Robert & Lynne Wilson v. Zimmerman (SLCO)

August 8th, 2012

State Tax Commission of Missouri






v.                                                                            ) Appeal No.11-10088












Decision of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.Complainants failed to present substantial and persuasive evidence to rebut the presumption of correct assessment by the Board of Equalization.

True value in money for the subject property for tax years 2011 and 2012 is set at $271,100, residential assessed value of $51,510.

Complainants appeared pro se.

Respondent appeared by Associate County Counselor, Paula J. Lemerman.

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


Complainants appeal, on the ground of overvaluation, the decision of the St. Louis 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.


1.Jurisdiction.Jurisdiction over this appeal is proper.Complainants timely appealed to the State Tax Commission from the decision of the St. Louis County Board of Equalization.A hearing was conducted on July 19, 2012, at the St. Louis County Government Center, Clayton, Missouri.

2.Subject Property.The subject property is located at 1400 Dietrich Oaks Dr., St. Louis County, Missouri.It is identified by locator number 23P410333.The property consists of a 22,834 square foot lot, improved with a 1.5 story, single-family residence built in 1983.[1]

3.Assessment.The assessor appraised the subject property at $271,100, a residential assessed value of $51,410.The Board sustained the assessment.[2]

4.Complainants’ Evidence.Complainants offered into evidence the following exhibits:




Assessor’s Data – 417 Indian Hill Ct., Ballwin, Mo


MultiList Service Data – 483 Redwood Forest Dr., Ballwin, MO


MultiList Service Data – 405 Maple Leaf, Ballwin, MO


Photo of Neighboring Property – Pool Pump & Filter


Objections to Exhibits A, B & C were sustained and the exhibits were excluded from the evidentiary record.See, Exclusion of Complainants’ Exhibits, infra.Exhibit D was received into evidence.

Mr. Wilson testified on behalf of Complainants and tendered the owners’ opinion of value to be $225,000.

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.[3]

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, 2011, to be $225,000.See, Complainants Fail to Prove Value of $225,000, infra.

5.Pool Pump.The left side of the house has no windows except for two basement windows.The rear of the house form the left corner has two narrow windows that are in the master bath/bedroom.Underneath the second window from the corner is the subject’s air conditioner.The subject’s air condition is situated between the neighbor’s pool pump and heater and the subject’s screened in porch.The neighbor’s pool pump and heater are situated approximately 27 feet from the rear left corner of the house and approximately 38 feet from the left side of the subject’s screened-in porch.The pool pump and heater are located within the neighbor’s property line on the edge of the left side of the subject’s property line.[4]

6.Respondent’s Evidence.Respondent presented the Appraisal Report (Exhibit 1) and testimony of Ross Hackman.Exhibit 1 was received into evidence.

Respondent’s evidence met the standard of substantial and persuasive to establish the value of the subject, as of January 1, 2011, to be $310,000.However, Respondent’s appraisal was accepted only to sustain the original assessment made by the Assessor and sustained by the Board and not for the purpose of raising the assessment above that value.See, Evidence of Increase in Value, infra.Respondent meet the standard of clear, convincing and cogent evidence in this appeal to sustain the original valuation of $271,100.See, Respondent’s Evidence Meets Clear, Convincing and Cogent Standard, infra.




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.[5]

Basis of Assessment

The Constitution mandates that real 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.[6]The constitutional mandate is to find the true value in money (fair market value) for the property under appeal.By statute real property is assessed at set percentages of true value in money.[7]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.[8]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.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 the fair market value that should have been placed on the property.[9]

Board Presumption and Computer-Assisted Presumption

As just addressed there exists under operation of case law the presumption of correct assessment by the Board of Equalization.As will be addressed below (See, Respondent’s Evidence Meets Clear, Convincing and Cogent Standard, infra), there exists by statutory mandate a presumption that the Assessor’s original valuation was made by a computer, computer-assisted method or a computer program – the computer-assisted presumption.These two presumptions operate with regard to the parties in different ways.The Board presumption operates in every case to require the taxpayer to present evidence to rebut it.If Respondent is seeking to prove a value different than that set by the Board, then it also would be applicable to the Respondent.The computer-assisted presumption only comes into play if the Respondent is seeking to sustain the original assessment and it has not been shown that it was not the result of a computer assisted method.

Board Presumption

The Assessor’s original value in this appeal was determined by the Board to be correct.The Board’s determination is presumed to be correct.Accordingly, the taxpayer must rebut that presumption in order to prevail.The taxpayer must establish by substantial and persuasive evidence that the value concluded by the Board is in error and what the correct value should be.The burden, 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,[10] proves that the Board’s value was in error and what the value should have been.The computer-assisted presumption plays no role in this process.

Complainants failed to meet their burden of proof and rebut the presumption of correct assessment by the Board and to prove the fair market value of the property as of January 1, 2011.See, Complainants Fail to Prove Value of $225,000, infra.

Computer-Assisted Presumption

The computer-assisted presumption can only come into play in those instances where the Respondent is seeking to have the Assessor’s original valuation affirmed.In those cases, such as this where the Assessor’s original value has been sustained by the Board, and the Respondent has tendered evidence to support that value, the Hearing Officer then imposes the computer-assisted presumption on Respondent’s evidence.It however does not negate the fact that the Board presumption remains operative as to evidence which is presented by the taxpayer.The effect of the computer-assisted presumption coming into operation is that the standard of proof for the Respondent is then raised from substantial and persuasive to clear and convincing, if Respondent offers evidence in support of the Assessor’s original valuation.The Respondent may elect to present no evidence and simply rest upon the Board presumption of correct assessment.

Respondent met the clear and convincing standard to sustain the Assessor’s original value.See, Respondent’s Evidence Meets Clear, Convincing and Cogent Standard, infra.

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.[11]True value in money is defined in terms of value in exchange and not value in use.[12]It is the fair market value of the subject property on the valuation date.[13]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.[14]


Respondent’s appraiser developed his appraisal and concluded his opinion of value under the Standard For Valuation.[15]

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.[16]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.[17]Complainants did not present an opinion of value that was derived from one of the recognized appraisal methodologies.Respondent presented a conclusion of value based upon the sales comparison approach.In valuing owner-occupied residences, the sales comparison approach, when sufficient sales data is available, as it was in this instance, is the most reliable methodology to be employed.[18]

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.[19]

The supporting data utilized by Respondent’s appraiser in this assignment were of a type reasonably relied upon by real estate appraisers in forming their opinions and the data are found to be otherwise reliable.

Exclusion of Complainants’ Exhibits A, B & C

Complainants’ Exhibits A, B and C were excluded from evidence.They do not constitute part of the evidentiary record upon which a determination of value can be made.They are only maintained in the Commission’s file in this appeal as if having been made as an offer of proof.An explanation of the basis for exclusion is presented, with an analysis as to why the exhibit would not have been persuasive had Respondent’s Counsel not objected and the exhibit had simply come into the record.

Exhibit A

Exhibit A consists of three pages which Mr. Wilson printed from the Assessor’s website.The document is generally referred to as a proper record card for a given property.The property information contained in Exhibit A is for a property at 417 Indian Hill Court, Ballwin, Missouri.The information shows that the property is 4,530 square feet in living area, as compared to 2,256 square feet of living area.The Indian Hill property is not a comparable property to the subject.The property sold in November, 2009 for $500,000 according to the document.Mr. Wilson calculated the per square foot sales price to be $110.00 and offered that this amount should be applied to the subject property to prove value.

Counsel for Respondent objected to the exhibit on the grounds of hearsay and lack of foundation.The hearsay objection was overruled.The document does consist of an out-of-court statement offered to prove the truth of itself, and the declarant was not available to testify.The document was apparently constructed by a computer program from data entered by one or more unidentified persons, as the Hearing Officer has been informed on various occasions.Mr. Wilson was using this to establish that the Indian Hill property had sold on a given date for a given amount and that the home had a certain number of square feet.The document is part of the Assessor’s data base and is a public document.The document is more probative on the point for which it is offered than any other evidence which the taxpayer could procure through reasonable efforts.

However, the lack of foundation objection was sustained.The document does not present any accepted methodology for the appraisal of real property. Mr. Wilson had not demonstrated that he was qualified to testify as to the comparability of this property based upon his personal education, training and experience.Mr. Wilson did not establish that the extrapolation of a per square foot sales price and applying it to another property constitutes a recognized and accepted appraisal methodology.It does not.It has never been accepted in any court case in Missouri on the valuation of real property for ad valorem tax purposes.The Commission has consistently declined to adopt such a methodology to arrive at fair market value.

Consequently, the information gleaned from the document, had it been received into evidence, would have had no relevance to a determination of fair market value.Evidence which is wholly irrelevant is not to be received into the record.[20]

Exhibit B

Exhibit B consists of a single Multi-List data page on a listing of a property at 483 Redwood Forest Dr., Ballwin, Missouri.The listing is as of 7/11/12.The home contains 2,563 square feet of living area and has a listing price of $279,000.As with the property in Exhibit A, Mr. Wilson calculated a per square foot listing price for this property.That amount was $108.He then applied this to the subject’s living area to arrive at an indicated value in support of his opinion of value.

Counsel for Respondent objected on the grounds of hearsay and lack of foundation.Both objections were sustained.The document does consist of an out-of-court statement offered to prove the truth of itself, and the declarant was not available to testify.There is no general exception which warranted the acceptance of the document into evidence.The document does not present any accepted methodology for the appraisal of real property.Under the same reasoning set out above for Exhibit A, there was a lack of foundation for receiving the exhibit into evidence.

Exhibit C

Exhibit C is also a Multi-List data page on a listing of a property at 405 Maple Leaf, Ballwin, Missouri.The document was presented under the same valuation theory as Mr. Wilson had testified to for Exhibits A and B.Under the same rational, Respondent’s objections were sustained.

Complainants Fail to Prove Value of $225,000

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.[21]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.”[22]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.[23]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.[24]

Owner’s Opinion of Value

The owner of property is generally held competent to testify to its reasonable market value.[25]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[26]The owners’ opinion of value, as testified to by Mr. Wilson, was based upon his valuation theory of multiplying a per square foot sale or listing value or values to the square footage of the property under appeal.Since this method for finding fair market value has never been adopted by the Commission or the courts, it does not comprise a proper foundation for an owner’s opinion.The opinion of value proffered by the taxpayers was not based upon proper elements.Accordingly, no probative weight can be given to the owners’ opinion.

Respondent’s Evidence Meets Clear, Convincing and Cogent Standard

The Respondent has imposed upon him by the provisions of Section 137.115.1, RSMo, the burden of proof to present clear, convincing and cogent evidence to sustain a valuation on residential property which is made by a computer, computer-assisted method or a computer program.There is a presumption in this appeal that the original valuation, which was sustained by the Board of Equalization, was made by a computer, computer-assisted method or a computer program.There was no evidence to rebut the presumption, therefore, in order to sustain the valuation of the subject property at $271,100, appraised value, Respondent’s evidence must come within the guidelines established by the legislature and must clearly and convincingly persuade the Hearing Officer as to the value sought to be sustained.

The statutory guidelines for evidence to meet the standard of clear, convincing and cogent include the following:

(1)The findings of the assessor based on an appraisal of the property by generally accepted appraisal techniques; and


(2) The purchase prices from sales of at least three comparable properties and the address or location thereof.As used in this paragraph, the word comparable means that:


(a)Such sale was closed at a date relevant to the property valuation; and


(b) Such properties are not more than one mile from the site of the disputed property, except where no similar properties exist within one mile of the disputed property, the nearest comparable property shall be used.Such property shall be within five hundred square feet in size of the disputed property, and resemble the disputed property in age, floor plan, number of rooms, and other relevant characteristics.[27]


Clear, cogent and convincing evidence is that evidence which clearly convinces the trier of fact of the affirmative proposition to be proved.It does not mean that there may not be contrary evidence.[28]The quality of proof, to be clear and convincing must be more than a mere preponderance but does not require beyond a reasonable doubt.[29]“For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder’s mind is left with an abiding conviction that the evidence is true.”[30]

The appraisal presented by Mr. Hackman met the first requirement of the statute.It presented a finding of value based upon an appraisal of the property.The appraisal presented the sales prices of five properties.These properties all sold at a time relevant to a valuation of the property under appeal as of 1/1/11.Each of the sale properties were less than .42 of a mile from the subject.Each property was within five hundred square feet in living area of the Wilson’s home.Each property was similar to the subject in age, floor plan, number of rooms, and other relevant characteristics.Each sale property was an appropriate comparable for appraising the subject.

Mr. Hackman made appropriate adjustments for differences between each of the comparables and the subject.His range of gross adjustments was 7.8% to 17.4%.The range of net adjustments was -5.4% to 4.2%.These ranges are well within generally accepted appraisal standards.The conclusion of value is well supported by the appraisal data.The Hearing Officer was left convinces that Exhibit 1 and the testimony of Mr. Hackman in support of his appraisal were true.The evidence instantly tilted the scales in the affirmative that the true value in money of the subject property as of January 1, 2011, was at least $271,100.

Evidence of Increase in Value

In any case in St. Louis County where the assessor presents evidence which indicates a valuation higher than the value finally determined by the assessor or the value determined by the board of equalization, whichever is higher, for that assessment period, such evidence will only be received for the purpose of sustaining the assessor’s or board’s valuation, and not for increasing the valuation of the property under appeal.[31]The evidence presented by the Respondent was substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the fair market value of the property under appeal, as of January 1, 2011, to be $310,000.[32]However, under the Commission rule just cited and Supreme Court decision[33] the assessed value cannot be increased above $51,510 (original assessed value) in this particular appeal.

The Pool Pump Issue

The real issue in this appeal, the basis for Complainants’ claim for a reduction in value, is the existence of the neighbors’ swimming pool pump some 27 feet from their house. The testimony of Mr. Wilson established that he and his wife consider the noise from the pump to interfere with their enjoyment of their own property and that any prospective buyer would take this factor into account.Complainants’ position is that the pump is a negative influence on their property’s value and would have resulted in a lower sales price on January 1, 2011, than might have been otherwise realized if the pump had not been present.The position taken by the Wilsons is not unreasonable or illogical.It simply is not supported by any evidence upon which the Hearing Officer can make any sort of adjustment to either the value of $271,100 or $310,000.

Mr. Hackman made no adjustment for this factor.His failure to adjust was based upon his inability to find sale properties in the market that shared this or a similar negative influence from which he could calculate a dollar adjustment.The Respondent was under no burden to establish an amount by which the value of Complainants’ property might have been reduced due to this factor.The Hearing Officer does not fault the appraiser for not making any adjustment, given he had no market data upon which an adjustment could be based.

This issue is one upon which Complainants bore the burden to present evidence as to what an appropriate adjustment for the influence of the pool pump might be.A taxpayer does not meet his burden if evidence on any essential element of his case leaves the Hearing Officer “in the nebulous twilight of speculation, conjecture and surmise.”[34]The pool pump issue was an essential element of the taxpayers’ case.The Hearing Officer finds himself in that nebulous twilight of speculation, conjecture and surmise.He has no evidence on the record to establish any appropriate adjustment.

The only appraisal evidence on the record actually supports a value of $310,000. Complainants’ property is only being valued at $271,100.It therefore appears that whatever the negative influence of the pool pump may be, the difference of $38,900 most likely has more than captured the impact of the pool pump.There is no evidentiary basis to make any reduction in the value of $271,100 to account for existence of the neighbors’ pool pump.


The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization for St. Louis County for the subject tax day is AFFIRMED.

The assessed value for the subject property for tax years 2011 and 2012 is set at $51,510.

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.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. [35]

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 August 8, 2012.



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 8thday of August, 2012, to: Robert Wilson, 1400 Dietrich Oaks Dr., Manchester, MO 63021, Complainant; Paula Lemerman, Associate County Counselor, Attorney for Respondent, 41 South Central Avenue, Clayton, MO 63105; Jake Zimmerman, Assessor, 41 South Central Avenue, Clayton, MO 63105; John Friganza, Collector, 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


573-751-1341 Fax


[1] A complete description of the property can be found in Exhibit 1 – Addendum – Description of the Improvements – subject property, Page 1 of 4.




[3] Section 137.115.1, RSMo.


[4] Exhibit 1 – Description o the Improvements – Subject Property, paragraph 2, Addendum Page 1 of 4; Exhibit D


[5] Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo.


[6] Article X, Sections 4(a) and 4(b), Mo. Const. of 1945


[7] Section 137.115.5, RSMo


[8] 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)


[9] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959)


[10] By even greater force of logic; even more so – Black’s Law Dictionary, Seventh Edition, p. 61


[11] 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).


[12] 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).


[13] Hermel, supra.


[14] 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.


[15] Exhibit 1 – Definition of “True Value in Money” as set forth by the State of Missouri, page 4 of 4.


[16] 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).


[17] 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).


[18] The Appraisal of Real Estate, Thirteenth Edition, The Appraisal Institute, 2008, p. 141 – Sales Comparison Approach; p. 300 – Applicability and Limitations.


[19] 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).


[20] Section 536.070 (7) RSMo.


[21] Hermel, supra.


[22] 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).


[23] 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.”Blacks 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.


[24] Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975).


[25] Rigali v. Kensington Place Homeowners’ Ass’n, 103 S.W.3d 839, 846 (Mo. App. E.D. 2003); Boten v. Brecklein, 452 S.W.2d 86, 95 (Sup. 1970).


[26] Cohen v. Bushmeyer, 251 S.W.3d 345, (Mo. App. E.D., March 25, 2008); Carmel Energy, Inc. v. Fritter, 827 S.W.2d 780, 783 (Mo. App. W.D. 1992); State, ex rel. Missouri Hwy & Transp. Com’n v. Pracht, 801 S.W.2d 90, 94 (Mo. App. E.D. 1990); Shelby County R-4 School District v. Hermann, 392 S.W.2d 609, 613 (Sup. 1965).


[27] Section 137.115.1(1) & (2).


[28] Grissum v. Reesman, 505 S.W.2d 81, 85, 86 (Mo. Div. 2, 1974).


[29] 30 AmJur2d. 345-346, Evidence section 1167.


[30] Matter of O’Brien, 600 S.W.2d 695, 697 (Mo. App. 1980).


[31] Section 138.060, RSMo; 12 CSR 30-3.075.


[32] A residential assessed value of $58,900.


[33] The Supreme Court of Missouri has interpreted Section 138.060.The Court stated:

“Section 138.060 prohibits an assessor from advocating for or presenting evidence advocating for a higher ‘valuation’ than the ‘value’ finally determined by the assessor. … . Because the legislature uses the singular terms ‘valuation’ and ‘value’ in the statute, however, it clearly was not referring to both true market value and assessed value.While the assessor establishes both true market value and assessed value, which are necessary components of a taxpayer’s assessment, as noted previously, the assessed value is the figure that is multiplied against the actual tax rate to determine the amount of tax a property owner is required to pay.The assessed value is the ‘value that is finally determined’ by the assessor for the assessment period and is the value that limits the assessor’s advocacy and evidence.Section 138.060.By restricting the assessor from advocating for a higher assessed valuation than that finally determined by the assessor for the relevant assessment period, the legislature prevents an assessor from putting a taxpayer at risk of being penalized with a higher assessment for challenging an assessor’s prior determination of the value of the taxpayer’s property.”State ex rel. Ashby Road Partners, LLC et al v. STC and Muehlheausler, 297 S.W.3d 80, 87-88 (Mo 8/4/09)


[34] See, Rossman v. G.G.C. Corp. of Missouri, 596 S.W.2d 469, 471 (Mo. App. 1980).


[35] Section 138.432, RSMo.