans to ensure the sales validation process complied with IAAO standard for ratio studies. (Exhibit C p.3) Hottle Appraisal Company validated sales of commercial properties occurring in St. Louis County between July 1, 2014, and June 30, 2015. (Exhibit B) The process included verification from a party involved in the transaction, third party information as to the transaction, and evaluation of whether the sale was representative of typical market transactions based on property type and location. (Exhibit B p.5) Of the 585 sales requiring validation, 258 sales were found to be valid, arm’s-length transactions. (Exhibit C p.5)
Gloudemans used the validated sales for his analysis. (Exhibit C p.6) Two of the sales were removed from the study as “outliers,” one with a very low ratio and one with a very high ratio. (Exhibit C p. 9)
Gloudemans computed three measures of central tendency for his ratio study – the median, the mean and the weighted mean. (Exhibit C p. 9) The median is the middle number in a set of numbers. The mean is the average or the sum of the numbers divided by the total count of numbers. The weighted mean is the weighted average of the ratios when each ratio is weighted by its sale price, i.e., the sum of the assessed values divided by the sum of the TVM proxy (sale price).
Gloudemans reported the following findings for commercial assessments in St. Louis County in 2015:
Gloudemans found overall ratios of a mean of 1.003%, median of .959 and weighted mean of .812. In other words the measures indicate an assessment ratio of 32.09%, 30.69% and 25.98% depending on the measure of central tendency.
Gloudemans relied on the weighted mean as the most appropriate measure of the average level of assessment. Gloudemans recommended that the STC adopt a weighted mean of 26% as the average level of assessment of commercial property in St. Louis County in 2015.
The Respondent filed the following Exhibits which were admitted into evidence:
|1||Testimony of Patrick O’Connor|
|2||Study of Patrick O’Connor|
|3||IAAO Standard on Ratio Studies|
|4||Spreadsheet – 145 sales used|
|5||2015 Ratio Study|
|6||Testimony of Steve Robertson|
|7||Spread sheet of sales from 1/1/15 to 12/31/15|
|8||Testimony of Sandy Youtzy|
|9||Testimony of John Gillick|
|10||CV of John Gillick|
|11||SLCo sale file of 18K310513|
|12A||SLCo sale file for 12M330315|
|12B||SLCo sale file for 12M330315|
|13||SLCo sale file for 13J330980.|
|14||SLCo sale file for 18K310997|
|15||SLCo sale file for 23T531199|
|16||SLCo sale file for 28P440441|
|17||SLCo sale file for 26G112010|
|18||SLCo sale file for 26K640466|
|19||SLCo sale file for 17N540851|
|20||SLCo sale file for 27K111697|
|21||SLCo sale file for 16H421088|
|22||SLCo sale file for 09N120191|
|23A||SLCo sale file for 17L441202|
|23B||SLCo sale file for 17L441202|
|24A||SLCo sale file for 24M221111|
|24B||SLCo sale file for 25M543135|
|25||SLCo sale file for 17N430563|
|26||Testimony of Patrick O’Connor|
|27||Sur-rebuttal Testimony of Steve Robertson|
|28||Sur-rebuttal Testimony of Sandy Youtzy|
|29||St. Louis County Board of Equalization Memorandum of Waiver, dated 8/28/15, as to Keefe|
Witness Patrick M. O’Conner (O’Connor) testified on behalf of the county. O’Conner is a Certified General Real Estate Appraiser. (Exhibit 1 p.1) He has been involved in mass appraisal since 1973. (Exhibit 1 p. 2)
He prepared a report involving:
- Sales ratio study as of January 1, 2015;
- Statistical review of a separate file of sales prices for commercial properties from 2011 through 2015;
- Application of direct market models to a sample of sold and unsold commercial properties as of the valuation date of January 1, 2015;
- Performance of a direct market model values-to sales prices ratio study on a sample of sold properties; and
- Performance of appraisal ratio studies of 2015 appraised-to-direct market model values on a sample of sold and unsold commercial properties. (Exhibit 2 p.1)
O’Connor’s ratio study used 145 commercial sales from the last three quarters of 2014 and the first three quarters of 2015. O’Connor determined the following:
|Assessment Ratio||Not Calculated|
O’Connor inadvertently used post-BOE TVM rather than Assessor’s value (pre-BOE) in his study on 13 of the 145 properties. The BOE adopted the sales price as TVM as to those properties. The result is a 1:1 ratio of sale price to BOE valuation. The use of the properties had no impact on the findings.
O’Connor found little indication of regressivity.
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. 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.
Official and Judicial Notice
Agencies shall take official notice of all matters of which the courts take judicial notice. Section 536.070(6), RSMo.
Courts will take judicial notice of their own records in the same cases. State ex rel. Horton v. Bourke, 129 S.W.2d 866, 869 (1939); Barth v. Kansas City Elevated Railway Company, 44 S.W. 788, 781 (1898). In addition, courts may take judicial notice of records in earlier cases when justice requires or when it is necessary for a full understanding of the instant appeal. Burton v. Moulder, 245 S.W.2d 844, 846 (Mo. 1952); Knorp v. Thompson, 175 S.W.2d 889, 894 (1943); Bushman v. Barlow, 15 S.W.2d 329, 332 (Mo. banc 1929) State ex rel St. Louis Public Service Company v. Public Service Commission, 291 S.W.2d 95, 97 (Mo. banc 1956). Courts may take judicial notice of their own records in prior proceedings involving the same parties and basically the same facts. In re Murphy, 732 S.W.2d 895, 902 (Mo. banc 1987); State v. Gilmore, 681 S.W.2d 934, 940 (Mo. banc 1984); State v. Keeble, 399 S.W.2d 118, 122 (Mo. 1966).
Presumption of Correctness of BOE
There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization. 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). This presumption is a rebuttable rather than a conclusive presumption. 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. Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).
Duty to Investigate
In order to investigate appeals filed with the STC, the STC has the duty to 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. The Commission’s decision regarding the assessment or valuation of the property may be based solely upon its inquiry and any evidence presented by the parties, or based solely upon evidence presented by the parties. Section 138.430.2, RSMo.
Weight to be Given Evidence
The STCs 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 Commission 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).
Trier of Fact
The STC as the trier of fact may consider the testimony of an expert witness and give it as much weight and credit as they may deem it entitled to when viewed in connection with all other circumstances. The Commission is not bound by the opinions of experts who testify on the issue of reasonable value, 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).
Opinion Testimony by Experts
If specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert on that subject, by knowledge, skill, experience, training, or education, may testify thereto. The facts or data upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reliable, but the facts or data need not be admissible in evidence. Section 490.065, RSMo; State Board of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. SC. 2004); Courtroom Handbook on Missouri Evidence, Wm. A. Schroeder, Sections 702-505, pp. 325-350; Wulfing v. Kansas City Southern Industries, Inc., 842 S.W.2d 133 (Mo. App. E.D. 1992).
Complainant presented the testimony of an expert as to the TVM of the subject properties. The expert on valuation was a Certified General Appraiser with extensive experience. No evidence was presented by Respondent to challenge their expertise or opinion of value.
Three expert witnesses were presented at hearing as to the average level of assessment of commercial property in St. Louis County in 2015. All experts had experience in appraisal and mass appraisal for ad valorem tax purposes as well as the review of valuation by mass appraisal.
Complainant’s Burden of Proof
The taxpayer is the moving party seeking affirmative relief, therefore, the taxpayer bears the burden of proving the vital elements of the case, i.e., the assessment was “unlawful, unfair, improper, arbitrary or capricious,” by substantial and persuasive evidence. See, 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). Industrial Development Authority of Kansas City v. State Tax Commission of Missouri, 804 S.W.2d 387, 392 (Mo. App. 1991).
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See, 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, 527 S.W.2d 50, 53 (Mo. App. 1975).
Valuing Hotel or Motel Property
In the real estate appraisal industry, the market value of a hotel is considered to consist of four components (1) value of the land; (2) value of the improvements; (3) value of the business or going concern and franchise affiliation; and (4) value of the furniture, fixtures and equipment (i.e. personal property). John Hancock Mutual Life v. Stanton, 51 STC Proceedings and Decisions, 1996, p. 394. Lesser and Rubin, Understanding the Unique Aspects of Hotel Property Tax Valuation, The Appraisal Journal, January, 1993, p. 17.
Hotels and motels are almost always valued by an income capitalization approach that takes the property’s stabilized net income and capitalizes it into an estimate of market value. The stabilized net income is intended to reflect the anticipated operating results of the hotel over its remaining economic life, given any or all applicable stages of buildup, plateau, and decline in the life cycle.
The return on personal property to be deducted from a hotel’s income and expense statements can be calculated by (1) using the market value of the personal property as shown on the assessment rolls; (2) actual appraisal of the personal property; or (3) using the depreciated book value of the personal property. Return on personalty is determined by adding the capitalization rate for the real property to the tax load or effective tax rate per $100 of the personal property and multiplying same by the assessed value of the personal property. In attempting to segregate personal property from real estate, the primary consideration in valuing the personal property is its actual contributory value, not its hypothetical replacement cost new less depreciation. Lesser and Rubin, Understanding the Unique Aspects of Hotel Property Tax Valuation, The Appraisal Journal, January 1993, P. 33, Crown Center, supra, p. 439, John Hancock, supra, p. 396.
Periodic replacement of furniture, fixtures and equipment is essential to maintain the quality, image, and income potential of a lodging facility. An appraisal should reflect these expenses in the form of an appropriate reserve for replacement. The deduction of a reserve for replacement from the stabilized statement of income and expense can therefore be used to account for the return of personal property. Lesser and Rubin, Understanding the Unique Aspects of Hotel Property Tax Valuation, The Appraisal Journal. January, 1993, p. 21, 22. Crown Center, supra, p. 440.
Management companies generally offer their brand names, corporate identities, and reservation systems solely in conjunction with their management expertise. The process of isolating the value of a hotel’s business is based on the premise that by employing a professional management agent to handle the day-to-day operation of the property, an owner maintains only a passive interest, while income attributed to the business has been taken by the managing agent in the form of a management fee. Therefore, deduction of a management fee from the stabilized net income removes a portion of the business component from the stabilized income stream. Additionally, lodging facilities operated with a franchise affiliation provided by a third party are subject to the payment of franchise fees. Deducting the franchise fees from the stabilized net income removes the remaining business component from the income stream. Lesser and Rubin, Understanding the Unique Aspects of Hotel Property Tax Valuation, The Appraisal Journal, April 1984, p. 280-291; Crown Center, supra at p. 438. John Hancock, supra at p. 397.
The business value component of a hotel is accounted for through the franchise fee and the management fee. If these two items are calculated as expense items, no additional calculation is necessary to remove their impact from net operating income. Going concern value can be treated in one of two ways: The appraisers can leave the management and franchise fees in the expenses calculations, in which case no further calculation is necessary. Or, alternatively, they may remove those fees from the expenses and treat them separately. John Hancock, supra. p. 397. Leaving management and franchise fees in the expense calculations and then making further adjustments for business value results in stating business value twice and understating the value of the real property.
Through the information provided in the appraisal there was substantial and persuasive to establish the TVM of the subject property at $2,966,300.
In addition to disputing the valuation of their property, Complainant alleges discrimination. The issue is whether the assessment is in violation of the Fourteenth Amendment of the Constitution of the United States, as it attempts to deprive and deny the Complainant the equal protection of the laws. “The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the state’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” Sunday Lake Iron Co v Wakefield Tp, 247 U.S. 350, 38 S. Ct 495, 62 L.Ed 1154 (1918)
To obtain a reduction in assessed value based upon discrimination, the complaining taxpayer must (1) prove the true value in money of the subject property as of the taxing date; and (2) show an intentional plan of discrimination by the assessor, which resulted in an assessment at a greater percentage of value than other property within the same class and the same taxing district, or, in the absence of such an intentional plan, show that the level of assessment is “so grossly excessive as to be inconsistent with an honest exercise of judgment.” Zimmerman v. Mid–America Financial Corp., 481 S.W.3d 564, 571 (Mo. App. E.D. 2015), quoting Savage v. State Tax Comm’n of Missouri, 722 S.W.2d 72, 78 (Mo. banc 1986).
There is no evidence that there was an intentional plan of discrimination by the assessing officials, so we must determine if the Complainant 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.
Missouri courts have consistently held that (1) a taxpayer alleging discrimination must show the TVM of his property as a necessary part of his discrimination claim; and (2) the proper method of determining discrimination is to compare the actual level of assessment of the subject property as determined by the assessor to the common level of assessment for the subject property’s subclass. Mid-America Financial Corp., 481 S.W.3d at 574, citing Savage, 722 S.W.2d at 72.
“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 STC refrain from correcting assessments which reflect no more than de minimus errors of judgment on the part of assessors.” Mid-America Financial Corp., 481 S.W.3d at 571 (internal quotation omitted). “This standard recognizes that while practical uniformity is the constitutional goal, absolute uniformity is an unattainable ideal.” Id. (internal quotation omitted).
In deciding whether the assessment of the subject property is “grossly excessive” or nothing more than a “de minimus error of judgment,” the STC must determine the common level of assessment for the class of property at issue within the taxing district. In Savage, 722 S.W.2d at 79, the Missouri Supreme Court reasoned:
The “common level of assessment” has been defined as a single ratio of true value used in assessing each property in a taxing district. [citation omitted] The “average level of assessment” means the “arithmetical mean of the varying percentages of true value applied by . . . the assessor in assessing properties within a taxing district.” [citation omitted]
A taxpayer has the right to have his “assessment reduced to the percentage of that value at which others are taxed[.]” [citation omitted]
The Missouri Supreme Court has held that the proper method of analyzing discrimination compares the common level of assessment for similarly-situated properties to the actual level of assessment imposed on the subject property. Mid-America Financial Corp., 481 S.W.3d at 571; Savage, 722 S.W.2d at 74. A necessary component of this comparison is the TVM of both the subject property and the similarly-situated properties, i.e., properties within the same class as the subject property. See Id.; see also Savage, 722 S.W.2d at 74. Once the TVM of the subject property and the similarly-situated properties has been determined, the STC can calculate at what percentage or ratio of TVM the subject property and the similarly-situated properties, respectively, have been assessed. Mid-America Financial Corp., 481 S.W.3d at 571. This determination requires a comparison not between the common level of assessment and the statutory assessment ratio, but between the common level of assessment and the actual level of assessment for the subject property. Id. at 574. Neither Missouri courts nor the STC has established a “bright-line” test to identify what constitutes a grossly excessive assessment as opposed to a mere de minimus error in judgment. Id. at 575. The assessment in each given case must be analyzed against the assessment under the median ratio to address the grossly excessive factor. Id. The STC has found a 5% disparity between the common level of assessment and the actual level assessment to be de minimus. Town and Country Racquet Club v. Morton, 1989 WL 41005 (Missouri State Tax Commission) (affirmed on appeal in Town & Country Racquet Club v. State Tax Commission of Missouri, 811 S.W.2d 403 (Mo. App. E.D. 1991).
It is established under Missouri law that when a taxpayer’s property is subject to an assessment proportionately higher than other property in the same class, the assessment should be reduced. See, e.g., Koplar v. State Tax Commission, 321 S.W.2d 686 (Mo. 1959). The Constitutions of Missouri and the United States require that the subject property be assessed at a ratio no higher than the common level or average for the same class of subject. Fourteenth Amendment, U.S. Constitution, Article X, Sections 3, 4(a), Missouri Constitution 1945; Breckenridge Hotels v. Leachman, 571 S.W.2d 251, 252 (Mo. banc 1978); May Department Stores Company v. State Tax Commission, 308 S.W.2d 748, 762 (Mo. 1958).
To determine the common level of assessment, the experts looked to measures of central tendency. In this case, the issue of dispute between the parties is the proper measure of central tendency: the median, mean or the weighted mean.
The inquiry in a discrimination appeal is to determine a single ratio representing the assessments of varying properties within the same classification – the average or common level of assessment. Complainant argues that the assessments in St. Louis County in 2015 for commercial properties were regressive – assessment ratio decreases as the value of the property increases. Complainant argues that when regressivity is present, the weighted mean is the only appropriate measure.
The Complainant is one of more than 2,600 claims of discrimination by commercial property owners in St. Louis County for the 2015-2016 assessment cycle. The valuations of the properties vary. The STC cannot look at any particular property value and determine that all properties in excess of that value are subject to discrimination; “there is no dividing line”. (Tr. Vol II. P. 231) The evidence did not establish a point estimate for all properties within the subclass, i.e. there is no common level of assessment. Commercial properties, according to the Complainant’s study, are over assessed, accurately assessed, and under assessed. Isolated and uncoordinated reductions in selected assessments could produce additional disparities, i.e., discrimination.
All three experts calculated a median. The medians calculated by the three experts were within a consistent range. The calculated medians ranged between 30.7% and 31.1%. The parties’ median levels of assessment are within .004 of each other. Such consistent findings as to the median assessment are substantial and persuasive. The median level of assessment in St. Louis County for 2015 was approximately 31%. In previous decisions, the STC found 5% disparity to be de minimus. Town and Country Racquet Club v. Morton, 1989 WL 41005. Such disparity between the statutory level of assessment and the average level of assessment is not so grossly excessive as to be entirely inconsistent with an honest exercise of judgment and, hence, does not prove discrimination.
Complainant’s argument to use weighted mean is not persuasive. It is the only measure of central tendency that indicated a disparity in commercial assessments. Other statistical measures, such as the mean, median, or COD utilized by the experts in their studies, did not indicate discrimination in assessments. One statistical measure found within a study is not substantial and persuasive evidence.
The same issue was raised in Industrial Development Authority of Kansas City v. John Kelley, Jackson County, 1989 WL 96234 (Mo. St. Tax Comm.) The STC, in that decision, stated “[i]t is generally accepted that when adjusting individual assessments to the average level of assessment the median ratio should be used.” The STC has consistently accepted such measure of central tendency. Zimmerman v. Mid-America Financial Corporation, 481 S.W.3d 564, 577 (Mo. Ct App. ED, 2015) and West County BMW v. Muehlheausler, STC 05-12569. The STC’s Assessor Manual sets forth that the median is the measure to determine if a county is accurately assessing property. A finding that the median is the most persuasive measure of central tendency is a reasonable and sound finding in this particular appeal based upon evidence presented.
The assessed valuation for the subject property as determined by the Assessor for St. Louis County for the subject tax day is SET ASIDE. The assessed valuation for the subject property for tax years 2015-2016 is $949,216.
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 September 4, 2018.
STATE TAX COMMISSION OF MISSOURI
Certificate of Service
I hereby certify that a copy of the foregoing has been emailed or mailed postage prepaid on this September 4, 2018, to: Thomas Campbell, Polsinelli, 100 S. Fourth Street, Suite 100, St. Louis, MO 63102, Attorney for Complainant; Jason Turk, Blitz, Bargett & Deutsch, LLC, 120 S. Central Ave, Suite 1500, St. Louis, MO 63105, Attorney for Complainant; Jeremy Shook, 1 Brentwood Blvd, Suite 800, Clayton, MO 63105, Attorney for Respondent; Jake Zimmerman, Assessor, County Government Center, 41 South Central Avenue, Clayton, MO 63105; Mark Devore, Collector, County Government Center, 41 South Central Avenue, Clayton, MO 63105.
Complainants represented by PAR Tax Representative and Counsel Patrick Keefe filed the following exhibits as part of the hearing to determine the common level of assessment (ratio) for commercial properties in St. Louis County in 2015:
|A||Written Direct Testimony of Robert Denne|
|B||CV of Robert Denne|
|C||Assessment Ratio Study|
|D||Written Direct Testimony of Timothy Schoemehl|
|E||Qualifications of Timothy Schoemehl|
|F||CD ROM St Louis County Assessment Roll|
|G||CD ROM St Louis County Assessment Roll 2016|
|H||Excel File – Commercial Sales 2014 – 2015 (on CD)|
|I||Excel File – Revised Sales List(on CD)|
|J||Excel File – Stratum Cods(on CD)|
|K||PDF Locator – Neighborhood Chart(on CD)|
|L||Real Estate Data Extract|
|M||Excel File – ComlOnlySalesWork data file (on CD)|
|N||Excel File – Supplemental List for Tim (on CD)|
|O||Commercial Sales Review Form|
|Q||CD ROM Deed Images from Metropolitan Title Data, Inc|
|R||DVD-ROM Assessor’s Certificates of Value (2014 & 2015)|
|S||DVD-ROM Assessor’s Sales Research Packages (2014)|
|T||DVD-ROM Assessor’s Sales Research Packages (2015)|
|U||Excel File Worksheet Draft 9-7-2016 (on CD)|
|V||Validated Sales from Tim (on CD)|
|W||Validated Sales from Tim with trim notes (on CD)|
|X||IAAO Standard on Ratio Studies 2013 (on CD)|
|Y||IAAO Standard on Verification and Adjustment of Sales (on CD)|
|Z||STC Assessor Manual, Chapter 4, Ratio Studies (2016) (on CD)|
|AA||Rebuttal Report of Robert C. Denne|
|BB||Written Direct Testimony of Robert C. Denne|
|CC||Written Direct Testimony of Timothy Schoemehl|
|DD||Sales Verification Questionnaire – 21 N. Meramec|
|EE||Sales Verification Questionnaire – 32K130454|
|FF||Real Estate Information 12M330315|
|GG||Article dated May 1-7, 2015|
|HH||Commercial Sales Summary|
|II||Real Estate Information 16H421088|
|JJ||Sales Verification Questionnaire|
|NN||Phillips Edison SEC Report|
|OO||Written Direct Testimony of Reobrt C. Denne|
|PP||Study using pre-BOE valuations|
|Study using pre-BOE valuations|
|RR||CD Rom – 2015-2016 Commercial Assessments|
|SS||BOE Decision 19Q130163|
 Two sets of Complainants presented evidence at the hearing as to the ratio of assessment of Commercial properties. The groups were labeled by the parties for ease of reference as “PAR” Complainants and “Sansone” Complainants. Complainant, Noah Property LLC, is in the Sansone group. Exhibits filed on behalf of PAR group are listed at the end of this Decision and Order.
 Representative for tax purposes of the Complainant.
 IAAO stands for the International Association of Assessing Officers. Its members include government assessment officials and others interested in the administration of the property tax. They provide education, resources and standards for ad valorem taxation.
 Witness Robert Denne also testified at the ratio hearing. Denne is the expert witness for Complainants (“PAR” Complainants) represented by Attorney Patrick Keefe. Denne has training, experience and education in the field of appraisal, mass appraisal and mass appraisal review. The witness conducted a ratio study for the 2015 commercial properties in St. Louis County. He used 306 sales in his study comparing the verified sale data to post-BOE valuations. (Transcript p. 95)