Parc Provence v. Muehlheausler (SLCO)

 

PARC PROVENCE REAL ESTATE, LLC,)

)

Complainant,)

)

v.) Appeal Number 08-10098

)

PHILIP MUEHLHEAUSLER, ASSESSOR,)

ST. LOUIS COUNTY,MISSOURI,)

)

Respondent.)

 

DECISION AND ORDER

 

HOLDING

 

Decision of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor is SET ASIDE.True value in money for the subject property for tax year 2008 is set at the 2007 value of $12,503,600, residential assessed value of $2,375,690.

Complainant appeared by Counsel, James P. Gamble, St. Louis, Missouri.

Respondent appeared by Associate County Counselor, Paula J. Lemerman.

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

ISSUE

The Commission takes this appeal to determine whether there was a statutory basis for the Assessor to increase the assessed value of the subject property from the 2007 assessment of $2,375,690, to the assessed value of $3,963,330 for the 2008 assessment.

SUMMARY

Complainant appeals the decision of the St. Louis County Board of Equalization, which sustained the valuation of the subject property.The Assessor determined an appraised value of $20,859,600, assessed value of $3,963,330, as residential property.Complainant challenged the valuation by the Assessor and the Board on the ground that the value of the property under appeal had been increased for the 2008 assessment in the absence of any new construction and improvement.The Hearing Officer, having considered Complainant’s Motion, Respondent’s Response, Complainant’s Reply Memorandum and 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.Complainant timely appealed to the State Tax Commission from the decision of the St. Louis County Board of Equalization.[1]

2.Subject Property.The subject property is located at 605 Coeur De Ville Drive, Creve Coeur, Missouri.The property is identified by parcel number 17O240718.The Property is improved with a nursing home.[2]The subject property is classified as subclass 1 real property, i.e. residential property.It is situated in St. Louis County, a county of the first classification with a charter form of government and a population of more than 1,000,000 inhabitants.[3]The construction and improvements to the property were made in 2004.[4]There was no new construction or improvements to the subject property from January 1, 2007, to January 1, 2008.[5]

3.Motion for Decision.Complainant filed its Motion for Decision, with Memorandum in Support of Motion, and the following Affidavits and Exhibits:

 

Exhibits and Affidavits are received into evidence.

4.Respondent’s Response.Respondent filed its Response with the following Exhibits and Affidavit:

 

Exhibits and Affidavit are received into evidence.

5.Complainant’s Reply.Complainant filed its Reply Memorandum with the following Exhibits.

 

6.Assessment History.

a.2005-2006 Assessment.Property was appraised for the 2005 tax year at $12,503,600.On May 15, 2006, Change of Assessment Notice was issued increasing the appraised value to $18,553,900 based upon new construction.Complainant appealed this increase to the Board on the ground that an even-year increase in assessed value was not permitted.The assessment was reduced back to the 2005 assessment.[6]

b.2007 Assessment.Change of Assessment Notice dated May 23, 2007, increased the appraised value on the property from $12,503,600 to $20,859,600 based on reassessment.The assessment was appealed to the Board on the ground that the owners did not receive notice of the right to request a physical interior inspection pursuant to §137.115.10-12 because either said notice was given less than 30 days before the deadline for filing an appeal or notice was not received by the property owner.The Assessor was unable to provide proof of physical inspection and/or proof of notice to property owners of right to request a physical inspection.The Board found, pursuant to §138.060.1 that the Assessor failed to establish that the physical inspection of the subject property was performed in accordance with §137.115.Accordingly the Board set the appraised value of the property at $12,503,600.[7]

c.2008 Assessment.A Change of Assessment Notice was issued on

May 19, 2008.This Notice increased the appraised value from $12,503,600 (assessed residential value of $2,375,690) to $20,859,600 (assessed residential value of $3,963,330) on the basis of Review by Appraiser.[8]The Assessor’s book as returned to the St. Louis County Council for 2008 set the assessed valuation for the property under appeal at $3,963,330.[9]

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.[10]

Presumptions In Appeals

There is a presumption of validity, good faith and correctness of assessment by the CountyBoardof Equalization.[11]The presumption in favor of the Board is not evidence.A presumption simply accepts something as true without any substantial proof to the contrary.

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 assessed value should have been placed on the property.[12]The evidence establishes that the increasing of the assessed value of the property under appeal in 2008 by the Assessor was contrary to the mandate of §137.115.1.There is no statutory basis in this appeal for an increase in the assessed valuation from 2007 to 2008.Therefore, the presumption of a correct assessment by the Board was rebutted.

Complainant’s Point Argued

There was no new construction or improvements to the subject property during 2007, therefore the increase in assessed valuation for 2008 at issue in this appeal was contrary to the provisions of §137.115.1, RSMo.

Respondent’s Response

The Assessor maintained the same market value he determined for the subject property for 2007, which was reduced by the Board of Equalization in 2007, and assessed the property at 19% of the market value of $20,859,600.The value originally set by the Assessor but reduced by the Board for 2007.The increase in assessment was warranted because a portion of the improvements were partial valued or omitted property based on the BOE’s 2007 assessment.

 

 

Complainant’s Reply

Respondent makes no response or argument in contravention of the Complainant’s argument that there was no new construction during 2007 and therefore the assessed value could not be increased under §137.115.1.There were no omitted or removed improvements as of January 1, 2007, that could be added for 2008.

Increase in Assessed Value Contrary to §137.115, RSMo

Complainant filed its Motion for Decision in its favor requesting that the assessed value of the subject property for 2008 be set at $2,375,690, i.e. the same assessed value as established for the property for 2007.Complainant’s Motion is granted.Respondent increased the assessed value of the subject property in an even-numbered year in the absence of any new construction or improvements.The fact that there had been no new construction or improvements during 2007 was established, not challenged by Respondent and thereby admitted.

Section 137.115.1 is the controlling statute in this appeal.The statute provides in relevant part:

The assessor shall annually assess all real property in the following manner:New assessed values shall be determined as of January first of each odd-numbered year and shall be entered in the assessor’s books; those same assessed values shall apply in the following even-numbered year, except for new construction and property improvements which shall be valued as though they had been completed as of January first of the preceding odd-numbered year.(Emphasis added.)

 

The statute mandated that the assessed value set by the Board after appeal for 2007 – $2,375,690 – be maintained as the assessed value for 2008.Respondent cites to no statutory basis for his increasing of the assessed value in the even-numbered year.Section 137.115 does not provide any exception for an increase in assessed value from 2007 to 2008 except for new construction and improvements, which did not occur in this instance.

The precedent of the Commission on this point is clear and well established. The provision of §137.115.1 has been consistently enforced to prevent assessors from increasing assessed values in even-numbered years in the absence of new construction or improvements.[13]By the plain language of the statute Complainant must prevail.

Respondent’s Argument Not Persuasive

Respondent makes no argument directly addressing the issue of increasing an assessed value in an even-numbered year when no new construction and improvement had taken place in the immediate preceding odd-numbered year.Respondent has conceded that no new construction and improvement took place in 2007.Respondent’s argument in support of the position that the 2008 increase in assessment is justified rests upon a claim of partial value/omitted property. The argument is not persuasive.

The basis of Respondent’s claim for increasing the value on the property in an even numbered year finds its genesis in the fact that the property was valued in 2005 based upon occupancy of 69%.[14]Respondent then erroneously concludes that this resulted in a partial value of the nursing home or that part of the property was omitted.

The fact that a valuation was made for the 2005-06 assessment cycle based upon the occupancy of the property does not equate to a partial valuation or an omission of property.The property was valued in its entirety.The 16 acres of land and the structures completed in 2004 were all part of the property record cards on the subject property.[15]Respondent’s line of argument boils down to nothing more or less than an assertion that the property was undervalued by the Board for 2007 and should be increase in 2008.

Respondent’s contention that because he valued the property at $20,859,600 for 2007, even though that was rejected by the BOE, he is entitled to place that value on the property for 2008 because that was his original valuation is unpersuasive.Respondent is, in effect, asserting that the BOE’s 2007 valuation, based upon Respondent’s failure to conduct the inspection and give notice as required by §137.115.10-12, can now be set aside because the requirement on the inspection and notice was carried out in 2008.Therefore, Respondent contends he is complying with §137.115.1 by putting his original 2007 value on the property for 2008.This argument finds no basis for support in the statutes applicable to the assessment of real property.

If the legislature had intended that assessors could correct a failure to comply with §137.115.10-12 by performing the inspection in the following even numbered year and then increasing the property value, it would have so provided.There is no provision in the statute.Therefore, there is no basis for the Hearing Officer to now create such a way around the two-year assessment cycle.

There is no statutory foundation to support a conclusion that the value of Complainant’s property may be increased in 2008 on the basis of it being omitted property in 2007 or any prior years.The two statutory provisions addressing property omitted from taxation are not applicable to the facts in this case.The Assessor did not discover the subject property to have not been returned to him by the clerk.[16]Complainant’s property was not a parcel that had failed to be placed upon the assessor’s book for 2004, 2005, 2006, or 2007.[17]Therefore, the value of the property cannot be increased for 2008 under the statutes controlling omitted property.

January 10, 2008 – BOE Meeting

The January 10, 2008, Agenda for the St. Louis County BOE does not list the subject property as being a matter to come before the Board.[18]The agenda lists Hearings On The Petitions For Tax Exemption, Request for hearing before the Board, Pending Issues for the Board’s Consideration and New Issues for the Board’s consideration.Complainant’s property is not listed by name, address or locator number as any of the properties on the agenda for action by the Board under any of the categories of business to be conducted on January 10, 2008.The Sign In sheet for the January 10, 2008 meeting does not show any individual as having signed in to represent Parc Provence Real Estate.[19]Although Complainant’s Counsel attended the January 10^th meeting, it was not on behalf of Complainant.Mr. Gamble left the meeting after the conclusion of the matters schedule at 3:15 for which he had appeared.[20]There is no record that Mr. Gamble was asked about Complainant’s property at the January 10^th meeting.The Minutes of the January 10^th meeting shows no action by the Board with regard to the property under appeal.[21]

Respondent’s evidence purports to establish the following with regard to the Board’s and Assessor’s action with regard to and following the January 10^th meeting.

1.Assessor requested that the Board reconsider its reduction of the 2007 value, which the Board did at its January 10, 2008, meeting.[22]

 

2.The Board determined that it would not reverse its August 3, 2007, decision.[23]

 

3.The Assessor requested guidance concerning the 2008 assessment of Complainant’s property and the Board directed the Assessor to assess the improvements for 2008 at full value, on the basis that a portion of the nursing home improvements were “omitted property” based on the BOE’s 2007 decision.[24]

 

4.On April 23, 2008 by email correspondence to the Manager of Real Property Appraisal (Sandra Youtzy), Respondent’s Counsel advised, as follows:[25]

 

“In January, the BOE refused the Assessor’s request that the new residential building(s) on parcel 17O240718 be placed back on theassessment roll, after the BOE removed them last summer.

 

This is a reminder/request that we need to make sure that the Assessor places the “removed” improvements on this parcel on the record for 2008 at full market value, as previously omitted property.

 

Your staff will need to inspect this residential property, and give notice to the taxpayer of the proposed new assessment and the right to request an interior inspection within 30 days.You should keep a copy of the notice with a handwritten note, by whoevermails it, stating when it was placed in the mail.”

 

5.On April 25, 2008, an inspection was made of the Complainant’s property and subsequent to that inspection the Assessor placed the subject property on the tax rolls for 2008 at a market value of $20,859,600, residential assessed value of $3,963,330.[26]

 

From the foregoing certain inconsistencies and problems arise. The Board at its

January 10^th meeting was asked by the Assessor to reconsider the 2007 valuation of Complainant’s property.The Board refused to change the 2007 valuation.The Board then instructed the Assessor to place the subject improvements on at full valued based upon the improvements being omitted property under its 2007 decision.

The first problem is that the Board had nothing on its agenda relative to Complainant’s property.The request of the Assessor and the asserted instruction by the Board were not matters that had been noticed for consideration at the meeting.The glaring inconsistency is that Respondent asserts the Board refused to reconsider the 2007 valuation and then the Board purportedly turns around and instructs to the contrary.However, the instructions to Ms. Youtzy of April 23^rd only confirm that the BOE “refused the Assessor’s request that the new residential building(s)” be placed on the assessment roll after the BOE removed then in 2007. There is nothing in Exhibit C (Same as page 2 of Exhibit 4) to establish that the Board had ordered an increase in the valuation of Complainant’s property because it had “removed” buildings in 2007.The minutes of the January 10^th meeting fail to establish the course of action as presented by Respondent.

The characterization of the 2007 Board decision, either by the Board, Assessor’s staff or Counsel, as having been a decision omitting some or all of the improvements on Complainant’s property erroneously characterizes the 2007 Decision.There were no “new residential building(s)” in 2006, 2007 or 2008 to be placed on the assessment roll.The Board’s 2007 decision did not remove any “new residential building(s)” from the assessment roll.

The 2007 BOE Decision specifically found that the Assessor’s value was not substantiated by clear, convincing and cogent evidence and did not establish the true value of the property as of January 1, 2007.The additional comments of the Board established that the basis for its setting of the 2007 true value in money at $12,503,600 was due to the failure of the Assessor to comply with §137.115.10-12.The Board properly concluded that in accordance with §138.060.1 that the taxpayer prevailed as a matter of law.[27]Accordingly the 2007 was set at $12,503,600.

There is no evidence from the 2007 BOE decision to conclude that the subject property or any portion thereof qualified as omitted property under the controlling statutes previously cited.There is no evidence that the 2007 BOE decision removed any improvements on Complainant’s property from the assessment rolls.A comparison of the Commercial/Industrial Review Documents[28] on the subject property for the 2007 assessment and the 2008 increase fail to show any new improvements on the subject property or any improvements that had been omitted and added.

Conclusion

Irrespective of how the increase in valuation for 2008 came about, such action was contrary to §137.115.1.The subject property did not qualify as omitted property under the controlling statutes.There was no new construction and improvements during 2007 to warrant an increase in the assessed value for 2008.The value set by the Board decision of 2007 – $12,503,600 – as a matter of law is the value for tax year 2008.

ORDER

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 SET ASIDE.

The assessed value for the subject property for tax year 2008 is set at $2,375,690.

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.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 appeal is based will result in summary denial. [29]

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 June 23, 2009.

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 23^rdday of June, 2009, to:James Gamble, 8909 Ladue Road, St. Louis, MO 63124, Attorney for Complainants; Paula Lemerman, Associate County Counselor, Attorney for Respondent, County Government Center, 41 South Central Avenue, Clayton, MO 63105; Philip Muehlheausler, Assessor, County Government Center, 41 South Central Avenue, Clayton, MO 63105; John Friganza, Collector, County Government Center, 41 South Central Avenue, Clayton, MO 63105.

 

 

___________________________

Barbara Heller

Legal Coordinator