State Tax Commission of Missouri
OAK TREE APARTMENTS ASSN.,)
v.) Appeal No.07-89506
JAMES STRAHAN, ASSESSOR,)
DECISION AND ORDER
Decision of the Taney County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.Hearing Officer finds Complainant did not rebut the presumption of correct assessment by the Board. True value in money for the subject property for tax years 2007 and 2008 is set at $875,625, residential assessed value of $166,370.
Complainant appeared by Counsel, Richard E. Walters,Springfield,Missouri.
Respondent appeared by Taney County Counselor, Robert Paulson.
Case submitted on exhibits filed and decided by Senior Hearing Officer W. B. Tichenor.
The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2007.
Complainant appeals, on the ground of overvaluation, the decision of the Taney County Board of Equalization, which sustained the valuation of the subject property.The Assessor determined an appraised value of $875,625, assessed value of $166,370, as residential property.Complainant proposed a value of $672,000, assessed value of $127,680.
The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.
Complainant submitted the following exhibits.No objection was made.The exhibits are received into evidence.
Income and Expense Worksheet
Written Direct Testimony of Ryan Hamilton
Respondent offered no exhibits or written direct testimony in response to the Commission Order of January 2, 2008.
FINDINGS OF FACT
1.Jurisdiction over this appeal is proper.Complainant timely appealed to the State Tax Commission from the decision of the Taney County Board of Equalization.
2.By Order dated August 13, 2008, Counsel for Respondent was given until
August 22, 2008, to advise the Hearing Officer in writing, that he wished to cross-examine Complainant’s witness.Failure to so advise the Hearing Officer would be deemed waiver of the evidentiary hearing and consent to submission of the appeal upon Complainant’s Exhibits.Counsel for Respondent did not advise the Hearing Officer that he desired to cross-examine Complainant’s witness.
3.The subject property is located at 414 Niehardt, Branson, Missouri.The property is identified by parcel number 08-9.0-31-004-005-002.00.The property consists of a twenty-four unit apartment building designated as a tax credit low-income housing project.
4.There was no evidence of new construction and improvement from January 1, 2007, to January 1, 2008.
5.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 as of January 1, 2007, to be $672,000, as proposed in the Complaint for Review of Assessment.
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.
Presumptions In Appeals
There is a presumption of validity, good faith and correctness of assessment by the CountyBoardof Equalization.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.Exhibits A and B do not constitute substantial and persuasive evidence to rebut the presumption of correct assessment by the board.
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.It is the fair market value of the subject property on the valuation date.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.
Complainant’s 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, 2007.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.”
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.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.
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.”The testimony of Mr. Hamilton, an officer of the general partner of the limited partnership which owns the property under appeal, states no opinion of fair market value.All that Mr. Hamilton testified to related to value was that the property value should be recalculated based upon actual operating expenses.
Exhibit A provides a calculation of Effective Gross Income and Total Expenses for years 2004, 2005 and 2006.Nothing is provided as to Capitalization and a conclusion of Value.Exhibits A and B fail to establish any value for the subject property.The amount set forth on the Complaint form as the true value of the subject property by the taxpayer is not demonstrated to be established by Exhibits A or B.The Hearing Officer is left to mere speculation, conjecture and surmise.Decisions in appeals before the Commission cannot be based on such elements.Complainant failed to meet its burden of proof.
The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization forTaneyCountyfor the subject tax day is AFFIRMED.
The assessed value for the subject property for tax years 2007 and 2008 is set at $166,370.
Complainant may file with the Commission an application for review of this decision within thirty days of the mailing of such decision.The application shall contain specific 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.
The Collector of St. Taney County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending a filing of an Application for Review, unless said taxes have been disbursed pursuant to a court order under the provisions of 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 August 29, 2008.
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 29thday of August, 2008, to:Richard Walters, 901 St. Louis Street, Suite 1900, Springfield, MO 65806, Attorney for Complainant; Robert Paulson, County Counselor, P.O. Box 1086, Forsyth, MO 65653, Attorney for Respondent; James Strahan, Assessor, P.O. Box 612, Forsyth, MO 65653; Donna Neeley, Clerk, P.O. Box 156, Forsyth, MO 65653; Sheila Wyatt, Collector, P.O. Box 278, Forsyth, MO 65653.
 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).
 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.
 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).