Richard Cox v. Brooks (SLCO)

 

RICHARD COX,)

)

Complainant,)

)

v.) Appeal(s) Number 09-10645 & 09-10646

)

MICHAEL BROOKS, ACTING ASSESSOR,)

ST. LOUIS COUNTY, MISSOURI,)

)

Respondent.)

 

DECISION AND ORDER

 

HOLDING

 

Decisions of the St. Louis County Board of Equalization sustaining the assessments made by the Assessor are AFFIRMED.

True value in money for the subject property in Appeal 09-10645 for tax years 2009 and 2010 is set at $102,500, residential assessed value of $19,480.

True value in money for the subject property in Appeal 09-10646 for tax years 2009 and 2010 is set at $148,100, residential assessed value of $28,140.

Complainant appeared pro se.Respondent appeared by Associate County Counselor Paula J. Lemerman

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

ISSUE

Complainant appeals, on the ground of overvaluation, the decisions of the St. Louis County Board of Equalization, which sustained the valuations of the subject properties.The Commission takes these appeals to determine the true value in money for the subject properties on January 1, 2009.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 these appeals is proper.Complainant timely appealed to the State Tax Commission from the decisions of the St. Louis County Board of Equalization.

2.Submission on Documents.At the Prehearing Conference[1] Complainant was informed that since he was appealing on the same grounds as in previous years that if he was agreeable he would be permitted to submit his case in chief on documents and the Hearing Officer would enter a Decision on whether the Complainant had made his prima facie case. Complainant so agreed.[2]Counsel for Respondent was informed at the Prehearing Conference that the right of Respondent to submit exhibits was maintained and not waived, pending a determination of whether Complainant’s evidence would constitute a prima facie case on the issue of the true value in money in each appeal.On April 15, 2010, the Commission received the Complainant’s documents in both appeals.

3.Assessments.The property in Appeal 09-10645 was appraised by the Assessor at $102,500, a residential assessed value of $19,480.The Board of Equalization sustained that assessment.[3]The property in Appeal 09-10646 was appraised by the Assessor at $148,100, a residential assessed value of $28,140.The Board of Equalization sustained that assessment.[4]

4.Assessments in 2007-08 Cycle.The property in Appeal 09-10645 was valued at $108,000 by Order of the Commission affirming the value set by the Assessor and sustained by the Board of Equalization.[5]Therefore, it was actually reduced in value by $5,500 for the 2009-10 valuation from the 2007-08 valuation.The property in Appeal 09-10646 was valued at $173,300 by Order of the Commission affirming the value set by the Assessor and sustained by the Board of Equalization.[6]Therefore, it was actually reduced in value by $25,200 for the 2009-10 valuation from the 2007-08 valuation.

5.Subject Property – Appeal 09-10645.The subject property is located at 3847 Fee Fee Road, Bridgeton, Missouri.The property is identified by locator number 12M420670.The property consists of 7,500 square foot lot improved by a one-story brick old style bungalow, single-family structure of average quality construction.The original part of the house was built in 1940.An addition of 1,254 square feet was added after World War II for a total gross living area of 2,066 square feet.The house appears to be in average condition.The residence has a total of six or nine rooms, which includes three bedrooms and either 2 full or two full and one half baths.There is a reported partial basement or cellar.[7]

6.Subject Property – Appeal 09-10646.The subject property is located at 11037 Easy Street, St. Ann, Missouri.The property is identified by parcel number 13M210461.The property consists of approximate 21,840 square foot lot improved by a one-story brick ranch style, single-family structure of average quality construction.The house appears to be in average condition.The residence has a total of six rooms, which includes three bedrooms, and 2 full baths.There is a full unfinished basement and an attached two-car garage.[8]

7.Complainant’s Evidence.Complainant submitted the documents listed below, which have been marked for purposes of identification by the Hearing Officer.The exhibits are applicable to both appeals.There was no evidence of new construction and improvement for either property from January 1, 2009, to January 1, 2010, therefore the assessed values for 2009 remain the assessed values for 2010.[9]

 

 

Complainant’s evidence was not 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 $51,413.44, as proposed for the property in Appeal No. 09-10645.[10]

Complainant’s evidence was not 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 $102,612.08, as proposed for the property in Appeal No. 09-10646.

8.Respondent’s Evidence.The Respondent was not required to file any exhibits pending a determination of whether Complainant had made a prima facie case on the issue of the true value in money of each property.In the event that the Commission upon review or a court upon judicial review determines that Complainant’s evidence constitutes a prima facie case to establish the true value in money of each property, upon remand to the Commission, the Hearing Officer will issue his order to permit Respondent to file exhibits and set the appeal for an evidentiary hearing to permit cross-examination of the witnesses.

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.[11]

Official and Judicial Notice

Agencies shall take official notice of all matters of which the courts take judicial notice.[12]

Courts will take judicial notice of their own records in the same cases.[13]In addition, courts may take judicial notice of records in earlier cases when justice requires[14] or when it is necessary for a full understanding of the instant appeal.[15] Courts may take judicial notice of their own records in prior proceedings involving the same parties and basically the same facts.[16]

The Hearing Officer takes official notice that the property in Appeal 09-10645 was the subject of appeals in 2006[17] and 2007.[18]The Hearing Officer takes official notice that the property in Appeal 09-10646 was the subject of appeals in 2006[19] and 2007.[20]In each of the previous appeals, the theory and methodology advanced by the Complainant was the same as is now put forth in these two appeals.The Commission in each instance affirmed the Hearing Officer’s Decisions and rejected the methodology submitted by Complainant.

Presumptions In Appeals

There is a presumption of validity, good faith and correctness of assessment by the CountyBoardof Equalization.[21]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.[22]The taxpayer failed to present substantial and persuasive evidence to establish the Board’s valuation was erroneous.In point of fact, Mr. Cox presented no evidence to establish what a willing buyer and seller would have agreed to as the purchase price for either of the properties under appeal as of January 1, 2009.Accordingly, the presumption of correct assessment by the Board was not rebutted in either appeal.

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]

 

The Standard for Valuation mandates that a taxpayer present evidence that is relevant to the standard.In other words, in the present appeals, the Complainant should have provided evidence to establish what properties similar to the properties under appeal have been selling for at a time relevant to January 1, 2009, adjusted for differences between the sale properties and the property being valued.This Mr. Cox completely failed to do.None of the documents presented by the taxpayer provide any information that is material to the Standard for Valuation.

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.[27]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.[28] Mr. Cox presented no evidence that established a value for either property based upon a recognized appraisal methodology for ad valorem tax valuations.

The method to arrive at an opinion of value used by Mr. Cox was not an approach to value accepted in appeals before the Commission.Taxpayers who present their own theories and self-contrived methods, outside of those recognized by the Commission and the courts, to support their opinion of fair market value present nothing that is relevant on the issue the Hearing Officer must decide.It does not matter if the calculations for the proposed methodology are correct.The underlying premise supporting the method is fatally flawed.Mr. Cox did not present a method for valuing his property.He made a series of calculations regarding the consumer price index as applied to the amount of taxes assessed against his two properties since 2002.In effect, the taxpayer is challenging the amount of taxes levied against his property.He did not directly and properly challenge the value set by the Board of Equalization for either of the properties.

Complainant’s Burden of Proof

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.[29]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.”[30]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[31]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.[32]

The owner of property is generally held competent to testify to its reasonable market value.[33]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[34]In these appeals the owner’s opinion of value is derived from his calculation of what he honestly, but erroneously believes, is a limit imposed by section 137.073 on the amount of taxes that can be levied against his properties.This will be addressed in detail below.

The bottom line is that the opinions of value presented for each of the properties by Mr. Cox are not based upon proper elements or a proper foundation.Therefore the owner’s opinions of value have no probative value whatsoever.More specifically, none of the documents submitted by Mr. Cox provide any evidence that the opinions of value presented are in fact indicative of the market value of the subject properties on January 1, 2009.There is nothing in Complainant’s exhibits that provide data from the market to address what a willing buyer and seller would have agreed to as the purchase price for either of the properties under appeal on the valuation date.

Complainant’s Exhibits

The various exhibits submitted by Mr. Cox to establish his prima facie case that the property in Appeal 09-10645 should be valued at $51,413.33 and the property in Appeal 09-10646 should be valued at $102,612.08 lack any relevance to the sole issue in these appeals, i.e. what a willing buyer and seller would agree to as the purchase price of the subject properties on January 1, 2009.Irrelevant documents cannot meet the standard of being substantial and persuasive evidence.Each of the Exhibits will be discussed in detail below as to their lack of relevance and failure to present a substantial and persuasive basis to establish true value in money.

Exhibit A – Cover Page

Mr. Cox expressed his gratitude for being permitted to submit his appeal on documents with a narrative statement.His cover page then sets forth his opinion of value for each property.The only portion of this document that has relevance is the owner’s statement of his opinion of value for each property.The owner’s opinion is relevant and admissible.However, the rest of the document that demonstrates how that value was determined establishes that no probative weight can be given to the opinion of Mr. Cox.

For the property in Appeal 09-10645, Mr. Cox presents his value of $51,413.44.[35]He arrives at this amount based upon his conclusion that there is a limit to the amount of taxes that can be assessed against this property.He has calculated that amount to be $738.04.[36]Mr. Cox asserts, without any substantiation that the tax levy per $100 of assessed value for 2009 is $7.5553.It will be assumed, but not accepted as fact, that this is case.

Although the detailed calculation is not set forth by which Mr. Cox concluded his value of $51,413.44, the formula, working from his Current Tax Limit amount of $738.04 would be:

Current Tax Limit ÷ Tax Levy = Taxable Units x Unit of Taxation ÷ Residential Assessment Ratio = Value

Or to put it in real figures for Appeal 09-10645:

$738.04 ÷ 7.5553 = 97.685 x $100 = $9,768.50 ÷ .19 = $51,413.16

While the mathematical calculations of Mr. Cox are very close to the above figures, the correctness of the math is irrelevant.What is critical is that this is not a method of determining true value in money that has ever been recognized by the Commission or by a court in this state.The information provided in Exhibit A has no relevancy to the true value in money of either of the subject properties.

Exhibit B – Narrative Statement

The Narrative Statement[37] provided by Mr. Cox sets forth his assertion that section 137.073 RSMo provides the mechanism for fixing value on his properties and he reiterates his conclusion of value for the property in Appeal 09-10645 to be $51,413.44 and the value for the property in Appeal 09-10646 to be $102,612.08.Mr. Cox’s testimony provides no market derived data to establish either of the asserted values.The taxpayer in his narrative requests that he be credited for penalties with interest of overpaid taxes for Tax years 2002 thru 2009.Complainant provides no statutory basis for the Commission to issue any such order crediting the taxpayer for overpaid taxes.Indeed, there is no statute which vests such authority in the Commission.It lies beyond the jurisdiction of the Commission to consider such a request.Complainant’s request to be credited penalties, with interest for alleged overpaid taxes for tax years 2002 through 2009 is denied as being outside the jurisdiction of the Commission to order.The information provided in Exhibit A has no relevancy to the true value in money of either of the subject properties.

Exhibit C – Tax Calculation Chart

Mr. Cox presents as his Exhibit C a chart on which he has calculated, based upon the annual consumer price index (CPI), what he believes to be, based upon his erroneous interpretation of 137.073, the annual tax limit and the alleged overpayment on each of the properties under appeal.The Exhibit also has a series of calculations that concludes an amount of total credit due taxpayer for the two properties.The calculations impose an 18% per year interest payment and 2% per year penalty payment.However, no statutory basis is provided to support the imposition of any such interest or penalty.Here again, nothing in this Exhibit addresses the critical question[38] of what a willing buyer and seller would have agreed to as the purchase price for either of the properties under appeal on January 1, 2009.

In other words, Exhibit C has no relevancy to the issue of overvaluation.Nothing in Mr. Cox’s chart and calculations provide any basis upon which a reasonable mind could conclude the fair market value of either property, let alone determine if the property had been overvalued by the Board of Equalization.

Exhibit D – Partial Copy HB Nos. 1150, 1237 & 1327

Exhibit D is a copy of a portion of section 137.073 enacted by the Missouri General Assembly in 2002 by House Bills 1150, 1237 and 1327.The portion of the statute that Mr. Cox draws attention to[39] and relies upon as the basis of his alleged overpayment of taxes theory appears in subsection 2 of 137.073[40] and reads as follows:

As provided in section 22 of article X of the constitution, a political subdivision may alsorevise each levy to allow for inflationary assessment growth occurring within the politicalsubdivision. The inflationary growth factor for any such subclass of real property orpersonal property shall be limited to the actual assessment growth in such subclass orclass, exclusive of new construction and improvements, and exclusive of the assessedvalue on any real property which was assessed by the assessor of a county or city in thecurrent year in a different subclass of real property, but not to exceed the consumer priceindex or five percent, whichever is lower.

 

Mr. Cox concludes from the foregoing provision that the taxes on his two properties could not be increased from 2002 by more than the CPI for a given year or five percent, whichever is lower.The conclusion of the taxpayer is in error.

The language on which Mr. Cox rests his argument does not have reference to the increase in the true value in money of real property or its assessed valuation.It is noted the only reference to assessed valuation and the assessor’s responsibility is found in the first sentence of the subsection.The assessor has the duty to notify each political subdivision wholly or partially within the assessment jurisdiction of the change in value in the aggregate, exclusive of new construction and improvements.The remainder of this subsection has nothing to do with valuation of real property.The subsection has to do with revision of rates of levy.

The effect of this subsection is to allow taxing entities in the various counties to revise tax levies in accordance with the provisions set forth in section 22 of Article X of the Missouri Constitution.This section of the constitution reads as follows:

Section 22. (a) Counties and other political subdivisions are hereby prohibited from levying any tax, license or fees, not authorized by law, charter or self-enforcing provisions of the constitution when this section is adopted or from increasing the current levy of an existing tax, license or fees, above that current levy authorized by law or charter when this section is adopted without the approval of the required majority of the qualified voters of that county or other political subdivision voting thereon. If the definition of the base of an existing tax, license or fees, is broadened, the maximum authorized current levy of taxation on the new base in each county or other political subdivision shall be reduced to yield the same estimated gross revenue as on the prior base. If the assessed valuation of property as finally equalized, excluding the value of new construction and improvements, increases by a larger percentage than the increase in the general price level from the previous year, the maximum authorized current levy applied thereto in each county or other political subdivision shall be reduced to yield the same gross revenue from existing property, adjusted for changes in the general price level, as could have been collected at the existing authorized levy on the prior assessed value.

 

There is nothing in this constitutional provision which addresses the valuation of real property.Section 22 does not limit the rate of increase in the valuation of real estate.The provision relates to tax levies, not assessment of property.The language in Section 137.073 cited to by Mr. Cox limiting the inflationary growth factor to the consumer price index or five percent, whichever is lower applies to tax levies.It is not applicable to the setting of the true value in money on real property.It is not applicable to the calculation of the assessed value on real property.

Complainant’s argument on this point is a misunderstanding, misinterpretation and misapplication of Section 137.073.The section relied on is irrelevant to the valuation and assessment of real property.

Exhibit E – BOE Signature Page – 2005

The next Exhibit presented by Mr. Cox is a copy of the BOE signature page, dated 6/21/05 in which the Board concluded the value for the property in Appeal 09-10646 as of January 1, 2005, to be $126,200.[41]Complainant provided nothing in his testimony to explain how this document would prove the value of the Easy Street property as of January 1, 2009, to be $102,612.08 as proposed.Exhibit E has no relevance to the issue of the true value in money of the property under appeal in Appeal 09-10646 as of January 1, 2009.

Exhibit F – STC Pamphlet

Mr. Cox next submitted a copy of one of the pages from the Commission’s pamphlet provided to taxpayers to inform them concerning presenting an appeal before the Commission.The taxpayer draws attention to one particular Question and Answer on this page of the pamphlet.The Question and Answer is:“Would copies of the Assessor’s Records on other homes in my neighborhood be good to prove value?No.The value placed on other homes by the assessor does not prove the value of your home.”

Complainant did not provide any testimony as to how this material is relevant to his claim of overvaluation.The information provided in the pamphlet is to simply advise complainants before the Commission that citing appraised or assessed values from the assessor’s records on neighboring properties do not establish the value of another property.Sales data on comparable properties has relevance, but appraised values by the assessor are not relevant.Exhibit F is irrelevant to making a prima facie case in these appeals that either property is overvalued.

Exhibit G – 137.073 Notes of Decision

Exhibit G is a copy of a page from Vernon’s Annotated Missouri Revised Statutes which provides some Notes of Decision under section 137.073.Complainant gave no testimony as to the purpose in offering this exhibit.There is nothing contained in it that is relevant to the issue before the Hearing Officer in this appeal.[42]

The Hearing Officer observes the citations[43] to the Asarco[44] Southwestern Bell[45] and Missouri Pacific[46] cases.Further research shows that no other cases presently have been decided under section 137.073 addressing the purpose of the law.A review of these three cases demonstrates that none of them individually or the three of them together establish that the true value in money or the assessed value of real property can be calculated and determined as has been proposed by Mr. Cox.Section 137.073 nowhere provides any formula or basis for the calculation of true value in money for real property for ad valorem assessment purposes.

Exhibit H – Washington University Letter

This exhibit simply advises that the language contained in HB 1150 et al was passed in May 2002 and the statute as amended in 2002 contained the same language as was in Mr. Cox’s copy of the bill.Nothing in the exhibit provides any data to establish the true value in money of either property under appeal.Nothing in the letter establishes that the formula used by Mr. Cox in calculating what he erroneously believes is the limit on taxes for his two properties is authorized by the statute.The exhibit has no relevance to a determination of true value in money.

Exhibit I – Letter from Speaker Jetton

Speaker Jetton’s letter of December 11, 2006, to Mr. Cox is irrelevant on the issue of value of the subject properties.The letter addresses only that House Bills No. 1150, 1237 and 1327 were, “intended to protect property owners from cities or counties being able to levy excessive increases in property taxes.”The letter says nothing about the valuation of real property.The exhibit provides no substantial and persuasive evidence on the issue of value.

Exhibit J – Letter from Senator Gibbons

The letter from Senator Gibbons to Mr. Cox addresses the rate of tax levy, not assessment of real estate.It has no probative benefit relative to determining the true value in money for the subject property for the 2009 – 2010 assessment cycle.It is not substantial and persuasive evidence of value.

Summary

Complainant failed to present any evidence based upon actual sales data or any recognized appraisal methodology to prove the true value in money of either of the properties which he owns.None of the exhibits or testimony had any relevance to the issue of overvaluation.Without relevant evidence that meets the standard of substantial and persuasive, the taxpayer cannot make a prima facie case that either of his properties was overvalued in the 2009-10 assessment.

Alleged Violation of Section 137.073

The claim Mr. Cox is making in his two appeals is not that his properties are overvalued, since he has presented no evidence even remotely addressing what a willing buyer and seller would have agreed to as the purchase price on January 1, 2009.The real assertion of Mr. Cox is apparently that he believes that one or more taxing jurisdictions are in violation of the provisions of 137.073.The obligation of the Assessor, the Board of Equalization and the Commission is to find the true value in money for each of Complainant’s properties.Complainant having failed to make a prima facie case by presenting substantial and persuasive evidence to rebut the presumption of correct assessment by the Board cannot have the values of either of his properties reduced, irrespective of his mistaken belief as to the impact and effect of section 137.073.

The Commission does not have the responsibility or the authority to enforce the section 137.073 and roll back levies in taxing jurisdictions. Subsection 8 of section 137.073 spells out the necessary course of action for a taxpayer who believes that a taxing jurisdiction has failed to comply with 137.073.[47]The proper course of action for Mr. Cox since he is convinced that taxing jurisdictions are not complying with 137.073 is to follow the statutorily mandated procedure under subsection 8.

ORDER

The assessed valuations for the subject properties as determined by the Assessor and sustained by the Board of Equalization for St. Louis County for the subject tax day are AFFIRMED.

The assessed value for the subject property in Appeal 09-10645 for tax years 2009 and 2010 is set at $19,480.

The assessed value for the subject property in Appeal 09-10646 for tax years 2009 and 2010 is set at $28,140.

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 for this Decision.The application shall contain specific facts or law as grounds upon which it is claimed the decision is erroneous.Said application must be in writing addressed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, MO65102-0146, and a copy of said application must be sent to each person at the address listed below in the certificate of service.

Failure to state specific facts or law upon which the appeal is based will result in summary denial. [48]

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 May 12, 2010.

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 12^thday of May, 2010, to:Richard Cox, 3847 Fee Fee Road, Bridgeton, MO 63044, Complainant;Richard Cox, 1037 Easy Street, St. Ann, MO 63074, Complainant; Paula Lemerman, Associate County Counselor, Attorney for Respondent; Philip Muehlheausler, Assessor; John Friganza, Collector, County Government Center, 41 South Central Avenue, Clayton, MO 63105.

 

 

 

 

___________________________

Barbara Heller

Legal Coordinator