State Tax Commission of Missouri
REALTY ASSOCIATES FUND VII,)
)
Complainant,)
)
v. ) Appeal No.09-12753
)
JAKE ZIMMERMAN, ASSESSOR,)
ST. LOUIS COUNTY, MISSOURI,)
)
Respondent.)
DECISION AND ORDER
HOLDING
Decision of the St. Louis County Board of Equalization reducing the assessment made by the Assessor is SET ASIDE.Complainant presented substantial and persuasive evidence to rebut the presumption of correct assessment by the Board of Equalization and to establish the true value in money for the subject property as of January 1, 2009.
True value in money for the subject property for tax years 2009 and 2010 is set at $6,020,000, commercial assessed value of $1,926,400.
Complainant appeared by Counsel Thomas Rynard, Blitz, Bardgett & Deutsch, L.C., Jefferson City, Missouri and Patrick J. Boyle, Gunn and Gunn, P. C., St. Louis, Missouri
Respondent appeared by Associate County Counselor, Robert Fox.
Case heard and decided by Senior Hearing Officer W. B. Tichenor.
ISSUE
Complainant appeals, on the ground of overvaluation, the decision of the St. Louis County Board of Equalization, which reduced 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, 2009.The Hearing Officer, having considered all of the competent evidence upon the whole record and the Briefs of the parties, 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.
2.Evidentiary Hearing.The Evidentiary Hearing was held on May 10, 2012, at the St. Louis County Government Center, 41 South Central Avenue, Clayton, Missouri. Transcript was filed with the Commission on 7/11/12 and transmitted to respective Counsels on said date.
3.Submission of Briefs – Objection to Exhibits 1 & 2.Complainant’s Brief in Support of Its Objection to the Admission of Respondent’s Exhibits 1 and 2 (Mr. Boyle Counsel) was received by the Commission on 8/13/12.[1]Respondent’s Response was received by the Commission on 10/1/12.Complainant’s Reply was received by the Commission on 10/15/12.
4.Submission of Briefs – Valuation Evidence.Complainant’s Brief on Valuation Evidence (Mr. Rynard Counsel) was received by the Commission on 8/31/12.Respondent’s Response was received by the Commission on 10/15/12.Complainant’s Reply was received by the Commission on 10/26/12.
5.Subject Property.The subject property is identified by locator number 10O530171.The property is located at 13333 Lakefront Drive, Earth City, Missouri.The property consists of a 12 acre, more or less, tract improved by an 188,279 square foot warehouse/distribution facility.[2]A complete description of the property is provided in Exhibit B.[3]
6.Existing Lease.The subject as of 1/1/09 was under an existing lease by a single tenant that was due to expire on 12/1/09.The rent under the lease of $4.24 per square foot was above market rents for distributions warehouses on 1/1/09.[4]
7.Shell Space.The subject as of 1/1/09 had 12,243 square feet of shell space above the existing office space that would require build-out in order to achieve the full potential gross income.[5]The cost of the build-out was $489,720.Indicated values under both an income and sales comparison approach would require adjustment for this factor, so as to value the property “as is” on 1/1/09.[6]
8.Assessment.The Assessor appraised the property at $10,107,500, a commercial assessed value of $3,234,400.[7]The Board reduced the appraised value to $8,966,700, a commercial assessed value of $2,869,350.[8]
9.Complainant’s Evidence.Complainant submitted the following exhibits:
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Exhibit |
Description |
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A |
|
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B |
Summary Appraisal Report – Douglas A. Zink |
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C |
Written Direct Testimony – Douglas A. Zink |
No objections or rebuttal exhibits were filed to Exhibits A, B and C.The Exhibits were received into evidence.[10]
There was no evidence of new construction and improvement from January 1, 2009, to January 1, 2010, therefore the assessed value for 2009 remains the assessed value for 2010.[11]
Complainant’s evidence was substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2009, to be $6,020,000.See, Complainant Proves Value, infra.
10.Respondent’s Evidence.Respondent submitted the following Exhibits:
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Exhibit |
Description |
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1 |
Appraisal Review Report – Jeffery Hall |
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2 |
Written Direct Testimony – Jeffery Hall |
Complainant filed objections and motion to strike to Exhibits 1 and 2.Respondent made no response to said objections and motion.Hearing Officer overruled the objections and denied the motion to strike by Order dated 4/5/12, which was incorporated by reference into the transcript.[12]
11.Renewal of Objection.At the evidentiary hearing, Mr. Rynard renewed Complainant’s objections to Exhibits 1 and 2.Voir Dire Examination of Mr. Hall was conducted by Mr. Boyle and Mr. Fox relative to compliance by Mr. Hall with USPAP Standards and Complainant’s renewed objections.[13]The renewed objection was taken under advisement to be ruled on in this Decision.[14]Renewed objections overruled.Objections go to the weight and not to the admissibility of the evidence.
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.[15]
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.[16]By statute real and tangible personal property is assessed at set percentages of true value in money.[17]The constitutional mandate is to find the true value in money for 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.[18]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.[19]The presumption is not evidence of value.
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.[20]Upon presentation of the Complainants’ evidence[21] the presumption in this appeal disappeared.The submission of the appraisal report, performed by a state certified real estate appraiser, established prima facie that the Board’s value was in error.[22]The appraisal furthermore established the fair market value that should have been placed on the property.No evidence was received that rebutted the conclusion of value in Complainants’ appraisal.
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.[23]True value in money is defined in terms of value in exchange and not value in use.[24]It is the fair market value of the subject property on the valuation date.[25]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.[26]
Complainant’s expert valued the property under the Standard For Valuation.[27]
Investigation by Hearing Officer
In order to investigate appeals filed with the Commission, the Hearing Officer may inquire of the owner of the property or of any other party to the appeal regarding any matter or issue relevant to the valuation, subclassification or assessment of the property.The Hearing Officer’s decision regarding the assessment or valuation of the property may be based solely upon his inquiry and any evidence presented by the parties, or based solely upon evidence presented by the parties.[28]The decision as to the true value in money of Complainant’s property is based upon the evidence presented by Complainant.
Weight to be Given Evidence
The Hearing Officer is not bound by any single formula, rule or method in determining true value in money, but is free to consider all pertinent facts and estimates and give them such weight as reasonably they may be deemed entitled.The relative weight to be accorded any relevant factor in a particular case is for the Hearing Officer to decide.[29]
The Hearing Officer as the trier of fact may consider the testimony of an expert witness and give it as much weight and credit as he may deem it entitled to when viewed in connection with all other circumstances.The Hearing Officer is not bound by the opinions of experts who testify on the issue of reasonable value, but may believe all or none of the expert’s testimony and accept it in part or reject it in part.[30]In this instance the appraisal and testimony of Complainant’s appraiser provided substantial and persuasive evidence upon which the determination of fair market value could be made.
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.[31]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.[32] Complainant’s appraiser considered each of the three accepted approaches to value.[33]He concluded value with the development of both the sales comparison and income approaches.[34]Valuation under the income approach as developed by Complainant’s appraiser is appropriate for concluding value in this instance.
Cost Approach Not Applicable
For this appraisal problem, the cost approach is not appropriate due to both the high degree of both physical depreciation associated with the age and design of the subject and the economic obsolescence associated with the relevant market conditions.Buyers for the subject property would not rely on the cost approach to determine a purchase price.[35]
Sales Comparison Approach Applicable
The development of the sales comparison approach was appropriate for the present appraisal problem.The market provided sufficient data upon which the appraiser could perform this approach to value.The value concluded provided support for the conclusion of value derived under the income approach.[36]
Income Capitalization Approach Applicable
The utilization of the income approach in the instant case was clearly appropriate.The subject is an income producing property.Therefore, valuation by capitalizing the income stream provided a very strong indicator of value.Primary weight was properly given to this approach in the appraiser’s final analysis.[37]
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.[38]
Complainant’s Expert’s Qualifications
Complainant’s expert witness was Mr. Doug Zink of CB Richard Ellis Valuation & Advisory Services.Mr. Zink is a Member of the Appraisal Institute, MAI Designation, and State Certified General Real Estate Appraiser with the State of Missouri.[39]Mr. Zink possessed the education, training and experience to testify as an expert on the appraisal of the subject real estate before the State Tax Commission of Missouri.[40]His appraisal and testimony were based upon data of the type reasonably relied upon by real estate appraisers in arriving at a conclusion of value.The appraiser performed his appraisal and arrived on his conclusions of value for each approach and the final conclusion of value in accordance with generally accepted and recognized real estate appraisal practice.
Reliable Data
The information which Mr. Zink relied upon in performing his appraisal was of the type reasonably relied upon by experts in the commercial appraisal field in valuing an industrial warehouse property such as the subject.[41]
Complainant Proves Value
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, 2009.[42]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.”[43]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.[44]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.[45]
The Complainant has met its burden of proof.Exhibits B and C, along with the testimony of Mr. Zink, constitute substantial and persuasive evidence to rebut the presumption of correct assessment by the Board and to prove the fair market value of Complainant’s property.
Complainant Proves Value of $6,020,000
Income Approach
The highest and best use for the subject property as improved is as a distribution warehouse.Distribution warehouses are typically investment properties with the income approach normally the best method for valuing the property because market participants primarily analyze such properties based on their income generating potential.This is true of the subject property.The direct capitalization method of the income approach was utilized.
Subject Lease
The subject property was 100% leased by a single tenant on January 1, 2009; however, that lease was due to expire on December 1, 2009.The rent under that lease ($4.24/SF) was above market rents for distribution warehouses on January 1, 2009.A willing buyer looking to purchase the property on January 1, 2009, would not have viewed the actual rent under the existing lease as representative of a stabilized income for the property.They would have concluded that any rent negotiated for the property at the end of the period would have declined from the rent under the existing lease.
Market Rent
To develop a market rent for the subject property, Mr. Zink used four rent comparables for distribution warehouses.The comparable rentals used involved lease dates ranging from November 2007 through August 2008.The rents for these leases ranged from $3.34/SF to $4.15/SF.The comparables were similar to the subject with respect to location, individual tenant size and quality.Adjustments were made to the rentals for various differences in condition that would affect the rent that would be charged for the subject.The adjustments made to the comparable rentals were appropriate in justification and amount.Adjusted rents for the four comparable leases ranged from $3.01/SF to $4.14/SF.Mr. Zink determined that the market rent for the subject, based on this range would be $3.90/SF.Compared to the adjusted rent comparables he used, this amount was higher than three of the four comparables. Rent concessions were also prevalent in the market, most ranging from two to six months, although twelve month rent concessions were also given.Mr. Zink used a rent concession of four months, reducing the market rent to $3.70/SF.This produced a potential rental income for the subject property of $696,632.
Adjustments to Potential Gross Rent
Adjustments to potential gross rental income included a deduction of 8% for vacancy and a credit loss of .5%.Because leases of properties such as the subject are based on a triple net basis in which the tenant reimburses the owner for a pro rata share of the certain expenses, expense reimbursements are added to the potential income stream for the property.Mr. Zink concluded on expense reimbursements of $108,880, based on the property’s actual reimbursements for 2007 and 2008, excluding real estate taxes.These adjustments are generally accepted and reasonable.After applying the vacancy and credit loss and expense reimbursement to the property’s potential income, an effective gross income of $737,044 is derived.
Operating Expenses
Operating expenses were deducted from the effective gross income to produce a net operating income.The operating expenses were based on the actual experience of the property for 2007 and 2008 and three comparables.The final determination of operating expenses excluded real estate taxes.The total operating expenses deducted were $131,474.Net operating income for the subject property was $605,570.
Capitalization Rate
Mr. Zink derived an overall capitalization rate (OAR) of 9% after considering comparable rates, published investor surveys, and the band of investment method.Mr. Zink relied principally on comparable data for capitalization rates.Mr. Zink’s data indicated a range of OAR of 7.01% to 8.54%, with an average of 7.75%.The conclusion of 9% is higher than the actual or average but such increase was justified on the economic downturn occurring between the date of valuation and the dates of the lease dates on the capitalization comparables.Industry experts indicated that 100 to 150 basis points were being added to capitalization rates in the later quarters of 2008 to account for the economic downturn and tighter credit.Mr. Zink’s adjustment of 125 basis points above the average of 7.75% was consistent with what was occurring in the market on January 1, 2009.The 9% OAR was also supported by the published investor surveys, which indicated OARs between 6.73% and 9.4%, with the latter representing a survey of rates for properties in the St. Louis area.The band of investment method likewise supported an OAR of 9%.
The cap rate was loaded for real estate taxes, producing an adjusted cap rate of 9.30% (adjusted).Mr. Zink’s method loaded only that portion of the real estate taxes attributable to the portion of taxes that would not be reimbursed to the owner under a triple net lease
Indicated Value – Income Approach
Applying Mr. Zink’s adjusted cap rate to the net operating income indicates a value by the income approach of $6,020,000, rounded.Mr. Zink’s income approach reflects conditions in the market on January 1, 2009, and considers all of the sources that would be considered by the market in valuing a property.In addition, the adjustments and conclusions he made were supported by conditions in the market and were appropriate and reasonable.
Sales Comparison Approach
Mr. Zink also performed a comparable sales approach to value for the subject.He used four comparables of similar distribution warehouse properties with sales dates between March 2008 and August 2008.The value indicated by the sales comparison approach was $6,110,000.The adjustments made to the sales were both appropriate and reasonable under the circumstances.
Reconciliation of Values
Because properties such as the subject are typically bought for investment purposes, the income approach is given greater weight in assigning a value.Mr. Zink’s final reconciliation of value recognizes the greater weight given to the income approach.The value derived by the sales comparison approach supports the final opinion of value as established under the income approach.
Conclusion
Complainant’s evidence establishes the true value in money as of January 1, 2009 for the subject property to be $6,020,000, a commercial assessed value of $1,926,400.
Respondent’s Evidence Not Persuasive
Respondent submitted an appraisal review for the property.A review appraiser examines the reports of other appraisers to ascertain whether their conclusions are consistent with the data reported and with other generally known information In other words, the reviewer makes a thorough and detailed analysis of appraisals submitted to them for review.In this case, the review appraiser is reviewing the “work product” of the computer-assisted mass appraisal as set out in the property record card.
In performing his review, Mr. Hall reviewed the income approach performed by the mass appraisal system.He applied the actual income of the subject property for the three years prior to the valuation date.The average of these three years was labeled as “stabilized income.”
The utilization of the actual income of a given property is certainly appropriate in those circumstances where an existing lease or leases have a sufficient remaining term to provide what is in fact a stabilized income.In this case the existing leases were near expiration.Further, the market data indicated that it existing rates were higher than market.Accordingly, the Hall review of the property record card’s income value significantly overstated the total income a prospective investor could realize from the property.[46]
Although the Assessor’s property record card on the subject did not have a value developed by a sales comparison analysis, Mr. Hall elected in reviewing the PRC, to develop such an analysis.[47]Mr. Hall used four sales which occurred between February 2008 and July 2008.[48]No adjustments to the unit prices for the sales were made.He concluded on a $48 per square foot value based on his conclusion that his comparable sale number 1 was most similar to the subject.Comp 1 sold for $48/SF unadjusted.This was higher than the average or the median of the four sales.
All that Mr. Hall did in developing his sales comparison methodology was to provide information for four sales and put the basic information as to usual factors to be considered in a summary chart.There was no detailed analysis of each property as compared to the subject to arrive at the need for adjusting the per square foot sale prices.There was no recognition of and adjusting for the shell space.
The Respondent’ s evidence of a review appraisal of a property record card with a computer-assisted mass appraisal report does not rise to the level of substantial and persuasive evidence.
ORDER
The assessed valuation for the subject property as determined 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 years 2009 and 2010 is set at $1,926,400.
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. [49]
Disputed Taxes
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 November 30, 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 30th day of November, 2012, to:Thomas Rynard, 308 E. High Street, Suite 301, Jefferson City, MO 65101, Attorney for Complainant; Robert Fox, Associate County Counselor, Attorney for Respondent, 41 South Central Avenue, Clayton, MO 63105; Jake Zimmerman, Assessor, 41 South Central Avenue, Clayton, MO 63105; Eugene Leung, Director of Revenue, County Government Center, 41 South Central Avenue, Clayton, MO 63105.
___________________________
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
[1] The Appendix to said Brief contained the following documents:USPAP 2010 – 2011 Cover Pages; Competency Rule; Standard 1; Standard 3; Standard 6; Advisory Opinion Cover Pages; Advisory Opinion 2: Advisory Opinion 11; Advisory Opinion 12; Advisory Opinion 18; Advisory Opinion 32; USPAP FAQ Cover Pages; and FAQ 119.
[3] See, pp. ii – vi (photographs); pp. vii – viii (Summary of Salient Facts); pp. 32 – 32 (Site Analysis); pp. 34 – 36 (Improvements Analysis)
[7] BOE Decision Letter, dated 9/17/09;Commercial property is assessed at 32% of its appraised value (true value in money, fair market value) – Section 137.115.5, RSMo
[18] 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)
[19] United Missouri Bank of Kansas City v. March, 650 S.W.2d 678, 680-81 (Mo. App. 1983), citing to State ex rel. Christian v. Lawry, 405 S.W.2d 729, 730 (Mo. App. 1966) and cases therein cited.
[20] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959)
[22] The burden of rebutting the Board’s correct assessment, of course, is discharged by simply establishing the fair market value of the property as of the valuation date, since once fair market value is established it, a fortiori (By even greater force of logic, or even more so – Blacks Law Dictionary, Seventh Edition, p. 61), proves that the Board’s value was in error.
[23] 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).
[24] 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).
[26] 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.
[27] Exhibit B: Purpose of the Appraisal, pp. 1-2; Addendum A-Glossary of Terms: market value; Exhibit C: Q & A 27 – 29
[29] St. Louis County v. Security Bonhomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977); St. Louis County v. STC, 515 S.W.2d 446, 450 (Mo. 1974); Chicago, Burlington & Quincy Railroad Company v. STC, 436 S.W.2d 650 (Mo. 1968).
[30] St. Louis County v. Boatmen’s Trust Co., 857 S.W.2d 453, 457 (Mo. App. E.D. 1993); Vincent by Vincent v. Johnson, 833 S.W.2d 859, 865 (Mo. 1992); Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. 1991); Curnow v. Sloan, 625 S.W.2d 605, 607 (Mo. banc 1981).
[31] 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).
[32] 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).
[34] Exhibit B: Sales Comparison Approach, pp. 39 – 44; Income Capitalization Approach, pp. 45 – 55; Reconciliation of Value, p. 56; Exhibit C: Q & A 33, 43 – 71; Cover Letter, dated 10/19/11
[37] Exhibit B: Income Capitalization Approach, pp. 45 – 55; Reconciliation of Value, p. 56; Exhibit C: Q & A 44 – 61
[38] Section 490.065, RSMo; State Board of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. SC. 2004); Courtroom Handbook on Missouri Evidence, Wm. A. Schroeder, Sections 702-505, pp. 325-350; Wulfing v. Kansas City Southern Industries, Inc., 842 S.W.2d 133 (Mo. App. E.D. 1992).
[43] 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).
[44] See, Cupples-Hesse, supra.
Substantial and persuasive evidence is not an extremely high standard of evidentiary proof.It is the lowest of the three standards for evidence (substantial & persuasive, clear and convincing, and beyond a reasonable doubt).It requires a small amount of evidence to cross the threshold to rebut the presumption of correct assessment by the Board.The definitions, relevant to substantial evidence, do not support a position that substantial and persuasive evidence is an extremely or very high standard.
“Substantial evidence: Evidence that a reasonable mind would accept as adequate to support a conclusion; evidence beyond a scintilla.”Black’s Law Dictionary, Seventh Edition, p. 580.
The word scintilla is defined as “1. a spark,2. a particle; the least trace.” Webster’s New World Dictionary, Second College Edition.Black’s definition at 1347 is “A spark or trace <the standard is that there must be more than a scintilla of evidence>.”There must be more than a spark or trace for evidence to have attained the standard of substantial.Once there is something more than a spark or trace the evidence has reached the level of substantial.Substantial evidence and the term preponderance of the evidence are essentially the same.“Preponderance of the evidence.The greater weight of the evidence; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”Black’s at 1201.Substantial evidence is that a reasonable mind would accept as adequate to support the conclusion.Preponderance is sufficient to incline a fair and impartial mind to one side of the issue rather than the other, i.e. support the proposed conclusion.
[46] The Hall total income conclusion, when compared to the Zink income approach (based upon market rental data as of 1/1/09) overstated the effective gross income by more than $500,000.$1,237,870 (Hall) – $737,044 (Zink) = $500,826
[48] Mr. Hall used 3 of the sales which Mr. Zink also used in his sales comparison approach.The fact that he selected 3 of 4 properties that Complainant’s appraiser utilized is irrelevant in determining whether the value concluded under the Hall sales comparison methodology should be given any probative weight.