Pipat & Pragar Auksarawongrot v. Nordwald (Warren)

 

PIPAT & PRAGAR AUKSARAWONGROT,)

)

Complainants,)

)

v.) Appeal No.11-91001

)

WENDY NORDWALD,ASSESSOR,)

WARREN COUNTY, MISSOURI,)

)

Respondent.)

 

DECISION AND ORDER

 

HOLDING

 

Decision of the Warren County Board of Equalization sustaining the assessment made by the Assessor is SET ASIDE.Evidence rebutted the presumption of correct assessment by the Board of Equalization and provided basis for Hearing Officer to determine true value in money.

True value in money for the subject property for tax years 2011 and 2012 is set at $130,450, residential assessed value of $24,790.

Complainant, Pragar Auksarawongrot, appeared pro se.

Respondent appeared in person and by Assistant Prosecuting Attorney, Kathryn A. Busch.

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

ISSUE

Complainants appeal, on the ground of overvaluation, the decision of the Warren 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, 2011.The Hearing Officer, having considered 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.A hearing was conducted on January 26, 2012, at the Warren County Courthouse, Warrenton, Missouri.[1]

2.Subject Property.The subject property is located at 35 Appaloosa Way, Wright City, Missouri.The property is identified by map parcel number 4-4-2-12.051.The property consists of an 80 by 125 foot lot, or 10,000 square feet in total area. The lot is improved with a single-story, ranch-style home.The house is wood framed with vinyl siding.The house is of average quality construction.It was constructed in 2004, with six rooms, three bedrooms and two full bathrooms.It contains 1,512 square feet of living area.The basement is unfinished and there is a two-car attached garage.[2]

There was no listing or sale of the property noted within three years prior to the tax date of January 1, 2009.

3.Assessment.The assessor appraised the property at $136,810, assessed residential value of $25,990.[3]The Board sustained the assessment.[4]

4.Complainant’s Evidence.Complainant presented the following Exhibits and testified in her own behalf.

 

Mr. Fisele testified in support of his appraisal.Mrs. Auksarawongrot testified at the January 10^th hearing that her opinion of value was $109,000 based upon the Lewis appraisal. At the January 26^th hearing, Complainant relied upon the Fisele appraisal as indicative of the subject’s fair market value as of January 1, 2011. Exhibit B was received into evidence.Exhibit C was objected to.Objection was taken under advisement to be ruled on in this decision.See, Ruling on Objection to Exhibit C, infra.

There was no evidence of new construction and improvement from January 1, 2011, to January 1, 2012, therefore the assessed value for 2011 remains the assessed value for 2012.[6]

5.Respondent’s Evidence.Respondent presented the following exhibits:

 

Mr. Dodd testified in support of his appraisal.Ms. Nordwald testified relative to Exhibit 2.Exhibits 1 and 2 were received into evidence.

6.True Value and Assessed Value.The true value in money of the subject property is $130,450, residential assessed value of $24,790.See, Hearing Officer Determines Value, infra.

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.[7]

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.[8]The constitutional mandate is to find the true value in money for the property under appeal. By statute real and tangible personal property is assessed at set percentages of true value in money.[9]In an overvaluation appeal, true value in money for the property being appealed must be determined based upon the evidence on the record that is probative on the issue of the fair market value of the property under appeal.

Presumption In Appeals

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[10]This presumption is a rebuttable rather than a conclusive presumption.It places the burden of going forward with some substantial evidence on the taxpayer – Complainant.When some substantial evidence is produced by the Complainant, “however slight”, the presumption disappears and the Hearing Officer, as trier of facts, receives the issue free of the presumption.[11]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.[12]Upon presentation of the Complainant’s evidence[13] the presumption in this appeal disappeared.The case is decided free of the presumption.[14]

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.[15]True value in money is defined in terms of value in exchange and not value in use.[16]It is the fair market value of the subject property on the valuation date.[17]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.

 

6.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.[18]

 

Both appraisers appraised the property under the Standard For Valuation.[19]

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.[20]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.[21] Complainant’s appraiser[22] and Respondent’s appraiser both concluded value based upon the development of a sales comparison approach to value.

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, the facts or data need not be admissible in evidence.[23]

The facts or data upon which both Mr. Fisele and Mr. Dodd based their opinions of value were of a type reasonably relied upon by experts in the field of residential real estate appraisal.The facts and data were considered by each appraiser to be otherwise reliable for use in their respective appraisals.

Complainants’ Burden of Proof

In order to prevail, Complainants 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, 2011.[24]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.”[25]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.

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[26]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.[27]

The appraisal report and direct and cross-examination testimony of Mr. Fisele, standing on its own, constituted substantial and persuasive evidence to establish the value of $116,000.

Ruling on Objection to Exhibit C

At the close of Respondent’s case, Complainant was recognized to make her closing argument.She proceeded to read from a document.The document was marked as Exhibit C.Counsel for Respondent objected on the grounds of lack of any evidence in the record to support claims with regard to the comparables used by Mr. Dobbs in his appraisal.

The objection is well taken.There is no supporting documentation with regard to the various amenities to the comparables that the Complainant asserts are present.Some of the information in the exhibit is hearsay.The Exhibit was received as closing argument, but it makes assertions for which there are no facts in evidence.Therefore, Exhibit C is excluded from the record.It is maintained in the Commission file only as an offer of proof by Complainant.No probative weight is given to the exhibit.

Owner’s Opinion of Value

The owner of property is generally held competent to testify to its reasonable market value.[28]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[29]In this instance, the opinion of value of Mrs. Auksarawongrot was simply based upon the Fisele appraisal.It is deemed to be based upon property elements and a proper foundation.However, there is no additional probative weight given to the owner’s opinion.

Respondent’s Burden of Proof

Respondent, when advocating a value different from that determined by the original valuation or a valuation made by the Board of Equalization, must meet the same burden of proof to present substantial and persuasive evidence of the value advocated as required of the Complainant under the principles established by case law.[30]Mr. Dodd’s appraisal and his direct and cross-examination testimony constituted substantial and persuasive evidence to establish the value of $145,000.

Hearing Officer Determines Value

The Hearing Officer has before him an appraisal on behalf of each party prepared by a State Certified Real Estate Appraiser.The appraisal evidence taken separately establishes values of $116,000 and $145,000.The determination of value must consider all of the relevant sales data in the record.

107 Trotters Creek Lane

Respondent challenged at hearing the use by Mr. Fiesle of the sale of the property at 107 Trotters Creek Lane.The objection to the use of this sale was that it sale after foreclosure of the property.Exhibit 2 – the property record card on 107 Trotters Creek Lane – shows the following: (1) Chase Home Finance LLC became owner on 11-6-09; (2) Federal National Mortgage Association became owner on 11-11-09; and (3) Matthew Lindsay became owner on 12/17/10.

The Assessor had no further information relative to the marketing of the property between 11/11/09 and 12/17/10 when it sold.This was the sale used by Mr. Fisele in his appraisal.It can be reasonably concluded that Chase Home Finance foreclosed on the property on November 6, 2009.It can also be concluded that Federal National was the insurer of the loan on the property and therefore took ownership and marketed the property for sale.The information upon Mr. Fisele relied in his appraisal about this property was that came from the MLS (MultiListing Service).

The party seeking to admit comparable sales evidence bears the burden of showing that the sale was voluntary.[31]This burden is discharged prima facie, however, because the law presumes the sale price was “freely fixed and not under compulsion.”[32]The burden then shifts to the opposing party to produce evidence that the sale was not voluntary.[33]

In the present case, the sale price of Comparable Sale 3 in the Fisele appraisal – 107 Trotters Creek Lane – is presumed to have been freely fixed and not under compulsion.In other words, the transaction involved a willing buyer and a willing seller.To have this sale stricken from the Fisele appraisal, the burden was on Respondent to present evidence to establish that the sale was not voluntary.Evidence that Federal National was the seller on December 28, 2010, does not establish that the price was not freely fixed.Nor does it establish that Federal National was compelled to sell the property at $115,000.

Assertions that “bank owned properties sell for less” is not evidence.Absent market data to support the claim there is no probative merit to this generalization.Even assuming, without finding, that a bank owned property sells at the lower end of the market range, does not establish that it is not part of the market.It is.A bank owned property exposed to the market, in this instance for apparently a year or longer, constitutes part of the market at its date of sale.There is nothing in this record upon which the Hearing Officer can conclude that the sale on December 28, 2010, just four days prior to the valuation date in this appeal, was not a market transaction.Nor is there any evidence that would provide a foundation for concluding that the price of $115,000 did not represent the fair market value of the property on that date.It was a sale between a willing buyer and seller as far as this evidentiary record is concerned.Accordingly, Respondent’s objections and reservations as to the use of the property in the Fisele appraisal are of no merit.

Fisele Valuation Date

The Fisele appraisal opined a value as of June 23, 2011.The appraisal was for a refinancing of Complainants’ loan.The valuation date for this appeal is January 1, 2011.The appraiser was of the opinion that his concluded value was likewise valid as of January 1, 2011.The Hearing Officer concludes that notwithstanding an appraisal date six months after the valuation date, the sales utilized were all at a time relevant to the valuation date for an appeal before the Commission.

Utilization of Sales After 1/1/12

Appraisals for appeals before the Commission are of necessity retrospective appraisals.Appraisers generally do not rely upon sales of properties as comparable sales that are after the valuation date.The Hearing Officer, on numerous occasions, has been informed by various appraisers, that they are not to use sales after the valuation date.Applying that standard, sales after January 1, 2011, would not be considered by an appraiser, even though the appraisal assignment would be for a retrospective valuation.

The Hearing Officer’s review of the Uniform Standards of Professional Appraisal Practice (USPAP) failed to reveal any Standard that provided that in a retrospective appraisal the appraiser was precluded from utilizing a sale that occurred after the valuation date.[34]Standard 1-4 stated:

“In developing a real property appraisal, an appraiser must collect, verify and analyze all information necessary for credible assignment results.

(a)    When a sales comparison approach is necessary for credible assignment results, an appraiser must analyze such comparable sales data as are available to indicate a value conclusion.”

 

The foregoing was the only language the Hearing Officer found that seemed to touch on the subject.In performing a retrospective the appraiser has the benefit of being able to consider and analyze sales of properties that occurred after the valuation date, since such data are available.In an appraisal being performed in June 2011, the appraiser, of course, would have no available data from August or September, 2011 since any sales that might take place in those months would not have occurred by June.

However, when performing a retrospective appraisal to determine value as of January 1, 2011, the appraiser has comparable sales data available that represent transactions after that date.Everything else being equal as to the comparability of the sale property or properties, the fact that a property sold after 1/1 valuation date does not disqualify it from being used in an appraisal in an appeal before the Commission.Irrespective of what USPAP may or may not say on the subject, or what appraisers may have been instructed in their appraisal course, as long as the date of sale is at a time relevant to the valuation date, then the Hearing Officer may consider it.

In this case, the Fisele appraisal sales comparison presented two sales that occurred 17 and 23 days after the valuation date.Those sales clearly occurred at a time relevant to a 1/1 valuation.To draw an arbitrary line and say no sale after 1/1 may be considered files in the face of simple logic.It is the responsibility of the Hearing Officer to consider the dates of sale in relation to the 1/1 valuation date and determine if a sale occurred at a time relevant to the valuation date.

Appraisals Equally Persuasive

There was nothing in either appraisal that provided the Hearing Officer’s mind with a higher level of persuasion for one over the other.On average the Fisele comps were 157 square feet smaller than the subject, and the Dodd comps were 151 square feet smaller than the subject.All comps where in the same general proximity to the subject.No comparable was deemed superior to the subject by its location.The factors that required adjustment were minimal.The living area adjustments were $20 (Fisele) and $25) Dodd.Adjustment for fireplace was $1,500 for both appraisers.Each appraiser adjusted for a patio at $500.The Fisele sales were all closer to the valuation date than the Dodd sales.However, the Dodd sales were all at a time relevant for valuation in this instance.As previously noted, standing on their own, each appraisal presented substantial and persuasive evidence to conclude the value presented by each expert.

Valuation Ranges

Since neither appraisal tilted the scales in the Hearing Officer’s mind, it is necessary to give further consideration and review to the values concluded in each appraisal.The evidence provides a range of Adjusted Sales Prices from the highest to the lowest in this appeal, as follows:

 

The range presents a variance of $34,600.The median indicated value is $126,110.The mean is $127,670, rounded.

A ranking of the six sales based on date of sale from the closest to the valuation date places the sales as follows:

 

The overall range and mean, of course, remain the same.However, the sales occurring from August 2009 through May 2010 represent the higher end of the range.The sales occurring, within a very limited time frame from within four days before to 23 days after valuation date equate to the lower end of the range.In this analysis the median sale price calculates to $130,400.

A third point of consideration is the two sales from each appraisal closest in living area to the subject.Mr. Fisele’s Comp 3 is the same size as the subject – 1,512.The adjusted sales price for this sale is $116,000.Mr. Dodd’s Comp 1 is only 60 square feet larger than the subject.The concluded value using this adjusted sale was $147,700.Giving equal weight to these two adjusted sales provides an indicated value of $131,850.

The final point of consideration for the Hearing Officer is the concluded value of Mr. Fisele and Mr. Dodd in their appraisals.Mr. Fisele concluded value of $116,000.This is the adjusted sale price for his Comp 3 which is in the middle of his range of value from $113,100 to $124,320.This was also the sale which required the smallest net and gross adjustments in his analysis.Mr. Dodd concluded a value of $145,000 which was closest to his indicated value from his Comp 1 ($147,700).He placed significantly more weight on this comparable than on his Comps 2 and 3.If equal weight is given to the opinion of each appraiser, the indicated value would be $130,500.

The four methods of analysis by the Hearing Officer resulted in median values of $126,110, $130,400, $131,850 and $130,500.The fair market value of the property under appeal as of January 1, 2011, is $130,450.

Weaknesses In Appraisals

The Hearing Officer, as a matter of constructive criticism, provides the following review of what are considered to be weaknesses within each of the appraisals in this appeal.The discussion which follows does not challenge or assert that the appraisers did not comply with the relevant Standards for development and reporting of their appraisal.The discussion only addresses the points raised relative to evidentiary value in an appeal before the Commission.It is provided for the benefit of not only Mr. Fisele and Mr. Dodd, but also for other appraisers who may appear before the Commission and legal counsel who may have the responsibility of trying a case before the Commission.

Adjustments in General

In general more than language stating what the adjustment in the sales grid is should be provided in the appraisal.The Hearing Officer understands that a negative adjustment represents a factor of superiority to the subject and a positive adjustment represents a factor of inferiority to the subject.Therefore, reciting that on a given amenity the comparable was inferior or superior to the property being appraised provides nothing more than what can be concluded from the sales grid for positive or negative adjustments.

The Fisele appraisal provides at the Addendum the Comments on Sales Comparison.The language is generally basic boilerplate language, without any discussion or explanation as to how the appraiser arrived at any specific adjustment.This apparently is sufficient for a refinance appraisal for a lending institution that does not mean it is sufficient when presented in a contested case before the Commission.

The Dodd appraisal at page 20 set out the Sales Comparison Reconciliation.Here also is general boilerplate language.There is however some discussion as to the various adjustments made for factors which the appraiser warranted required adjustment.However, the discussion is essentially a recitation of what the amount of a given adjustment was, as opposed to providing any explanation of the methodology or analysis that lead the appraiser to the adjustment.

Living Area Adjustments

Mr. Fisele adjusted living at a rate of $20 per square foot of variance from the subject.Mr. Dodd’s adjustment was at a factor of $25 per square foot difference.The weakness in both appraisals is that there is no explanation as to how either appraiser arrived at his per unit adjustment.The Hearing Officer doesn’t know if this was based on any past studies, a generally accepted and validated standard or methodology for this type of appraisal, if so from what source, or if the appraiser simply picked the amount for the adjustment out of thin air.

For appraisals to be presented to the Commission an explanation should be provided as to why the factor of $20 or $25 was chosen and the basis behind that selection.The Hearing Officer recognizes that Mr. Fisele did not prepare his appraisal in anticipation of it being evidence before the Commission.However, upon learning that it was to be offered as evidence, the appraiser should have considered whether he should provide testimony in explanation of each of his adjustments.

Fireplace & Patio Adjustments

The appraisers agree that for a comp that did not have a fireplace (as the subject did) an adjustment of $1,500 was appropriate.It is fine that the appraisers agree on this adjustment.However, the Hearing Officer has no basis from the appraisal report to ascertain how that amount was determined.If the cost to construct a fireplace, was the basis for the adjustment that should have been explained.If it was cost to construct less depreciation, that should have also had an explanation within the body of the appraisal.If there was market data that all other things being equal a house with a fireplace selling at a time relevant to the valuation date would bring $1,500 more than a house without a fireplace, that information should have been provided.

The appraisers were also in agreement that a $500 adjustment for difference in patios was appropriate.However, here again no explanation was provided.

Summary

When an appraiser puts a dollar amount adjustment into his sales grid, the Hearing Officer expects that within the body of the appraisal there will be an explanation of how the appraiser arrived at the adjustment and the data, methodology or basis that underlies the adjustment.“Where the basis for a test as to the reliability of the testimony is not supported by a statement of facts on which it is based, or the basis of fact does not appear to be sufficient, the testimony should be rejected.”[37]The reliability of adjustments made in a sales comparison grid are to be supported by an appropriate foundation derived from market data, an accepted methodology for concluding the adjustment, or a basis providing a sound rational.Failure to do so brings into question the validity of the value concluded by an appraiser.

ORDER

The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization for Warren County for the subject tax day is SET ASIDE.

The assessed value for the subject property for tax years 2011 and 2012 is set at $24,790.

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.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 application for review is based will result in summary denial. [38]

Disputed Taxes

The Collector of Warren 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 March 6, 2012.

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 6^thday of March, 2012, to:Pipat Auksarawongrot, 35 Appaloosa Way, Wright City, MO 63390, Complainant; Kathryn Busch, Assistant Prosecuting Attorney, 104 W. Main, Suite E, Warrenton, MO 63383, Attorney for Respondent; Wendy Nordwald, Assessor, 105 S. Market, Warrenton, MO 63383; Barbara Daly, Clerk, 104 W. Booneslick Rd., Suite B, Warrenton, MO 63383; Linda Stude, Collector, 105 S. Market, Warrenton, MO 63383.

 

 

___________________________

Barbara Heller

Legal Coordinator

 

 

 

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

573-751-2414

573-751-1341 Fax