STATE TAX COMMISSION OF MISSOURI
| RELAX INVESTMENTS INC., | ) | |
| Complainant, | ) | Appeal No. 20-44542 |
| ) | Parcel No. 17-116-00-11-004.01 01 | |
| ) | ||
| v. | ) | |
| ) | ||
| KENNETH MOHR, ASSESSOR, | ) | |
| BOONE COUNTY, MISSOURI, | ) | |
| Respondent. | ) |
DECISION AND ORDER
Relax Investments Inc., (Complainant) appeals the Boone County Board of Equalization’s (BOE) decision finding the true value in money (TVM) of the subject property on January 1, 2019, was $3,527,580. Complainant asserts the TVM was $3,428,232. Respondent asserts the TVM was $3,550,000.
The BOE decision is affirmed. The TVM of the subject property on January 1, 2019, was $3,527,580.
An evidentiary hearing was conducted via WebEx on October 28, 2021. Complainant and Respondent filed post-hearing briefs. Complainant filed a reply brief. Complainant is represented by Jerome Wallach. Respondent is represented by Jennifer Rodewald and Charles Dykhouse.
Background
Complainant asserts the subject property, a franchise-affiliated hotel, is overvalued. The net income generated by a franchised hotel property is in part a function of the franchise affiliation and the personal property required to operate a hotel. It follows that determining the value of the real estate requires separating the value of franchise affiliations and the personal property from the real property value.
To accomplish this, the State Tax Commission and most state courts utilize the “Rushmore Method.”[1] The Rushmore Method removes business value by deducting management and franchise fees from the hotel’s net income. It removes personal property value by deducting a reserve for replacement along with the contributory value of the in-place personal property.
In post-hearing briefing, Complainant concedes its appraiser did not follow the Rushmore Method and, instead, used “an alternate but accepted approach to value.” (Compl. Br. at 1) Specifically, Complainant’s appraiser deducted franchise and management fees per the Rushmore Method and then used the “business enterprise approach” (BEA) to make an additional “business enterprise value” (BEV) deduction. The additional BEV deduction accounts for the difference between “branded” and “non-branded” hotels, and thus deducts a factor previously accounted for in the Rushmore Method through the deduction of franchise fees.
Complainant’s appraiser acknowledged the BEA approach is “substantially more aggressive in attributing value to the personal property” than the Rushmore Method. (Ex. B at 47) Complainant states that “for purposes of this proceeding,” and “in light of repeated decisions of the Commission utilizing Rushmore[,]” Complainant “accept[s]” Respondent’s analysis “consistent with Rushmore, but applies the market derived capitalization rate of Complainant’s expert.” (Compl Br. at 1- 2) Thus, the remaining factual dispute centers on the appropriate capitalization rate.
FINDINGS OF FACT
- The Subject Property. The subject property consists of approximately 3.78 acres improved with a 45,758 square-foot, three-story hotel building. (Ex. 2 at 25) The building was constructed in 2008. (Id.) The hotel has 91 rooms, (Id. at 31), and is operated as a Fairfield Inn & Suites. (Id. at 6, 59) The subject property is located at 1115 Woodland Springs Court in Columbia, Missouri. (Id. at 12) As of January 1, 2019, the subject property was being renovated, with approximately $700,000 in renovations slated for completion after the valuation date. (Id. at 32)
- Assessment and Valuation. The BOE determined “2020 Board of Equalization Value” appraised and assessed values of $3,527,580 and $1,128,825, respectively.
- Complainant’s Evidence. Complainant introduced Exhibits A and B. Exhibit A is the written direct testimony (WDT) of Reagan Schwarzlose, MAI. Exhibit B is Schwarzlose’s appraisal report.
Schwarzlose concluded the highest and best use of the subject property was “continued Hotel/Motel Low rise (1-3 stories) use.” (Ex. B at 45) Schwarzlose used the cost approach to estimate a deduction for the subject’s personal property consisting of furniture, trade fixtures, and equipment, referred to as “FF&E.” (Id. at 49) Schwarzlose used the sales comparison and income approaches, with emphasis on the income approach to conclude the fair market value of the subject property as of January 1, 2019, was $2,980,000. (Id. at 73)
Schwarzlose’s concluded value is based on an initial “going concern” value estimate of $4,180,000 based on an NOI estimate that included deductions for franchise and management fees. (Ex. B at 62, 65) Schwarzlose then used the BEA method to make an additional BEV deduction. (Id. at 66-72) Schwarzlose’s BEV deduction was based in part on averaging the “net decrease in revenue for a branded versus non-branded hotel, and the deduction for a net gain for a branded hotel in the local market as supported by rent comparables[.]” (Id. at 71)
In post-hearing briefing, Complainant acknowledges Schwarzlose did not follow the Rushmore Method and asserts it accepts “the Keller analysis, consistent with Rushmore, but applies the market derived capitalization rate of Complainant’s expert.”[2] (Compl. Br. at 2) Complainant’s calculation of its proposed value is set forth verbatim:
Net operating income: $ 606,783
Complainant’s overall capitalization rate 11.23
Value before adjustments $ 5,403,232
Keller adjustments $ 1,975,000-
Concluded value $ 3,428,232
(Compl. Br. at 2)
Complainant’s brief asserts a capitalization rate of 11.23%. Schwarzlose’s appraisal report concluded the loaded capitalization rate is 11.73%. (Ex. B at 64-65, 71-72) Schwarzlose’s estimated capitalization rate of 11.73% is based solely on market surveys of various types of hotels operating under several franchises. (Ex. B at 63-64) The 11.23% capitalization rate asserted in Complainant’s post-hearing brief is not used by either appraiser.
- Respondent’s Evidence. Respondent introduced Exhibits 1 through 4. Each exhibit was admitted into evidence. Respondent’s exhibits are summarized as follows:
| Exhibit 1 | WDT of Matt Speer, MAI |
| Exhibit 2 | Appraisal Report prepared by Matt Speer and Daniel Craig. |
| Exhibit 3 | WDT of Kenneth Mohr, Respondent. Respondent testified the only 2019 business personal property tax declaration from the subject property was filed by the lessor, Cisco Systems Capital Corp. |
| Exhibit 4 | Cisco Systems Capital Corp.
Business Personal Property Declaration |
Like Schwarzlose, Respondent’s appraiser, Speer, concluded the highest and best use of the subject property was for a hotel. Like Schwarzlose, Speer used the sales comparison approach but emphasized the income approach. Unlike Schwarzlose, Speer followed the Rushmore Method by deducting franchise and management fees from the NOI without an additional BEV deduction.
Speer determined market-based income and expense estimates – including management and franchise fee expenses – to conclude the subject property’s NOI was $606,783. (Ex. 2 at 80) Speer capitalized the NOI with a 10.98% rate derived from the eight comparable sales used in the sales comparison approach, with support from surveyed rates. (Id. at 80-82) Speer excluded the highest and lowest rates from the comparable sales, resulting in rates ranging from 8.07% to 9.19%. (Id. at 81) Speer concluded this range of rates supported an 8.50% capitalization rate. Speer added the 2.48% effective tax rate to calculate the loaded capitalization rate of 10.98%. (Id.)
Speer divided the NOI of $606,783 by the 10.98% capitalization rate to determine a capitalized value of $5,526,257. Speer deducted the FF&E value ($725,000), remaining costs of ongoing renovation ($700,000), and lease-up costs to achieve market occupancy ($550,000) to estimate the fair market value of the subject property pursuant to the Rushmore Method was $3,551,257, rounded to $3,550,000. (Ex. 2. at 82) Based on his Rushmore Method income approach analysis, Speer concluded the fair market value of the subject property was $3,550,000 as of January 1, 2019. (Id. at 84) Speer’s estimated value is $22,420 higher than the BOE value of $3,527,580, a difference of only 0.636% (22,420/3,527,580 = 0.00636).
CONCLUSIONS OF LAW
- Assessment and Valuation. Commercial real property is assessed at 32% of its TVM as of January 1 of each odd-numbered year. Section 137.115.5(1)(c). “True value in money is the fair market value of the property on the valuation date, and is a function of its highest and best use, which is the use of the property which will produce the greatest return in the reasonably near future.” Snider v. Casino Aztar/Aztar Mo. Gaming Corp., 156 S.W.3d 341, 346 (Mo. banc 2005) (internal quotation omitted). The fair market value is “the price which the property would bring from a willing buyer when offered for sale by a willing seller.” Mo. Baptist Children’s Home v. State Tax Comm’n, 867 S.W.2d 510, 512 (Mo. banc 1993). “True value in money is defined in terms of value in exchange not value in use.” Tibbs v. Poplar Bluff Assocs. I, L.P., 599 S.W.3d 1, 7 (Mo. App. S.D. 2020) (internal quotation omitted). “Determining the true value in money is an issue of fact for the STC.” Cohen v. Bushmeyer, 251 S.W.3d 345, 348 (Mo. App. E.D. 2008).
“For purposes of levying property taxes, the value of real property is typically determined using one or more of three generally accepted approaches.” Snider, 156 S.W.3d at 346. The three generally accepted approaches are the cost approach, the income approach, and the comparable sales approach. Id. at 346-48.
- Evidence. “Although technical rules of evidence are not controlling in administrative hearings, fundamental rules of evidence are applicable.” Mo. Church of Scientology v. State Tax Comm’n, 560 S.W.2d 837, 839 (Mo. banc 1977). The hearing officer is the finder of fact and determines the credibility and weight of the evidence. Kelly v. Mo. Dep’t of Soc. Servs., Family Support Div., 456 S.W.3d 107, 111 (Mo. App. W.D. 2015).
In pertinent part, Section 138.060.1 provides:
“[a]t any hearing before the state tax commission or a court of competent jurisdiction of an appeal of assessment from a first class charter county or a city not within a county, the assessor shall not advocate nor present evidence advocating a valuation higher than that value finally determined by the assessor or the value determined by the board of equalization, whichever is higher, for that assessment period.”
Boone County is not a first-class charter county and, therefore, is not prohibited from introducing evidence and advocating for a valuation higher than the BOE.
- Burden of Proof. The taxpayer bears the burden of proof and must show by a preponderance of the evidence that the property was misclassified or overvalued. Westwood P’ship v. Gogarty, 103 S.W.3d 152, 161 (Mo. App. E.D. 2003). The BOE’s valuation is presumptively correct. Tibbs, 599 S.W.3d at 7. The “taxpayer may rebut this presumption by presenting substantial and persuasive evidence that the valuation is erroneous.” Id. (internal quotation omitted). The taxpayer also must prove “the value that should have been placed on the property.” Id. An assessor advocating a value different than that set by the BOE must also produce substantial and persuasive evidence of his or her proposed value. See Drury Chesterfield, Inc. v. Muehlheausler, 347 S.W.3d 107, 112 (Mo. App. E.D. 2011) (noting “[t]he burden of overcoming [the BOE] presumption lies with the party challenging the tax assessment”).
“Substantial evidence is that evidence which, if true, has probative force upon the issues, and from which the trier of fact can reasonably decide the case on the fact issues.” Savage v. State Tax Comm’n, 722 S.W.2d 72, 77 (Mo. banc 1986) (internal quotation omitted). Evidence is persuasive when it has “sufficient weight and probative value to convince the trier of fact.” Daly v. P.D. George Co., 77 S.W.3d 645, 651 (Mo. App. E.D. 2002); see also White v. Dir. of Revenue, 321 S.W.3d 298, 305 (Mo. banc 2010) (noting the burden of persuasion is the “party’s duty to convince the fact-finder to view the facts in a way that favors that party”).
- Neither Party Produced Substantial and Persuasive Evidence of Overvaluation.
Complainant accepts Respondent’s NOI but asserts the STC should use a capitalization rate of 11.23% rather than Respondent’s proposed 10.98% capitalization rate, which is based on local sales of comparable hotel properties.
“Deriving capitalization rates from comparable sales is the preferred technique when sufficient information about sales of similar, competitive properties is available.” Appraisal Institute, The Appraisal of Real Estate (14th ed. 2013) 493; see also Snider, 156 S.W.3d at 347 (noting the appropriate capitalization rate is that which “can reasonably be estimated from existing market conditions”). The capitalization rate can also be estimated using the band of investment method, the debt coverage ratio analysis, or investor surveys. The Appraisal of Real Estate at 495–99. Investor surveys, however, “are generally used as support rather than as primary evidence of a capitalization rate.” Id. at 499.
Complainant did not utilize the preferred technique of deriving a market-based capitalization rate from comparable sales. Nor did Complainant utilize the band of investment method or the debt coverage ratio method. While Schwarzlose estimated an 11.73% capitalization rate based exclusively on a regional survey listing the reported capitalization rates for types of hotels, the 11.23% rate used in Complainant’s post-hearing brief is a figure not used by either appraiser.
Respondent’s capitalization rate is based on actual market data based on comparable sales. Respondent’s 10.98% capitalization rate is supported by market-specific data derived from verified comparable sales and therefore is a more reliable estimate of the market-based capitalization rate for the subject property.
Complainant’s relatively unpersuasive capitalization rate undermines its value estimate based on Respondent’s estimated NOI. Because Complainant accepts Respondent’s estimated NOI of $606,783 but relies on a less persuasive capitalization rate, Complainant did not produce substantial and persuasive evidence showing “the value that should have been placed on the property.” Tibbs, 599 S.W.3d at 7. Complainant therefore did not produce substantial and persuasive evidence of overvaluation.
Respondent asserts the STC should set aside the BOE value of $3,527,580 and increase the TVM to $3,550,000, consistent with Speer’s estimated value. Respondent’s proposed value is only 0.636% higher than the BOE value. There is no persuasive basis in the record for concluding the less than 1% difference between the Speer’s estimated value and the BOE value reflects anything other than the inherent variability attending any retrospective estimate of the TVM of a complex property. The record does not support the fine line Respondent seeks to draw.
Speer repeatedly makes the type of reasonable approximations underlying most appraisals. Speer’s income estimates are, by necessity, based on reasonable approximations from a range of market-based data. For instance, Speer “estimated” 60% occupancy based on the occupancy range exhibited by peer properties and the need for additional renovation. (Ex. 2 at 69) Consistent with standard appraisal practice, Speer “estimated” the various market-based expenses and reserves for replacement. (Id. at 72-74) Likewise, Speer estimated $550,000 in lease-up costs and $700,000 in remaining renovation, with both figures rounded from the actual calculations. (Id. at 82) Speer estimated a capitalization rate from a range based on comparable sales, with support from surveyed rates. (Id. at 80-81)
As the record indicates, Speer’s estimates are inferences from a range of market data. See Hermel, Inc. v. State Tax Comm’n, 564 S.W.2d 888, 896 (Mo. banc 1978) (noting “the true value which the commission must find is at best a mere estimate[.]”) (Internal quotation omitted). A minor adjustment in any of Speer estimated income, expense, or capitalization rate estimates would more than account for the difference in the valuation estimates of the BOE and Respondent. Respondent’s evidence does not persuasively demonstrate the BOE value is incorrect.
CONCLUSION AND ORDER
The BOE decision is affirmed. The TVM of the subject property on January 1, 2019, was $3,527,580. The TVM set by this decision and order applies only to the even-numbered year (2020) in this assessment cycle. 12 CSR 30-3.015.
Application for Review
A party may file an application for review of this decision within 30 days of the mailing date set forth in the certificate of service for this decision. The application “shall contain specific detailed grounds upon which it is claimed the decision is erroneous.” Section 138.432. The application must be in writing, and may be mailed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, MO 65102-0146, or emailed to Legal@stc.mo.gov. A copy of the application must be sent to each person 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. Section 138.432.
Disputed Taxes
The Collector of the Boone County, and 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 the disputed taxes have been disbursed pursuant to a court order under the provisions of section 139.031.
SO ORDERED January 28, 2022.
Eric S. Peterson
Senior Hearing Officer
State Tax Commission
Certificate of Service
I hereby certify that a copy of the foregoing has been electronically mailed and/or sent by U.S. Mail on January 28, 2022, to: Complainant(s) and/or Counsel for Complainant(s), the County Assessor and/or Counsel for Respondent and County Collector.
Elaina Mejia
Legal Coordinator
Contact Information for State Tax Commission:
Missouri State Tax Commission
421 East Dunklin Street
P.O. Box 146
Jefferson City, MO 65102-0146
573-751-2414
Fax 573-751-1341
[1] See Yogijikrupa Hospitality-C LLC, v. Assessor, Taney County, Mo., Appeal No. 19-89506, 2021 WL 4977443, at *5 (Mo. St. Tax Comm’n 2021) (noting “[t]he STC has long recognized the Rushmore Method under the income approach for the valuation of hotel properties”); Glenpointe Assoc. et al. v. Township of Teaneck, 31 N.J. Tax 596, 645 (2020) (holding the Rushmore method is generally used to value hotels); Wisconsin & Milwaukee Hotel, LLC v. City of Milwaukee, 936 N.W.2d 403 (Wis. App. 2019) (holding the “Rushmore approach to value hotels” complied with state law); CHH Cap. Hotel Partners, LP v. D.C., 152 A.3d 591, 597 (D.C. 2017) (affirming a judgement concluding the Rushmore method is a “well-established and broadly accepted” method “well-conceived to yield a fair and accurate estimate of market value” and “fully supported by the evidence”); RRI Acquisition Co. v. Supervisor of Assessments of Howard Cty., 2006 WL 925212, at *5 (Md. Tax Feb. 10, 2006) (applying Rushmore and holding a deduction for return on FF & E from income as well as a deduction of the invested capital from value is an impermissible duplication under standard appraisal practice); Marriott Corp. v. Bd. of Cty. Comm’rs of Johnson Cty., 972 P.2d 793, 796 (Kan. App. 1999) (holding the Rushmore method was the appropriate method to value a hotel and noting it “has been accepted in a number of litigated matters and rejected in none that have been brought to our attention); In re J.F.K. Acquisitions Group, 166 B.R. 207, 209 (Bankr.E.D.N.Y.1994) (utilizing the Rushmore method and noting the appraiser who developed the method is an “eminent expert in the field of hotel appraisers”).
[2] Complainant refers to Respondent’s appraiser as “Keller,” in reference to his affiliation with the Keller, Craig & Associates appraisal firm.