State Tax Commission of Missouri
|NORTH TAYLOR DEVELOPMENT,||)|
|v.||)||Appeal Number 13-13168|
|JAKE ZIMMERMAN, ASSESSOR,||)|
|ST LOUIS COUNTY, MISSOURI,||)|
DECISION AND ORDER
Decision of the County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED. Complainant did not present substantial and persuasive evidence to rebut the presumption of correct assessment by the Board of Equalization. True value in money for the subject property for tax year 2013 is set at $825,000, residential assessed value of $156,750.
Complainant appeared by attorney Francis Pennington.
Respondent appeared Steven Robson
Case heard and decided by Hearing Officer Maureen Monaghan.
Complainant appeals, 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, 2013. Section 137.115.1 RSMo
The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.
FINDINGS OF FACT
- Jurisdiction. Jurisdiction over this appeal is proper. Complainant timely appealed to the State Tax Commission from the decision of the St. Louis County Board of Equalization.
- Evidentiary Hearing. The Evidentiary Hearing was held on November 18, 2015 at the St. Louis County Administration Building, Clayton, Missouri.
- Identification of Subject Property. The subject property is identified by map parcel number 23M530919. It is further identified as 750 N. Taylor Avenue, Kirkwood, Missouri.
- Description of Subject Property. In 2013, the subject property, parcel 23M530919, consisted of a tract of land improved by a single family dwelling. The improvements were demolished on August 30, 2013. In February 2014, a plat was filed and the property was divided into 3 lots. The three lots were assigned new parcel numbers. With the demolition of the improvements and splitting of the parcel, the property was reassessed in 2014.
- Sale of Subject. The subject property was purchased by Complainant in February 2012 for $825,000.
- Assessment. The Assessor appraised the property at $878,000, an assessed residential value of $166,820. The Board of Equalization reduced the valuation to $825,000, an assessed residential value of $156,750.
- Complainant’s Evidence.
B. Property Tax Bills 2014
C. Change of Assessment Notice 2014
D. Property Information of Assessor’s Office
F. Written Direct Testimony of John Pitcher
The Respondent objected to the written direct testimony of John Pitcher as being filed out of time. The testimony was filed on the eve of the hearing. A scheduling order was issued on March 11, 2014. The parties were ordered to file all exhibits and written direct testimony on or before December 2, 2014. The Complainant filed Exhibits A to E on December 6, 2014. Respondent filed his exhibits and written direct testimony on November 4, 2015. The Hearing Officer inquired whether all Respondent’s exhibits should be excluded due to the late filing as well. The Respondent withdrew the objection and the hearing proceeded with all exhibits being admitted into evidence.
John Pitcher testified. He is the managing principal and sole member/owner of North Taylor Development, LLC. The company develops residential real estate. Mr. Pitcher has been involved in the real estate industry for 42 years. His work has included real estate financing, real estate development, marketing, construction, and other aspects of the industry. Mr. Pitcher, although not a certified appraiser, has developed estimates of market value for real estate and has taken MAI course work.
Mr. Pitcher testified that he became interested in the subject property in 2010. His plan was to purchase the property, demolish the home and garage, and construct site improvements and infrastructure to support four homes priced between $800,000 to $1 million. Mr. Pitcher stated that he never considered doing anything other than removing the improvements on the property given that their condition was poor. The home had been on the market since 2008. The listing price had been reduced on three occasions. According to Mr. Pitcher, the $825,000 price he paid for the subject parcel was 28% less than the initial asking price. Mr. Pitcher testified that his sole interest was the land value. He considered the demolition costs, development costs, as well as the permitting when purchasing the property. He estimated the final cost per lot would be $300,000 per lot if four lots were developed. He believed that the project was feasible.
The property was under contract in 2010. The purchase was contingent upon the approval for the development. The planning development was approved in 2012. The approved plan only permitted the split of the property into three lots and therefore the construction of only three homes. Mr. Pitcher testified that he could have “walked away” from the contract at that time. He testified that he attempted to re-negotiate the purchase price, however, the seller refused his offer. Mr. Pitcher stated that he decided to accept the terms of $825,000 for the subject property – land and improvements.
Mr. Pitcher presented a chart, Exhibit E. The components of the chart were:
- Address of the property;
- Year Constructed – “original” and “replacement”;
- New home sale data;
- Purchase price;
- Louis County True Value in 2013 – Land and Improvements; and
- Land value as a percentage of land cost.
Mr. Pitcher testified his opinion of value of the subject property as of January 1, 2013 is $313,036.
8. Evidence of New Construction & Improvement. There was evidence that the residence was removed and the parcel was split into three separate parcels in 2014. The valuation was issued by the Assessor and no appeal was taken.
9. Respondent’s Evidence.
a. Written Direct Testimony of Sharon Kuelker
c. Certificate of Value
d. County Ordinance
Ms. Kuelker is an appraiser with the St. Louis County Assessor’s Office. Ms. Kuelker did not opine a value for the subject parcel as of January 1, 2013. Ms. Kuelker testified that Exhibits 2 and 3 were filed with the County and document the purchase of the property in 2012. Ms. Kuelker testified that the Certificate of Value provides information to the Assessor’s Office to determine whether a real estate transaction was a market, arm’s length transaction which may be used for appraising real estate in St. Louis County. Ms. Kuelker testified that an arm’s length sale is “unquestionably the best indication of [a property’s] value because it represents the actual consideration paid.”
- Presumption of Correct Assessment Not Rebutted. Complainant’s evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money of $313,036 as of January 1, 2013.
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.
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. Article X, Sections 4(a) and 4(b), Mo. Const. of 1945. The constitutional mandate is to find the true value in money for the property under appeal.
Presumption In Appeal
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). 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).
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See, Cupples-Hesse, supra. 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).
Complainants’ Burden of Proof
In order to prevail, Complainant 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, 2013. Hermel, supra. 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.” 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). 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.
A taxpayer does not meet his burden if evidence on any essential element of his case leaves the Commission “in the nebulous twilight of speculation, conjecture and surmise.” See, Rossman v. G.G.C. Corp. of Missouri, 596 S.W.2d 469, 471 (Mo. App. 1980).
Owner’s Opinion of Value
The owner of property is generally held competent to testify to its reasonable market value. Rigali v. Kensington Place Homeowners’ Ass’n, 103 S.W.3d 839, 846 (Mo. App. E.D. 2003); Boten v. Brecklein, 452 S.W.2d 86, 95 (Sup. 1970). The owner’s opinion is without probative value; however, where it is shown to have been based upon improper elements or an improper foundation. Cohen v. Bushmeyer, 251 S.W.3d 345, (Mo. App. E.D., March 25, 2008); Carmel Energy, Inc. v. Fritter, 827 S.W.2d 780, 783 (Mo. App. W.D. 1992); State, ex rel. Missouri Hwy & Transp. Com’n v. Pracht, 801 S.W.2d 90, 94 (Mo. App. E.D. 1990); Shelby County R-4 School District v. Hermann, 392 S.W.2d 609, 613 (Sup. 1965).
The property was purchased in 2012 for $825,000. Mr. Pitcher is well informed, well advised, knowledgeable participant in the real estate market. He negotiated a purchase price 28% lower than the original list price. He determined the cost of removal of the improvements on the subject and cost of preparation of the site for future development. The purchase contract was contingent. Mr. Pitcher testified that he attempted renegotiating the terms of the contract and that he could have walked away from the purchase. However he proceeded with the purchase of the property for $825,000.
His opinion of value of $313,036 was not established using any of the recognized approaches of value.
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. 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). True value in money is defined in terms of value in exchange and not value in use. 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).
It is the fair market value of the subject property on the valuation date. Hermel, supra.
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:
- Buyer and seller are typically motivated.
- Both parties are well informed and well advised, and both acting in what they consider their own best interests.
- A reasonable time is allowed for exposure in the open market.
- Payment is made in cash or its equivalent.
- Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.
- 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. 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.
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. See, Nance v. STC, 18 S.W.3d 611, at 615 (Mo. App. W.D. 2000); Hermel, supra; Xerox Corp. v. STC, 529 S.W.2d 413 (Mo. banc 1975). 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. St. Joe Minerals Corp. v. STC, 854 S.W.2d 526, 529 (App. E.D. 1993); Aspenhof Corp. v. STC, 789 S.W.2d 867, 869 (App. E.D. 1990); Quincy Soybean Company, Inc., v. Lowe, 773 S.W.2d 503, 504 (App. E.D. 1989), citing Del-Mar Redevelopment Corp v. Associated Garages, Inc., 726 S.W.2d 866, 869 (App. E.D. 1987); and State ex rel. State Highway Comm’n v. Southern Dev. Co., 509 S.W.2d 18, 27 (Mo. Div. 2 1974).
Neither the Complainant nor the Respondent, although both have appraisal training, presented an opinion of value based upon any the recognized methods of valuation.
Sale of Subject
Evidence of the actual sales price of property is admissible to establish value at the time of an assessment, provided that such evidence involves a voluntary purchase not too remote in time. The actual sale price is a method that may be considered for estimating true value. The actual sales price, between a willing seller who is not obligated to sell and a willing buyer who is not compelled to buy, establishes an outer limit on the value of real property. St. Joe Minerals Corp. v. STC, 854 S.W.2d 526 (App. E.D. 1993).
Evidence of the actual sale price of the subject property was presented. The evidence established that the transaction was voluntary and close in time to the valuation date of January 2013. The evidence established that the Complainant was well informed, advised, typically motivated, and acting in his own interest. The property was exposed to the market for two years which was reasonable for a residential property. There was no evidence that there was any issues as to financing.
Mr. Pitcher, during his testimony, made commentary regarding the Assessor’s Office’s valuation and mass appraisal. Single property appraisal is the valuation of a specific property on an assigned date using market research. Mass appraisal also appraises property for an assigned date using market research; however, the appraisal is not for a single property, but the valuation of many property. Mass appraisal uses standard procedures and statistical testing.
Mr. Pitcher presented a chart with various properties in St. Louis County, sale information and the Assessor’s Office’s true value. Although Mr. Pitcher denied pursuing a discrimination claim, his testimony could be generally characterized as expressing a belief that the assessment was unfair or that the assessments in the county were not uniform.
In order to obtain a reduction in assessed value based upon discrimination, the Complainants must (1) prove the true value in money of their property on January 1, 2013; and (2) show an intentional plan of discrimination by the assessing officials resulting in an assessment of that property at a greater percentage of value than other property, generally, within the same class within the same taxing jurisdiction. Koplar v. State Tax Commission, 321 S.W.2d 686, 690, 695 (Mo. 1959). Evidence of value and assessments of a few properties does not prove discrimination. Substantial evidence must show that all other property in the same class, generally, is actually undervalued. State ex rel. Plantz v. State Tax Commission, 384 S.W.2d 565, 568 (Mo. 1964). The difference in the assessment ratio of the subject property the average assessment ratio in the subject county must be shown to be grossly excessive. Savage v. State Tax Commission of Missouri, 722 S.W.2d 72, 79 (Mo. banc 1986). No other methodology is sufficient to establish discrimination. Cupples-Hesse, supra.
Complainant Fails To Prove Discrimination
Where there is a claim of discrimination based upon a lack of valuation consistency, Complainants have the burden to prove the level of assessment for properties in the tax year. This is done by independently determining the market value of the subject property and dividing the market value into the assessed value of the property as determined by the assessor’s office.
Complainant must then prove the average level of assessment for residential property in St. Louis County for the tax year. This is done by (a) independently determining the market value of a representative sample of residential properties in St. Louis County; (b) determining the assessed value placed on the property by the assessor’s office for the relevant year; (c) dividing the assessed value by the market value to determine the level of assessment for each property in the sample; and (d) determining the mean and median of the results.
The difference between the actual assessment level of the subject property and the average level of assessment for all residential property, taken from a sufficient representative sample in St. Louis County must demonstrate a disparity that is grossly excessive. Savage, supra.
Complainant’s discrimination claim fails because he failed to establish the market value of the subject property. Without establishing its market value, he cannot establish the assessment ratio. Without establishing the ratio, he cannot establish that the subject property is being assessed at a higher percentage of market value that any other property.
However, even if Complainant had established market value, the discrimination claim would still fail because he did not demonstrate that a statistically significant number of other residential properties within St. Louis are being assessed at a lower ratio of market value than his property.
Because Complainant has failed to establish the market value and that he is being assessed at a higher percentage of market value than a statistically significant number of other properties in St. Louis County, he has failed to establish discrimination.
The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization for St. Louis County for the subject tax day is AFFIRMED.
The assessed value for the subject property for tax year 2013 is set at $156,750.
Application for Review
A party may file with the Commission an application for review of this decision within thirty days of the mailing date set forth in the Certificate of Service for this Decision. The application shall contain specific facts or law as grounds upon which it is claimed the decision is erroneous. Said application must be in writing addressed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, MO 65102-0146, and a copy of said application must be sent to each person at the address listed below in the certificate of service.
Failure to state specific facts or law upon which the application for review is based will result in summary denial. 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 this 8th day of December, 2015.
STATE TAX COMMISSION OF MISSOURI
Certificate of Service
I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 8th day of December, 2015, to: Complainants(s) counsel and/or Complainant, the county Assessor and/or Counsel for Respondent and county Collector.
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