State Tax Commission of Missouri
PETER W. BROWN,)
v.)Appeal Number 05-73012
ROBERT RAINES, ASSESSOR,)
MORGAN COUNTY, MISSOURI,)
AFFIRMING HEARING OFFICER DECISION
UPON APPLICATION FOR REVIEW
On April 5, 2006, Senior Hearing Officer W. B. Tichenor entered his Decision and Order (Decision) affirming the assessment by the assessor of Morgan County of Complainant’s cabin cruiser.
Complainant timely filed his Application for Review of the Decision.
Complainant challenges the conclusion in the Hearing Officer’s Decision that “The subject cabin cruiser is designed and is no doubt used as a temporary dwelling when used by Complainant in Morgan County.”Complainant now asserts in his Application for Review that when at the Lake of the Ozarks, he does not lodge on the boat, but lodges in the house his wife owns.This was not evidence in the record before the Hearing Officer.He only asserted the boat was not used for “lodging.”
Whether the assertion that Complainant lodges at his wife’s house is in the record or not, the Complainant’s focus on the lodging language is misplaced when applying Section 137.090.In the Bialecke case [Bialecke, et al. v. Bauer, 581 S.W.2d 35 (Mo. banc 1979)] the Missouri Supreme Court grappled with the lodging language in the statute and applied it to cabin cruisers and houseboats.However, subsequent to that decision, Section 137.090, RSMo was amended to read, in pertinent part:
All tangible personal property of whatever nature and character situate in a county other than the one in which the owner resides shall be assessed in the county where the owner resides; except that, houseboats, cabin cruisers, floating boat docks, and manufactured homes, as defined in section 700.010, RSMo, used for lodging shall be assessed in the county where they are located . . . . (Emphasis Added)
As the Hearing Officer pointed out on page 3 of the Decision, floating boat docks cannot be used for lodging.The insertion of “floating boat docks” in the statute (which pointedly separates “houseboats” and “cabin cruisers” from “manufactured homes”) clearly indicates legislative intent for the phrase “used for lodging” to modify only “manufactured homes” and not to modify houseboats, cabin cruisers, and floating boat docks.
In Complainant’s Statement, he also argued that “because I do not reside there” (Morgan County), his boat should not be assessed there.It is the Commission’s opinion that Section 137.090, RSMo is applied to determine which county within the state personal property is to be assessed, not whether the property is taxable.Section 137.075, RSMo makes it clear that the property is taxable.Further, because Complainant is not a Missouri resident, other factors must be considered. The general rule is set out in 71 Am Jur 2d 664 as follows:
[W]hen tangible personal property is permanently located in a state other than the state of the owner’s domicile in such circumstances as to acquire a situs there for purposes of taxation, it is taxable there; in this situation, the state of the domicile of the owner, which affords no substantial protection to the property, has no jurisdiction to tax such property.
This rule is restated in Bi Go Markets, Inc. v. Morton, 843 S.W.2d 916, 919, 920 (Mo. 1992). For an actual situs to exist in Missouri:
1.There must be a continuous presence in this state which supplants the home state and, thus, allows Missouri to acquire taxing power over the personalty.Peabody Coal Co. v. State Tax Commission, 731 S.W.2d 837, 839 (Mo. 1987).The property must have a more or less permanent location or situs and more than a mere temporary presence.Buchanan County v. State Tax Commission, 407 S.W.2d 910, 914 (Mo. 1966).
2.The due process requirements of the U.S. Constitution must be satisfied in that the tax must be related to the opportunities, benefits or protection conferred by or afforded by the taxing state. Bi Go Markets, supra
Under this analysis, the subject property is taxable in Missouri, has established a situs in Morgan County, and is taxable there.
The Commission upon review of the record and Decision in this appeal, finds no grounds upon which the results of the Decision of the Hearing Officer should be reversed or modified.Accordingly, the Decision is affirmed.
Judicial review of this Order may be had in the manner provided in Sections 138.432 and 536.100 to 536.140, RSMo within thirty days of the date of the mailing of this Order.
SO ORDERED May 31, 2006.
STATE TAX COMMISSION OF MISSOURI
Bruce E. Davis, Chairman
Jennifer Tidwell, Commissioner
Charles Nordwald, Commissioner
DECISION AND ORDER
Decision of the Assessor, AFFIRMED, Hearing Officer finds true value in money for the subject property for tax year 2005 to be $129,350, assessed value of $43,120, assessed as personal property in Morgan County, Missouri.
Case submitted on Statements and decided by Senior Hearing Officer W. B. Tichenor.
The Commission takes this appeal to determine whether the subject watercraft is to be assessed in Morgan County, Missouri as of January 1, 2005.
Complainant appeals on the ground of improper assessment under Section 137.090, RSMo. By agreement of the parties the case was submitted on statements.Complainant’s Statement in Support of Appeal; Respondent’s Statement in Support of a Proper Assessment. The Hearing Officer, having considered the arguments advanced and the law applicable to this appeal enters the following Decision and Order.
Complainant argues that the plan language of Section 137.090, RSMo requires that his watercraft not be assessed and thereby taxed in Morgan County, Missouri since it is not “used for lodging.”
FINDINGS OF FACT
1.Jurisdiction over this appeal is proper.Complainant timely appealed to the State Tax Commission from the assessment made by the Morgan County Assessor.
2.The subject property is identified in the assessor’s records by account number 20 2311520600.The property is a 2003 Tiara.It is a 31’ 6” fiberglass inboard cruiser with vehicle identification number of SSUS1827B303.It has a galley, dinette, head and bedroom.The September 2004 N.A.D.A Marine Appraisal Guide gave a trade in value of $129,350.The assessor assessed the watercraft at $43,120.Valuation was not at issue.Complainant’s Statement in Support of Appeal;Respondent’s Statement in Support of a Proper Assessment.
3.Complainant lives in Overland Park(Johnson County)Kansas.
CONCLUSIONS OF LAW
The Commission has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious.Article X, section 14, Mo. Const. of 1945; Sections 138.430, 138.431, RSMo.The hearing officer shall issue a decision and order affirming, modifying or reversing the determination of the assessor, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious.Section 138.431.4, RSMo.
Presumption on Assessor’s Value
TheSupreme Court of Missouri has held, “A tax assessor’s valuation is presumed correct.”Snider v. Casino Aztar/Aztar Missouri Gaming Corp., 156 S.W.3d 341, (Mo. 2005).Citing to Hermel, supra; and Cupples Hesse Corp. v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).
The issue in this appeal is a matter of law as to the application ofSection 137.090, RSMo.The owner’s contention is that the plain language of Section 137.090 requires that his watercraft be assessed in the county where the owner resides.
Section 137.090, RSMo provides in relevant part as follows:
“All tangible personal property of whatever nature and character situated in a county other than the one in which the owner resides shall be assessed in the county where the owner resides; except that, houseboats, cabin cruisers, floating boat docks, and manufactured homes, as defined in section 700.010 RSMo, used for lodging shall be assessed in the county where they are located, ….”
Complainant asserts that the phrased “used for lodging” modifies the listing of houseboats, cabin cruisers, floating boat docks and manufactured homes.Mr. Brown argues that since his residence is not inMorganCountyand he does not “lodge” in his cabin cruiser, his boat should not be assessed inMorganCounty.The phrase “used for lodging” appears to modify manufactured homes, since it does not appear that one could “lodge” on a floating boat dock.However, if applied to houseboats and cabin cruisers it will not support Complainant’s argument.
The ordinary dictionary definition of lodging is “to serve as a temporary dwelling.”It is obvious that the subject cabin cruiser, being equipped with a galley, dinette, head and bedroom is designed and intended to serve as a place of temporary dwelling.Given the fact that Complainant lives in Johnson County, Kansas and his cabin cruiser is located in Morgan County, Missouri, a driving distance of approximately 3 hours, more or less, it is highly unlikely that Complainant drives down to the Lake of the Ozarks once in a while to go out on his boat and then drives back home the same day.
The word lodging is not the same as residing.No assertion is made that Mr. Brown resides on the watercraft.The applicable statute does not call for a person to reside in the cabin cruiser or house boat.The subject cabin cruiser is designed and is no doubt used as a temporary dwelling when used by Complainant inMorganCounty.Therefore, it is “used for lodging” and as a matter of law comes within the purview of the statutory requirement that it be assessed in the county where it is located.
The issue raised by Complainant has previously been addressed by the Missouri Supreme Court in the case of Bialecke, et al. v. Bauer, 581 S.W.2d 35 (Mo. banc 1979).In Bialecke, non-residents ofSt. Charles County,Missouri challenged whether cabin cruisers and houseboats moored and docked inSt. CharlesCounty could be assessed as personal property inSt. CharlesCounty under Section 137.090, RSMo.The Court held such assessment was proper under the statute.
The assessed valuation for the subject property as determined by the Assessor forMorganCountyfor the subject tax day is AFFIRMED.
The assessed value for the subject property for tax year 2005 is set at $43,120.
A party may file with the Commission an application for review of this decision within thirty (30) days of the mailing of such decision.The application shall contain specific grounds upon which it is claimed the decision is erroneous.Failure to state specific facts or law upon which the appeal is based will result in summary denial.Section 138.432, RSMo 2000.
If an application for review of this decision is made to the Commission, any protested taxes presently in an escrow account in accordance with this appeal shall be held pending the final decision of the Commission.If no application for review is received by the Commission within thirty (30) days, this decision and order is deemed final and the Collector of Morgan County, as well as the collectors of all affected political subdivisions therein, shall disburse the protested taxes presently in an escrow account in accord with the decision on the underlying assessment in this appeal.If any or all protested taxes have been disbursed pursuant to Section 139.031(8), RSMo, either party may apply to the circuit court having jurisdiction of the cause for disposition of the protested taxes held by the taxing authority.
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 April 5, 2006.
STATE TAX COMMISSION OFMISSOURI
W. B. Tichenor
Senior Hearing Officer