State Tax Commission of Missouri
RONALD & PHYLLIS KARDELL,)
v.) Appeal Number 07-10082
PHILIP MUEHLHEAUSLER, ASSESSOR,)
ST. LOUIS COUNTY,MISSOURI,)
DECISION AND ORDER
Decision of the St. Louis County Board of Equalization reducing the assessment made by the Assessor is SET ASIDE.Hearing Officer finds presumption of correct assessment rebutted. True value in money for the subject property for tax year 2007 and 2008 is set at $483,000, assessed value of $91,770.
Complainants Ronald and Phyllis Kardell appeared pro se.
Respondent appeared by Assistant County Counselor, Paula Lemerman.
Case heard and decided by Hearing Officer Maureen Monaghan.
The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2007.
Complainants appeal, on the ground of overvaluation, the decision of the St. Louis County Board of Equalization, which reduced the valuation of the subject property.The Assessor determined an appraised value of $565,700, assessed value of $107,480, as residential property. The Board of Equalization reduced the valuation to $495,000, assessed value $94,050.Complainants proposed a value of $464,000, assessed value of $88,160, in their Complaint for Review of Assessment.A hearing was conducted on May 22, 2008, at theSt. LouisCountyGovernmentCenter,Clayton,Missouri.
The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.
Mr. Kardell testified on behalf of Complainants.He stated his opinion of value for the property to be $464,000 as of January 1, 2007.Mr. Kardell offered Exhibit A.Exhibit A purports to be a sales comparable grid.The Complainant used five properties and set them out in a grid with comparable items such as room count, baths, year built, and living area.The grid also has the address of the properties and a value placed on the properties by “Zillow.com” (purportedly an internet site that provides a valuation for property) and the values of the properties according to the Assessor’s Office website.The Assessor’s Office objected to Exhibit A based upon relevance, hearsay, and lack of foundation.The objections were sustained.
The Complainant offered Exhibit B.Exhibit B is another sales comparison set out like Exhibit A using six different properties.Exhibit B purports to have sales information but the grid is not completed.No market adjustments were made for the differences in the properties.
Respondent placed into evidence the testimony of Mr. Arthur Froeckmann, Missouri State Certified Residential Appraiser.The appraiser testified as to his appraisal of the subject property.The Appraisal Report, Exhibit 1, of Mr. Froeckmann was received into evidence.Mr. Froeckmann arrived at an opinion of value for the subject property of $483,000 based upon a sales comparison approach to value.
In performing his sales comparison analysis, the appraiser relied upon the sales of four properties which he deemed to be comparable to the subject property. The adjusted sales prices of the comparables fell in a range from $479,900 to $485,000.The gross adjustments ranged from 12.7% to 19.5%.
FINDINGS OF FACT
1.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.The subject property is located at 129 Crescent Bluff Drive,St. LouisCounty, MO63025. It is identified by parcel number 28U340078.
3.The property is a 3.32 acre lot with a single-family, one story brick house with a full basement.There is a three-car attached garage and a screened porch. The residence was built in 1997 of good construction and appears to be in average condition.The residence has 2,750 square feet of finished space with a total of seven rooms which includes three bedrooms and two full baths.
4.There was no evidence of new construction and improvement from January 1, 2007, to January 1, 2008.
5.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, 2007, to be $464,000, as proposed in the Complaint for Review of Assessment and as testified to at the evidentiary hearing.
6.The properties relied upon by Respondent’s appraiser in performing his appraisal were comparable to the subject property for the purpose of making a determination of value of the subject property. Due to lack of sales of improvements in the immediate neighborhood, the appraiser went over the preferred one mile distance.
7.Respondent’s evidence met the standard of substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the value of the subject, as of January 1, 2007, to be $483,000.
CONCLUSIONS OF LAW AND DECISION
The Commission has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious.Article X, section 14, Mo. Const. of 1945; Sections 138.430, 138.431, RSMo.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.Section 138.431.4, RSMo.
Presumptions In Appeals
There is a presumption of validity, good faith and correctness of assessment by the CountyBoardof Equalization.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).
The presumption in favor of the Board is not evidence.A presumption simply accepts something as true without any substantial proof to the contrary.In an evidentiary hearing before the Commission, the valuation determined by the Board, even if simply to sustain the value made by the Assessor, is accepted as true only until and so long as there is no substantial evidence to the contrary.
Notwithstanding the provision of Section 138.431.3, RSMo – “There shall be no presumption that the assessor’s valuation is correct,” – the Supreme Court of Missouri has held, “A tax assessor’s valuation is presumed correct.”Snider v. Casino Aztar/Aztar Missouri Gaming Corp., 156 S.W.3d 341 (Mo. 2005).Citing to Hermel, supra; and Cupples Hesse Corp. v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).
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.Snider, Hermel & Cupples Hesse, supra.
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.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).It is the fair market value of the subject property on the valuation date.Hermel, supra.
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.
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, Exhibit 1, p. 4.
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.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).
Missouricourts have approved the comparable sales or market approach, the cost approach and the income approach as recognized methods of arriving at fair market value. 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).
Respondent’s Burden of Proof
Respondent, when advocating a value different from that determined by the original valuation or a valuation made by the Board of Equalization, must meet the same burden of proof to present substantial and persuasive evidence of the value advocated as required of the Complainant under the principles established by case law.Hermel, Cupples-Hesse, Brooks, supra.The Froeckmann appraisal meets the required evidentiary standard in this appeal to establish fair market value for the subject at $483,000.
Mr. Froeckmann located four comparable sales within 6.31 miles of the subject property.The appraiser went outside the preferred one mile radius due to the lack of sales of similar properties in the immediate neighborhood, however, the properties chosen were in the same general market and reliable for determining the value of the subject property.The sales occurred between January 2005 and December 2006.The properties were similar in location, view, age, and room count.The properties were within 260 and 630 square feet of the subject.The adjusted sales prices ranged from $479,900 to $485,000.
Complainants’ Burden of Proof
In order to prevail, Complainants must present an opinion of market value and substantial and persuasive evidence that the proposed value is indicative of the market value of the subject property on January 1, 2007.Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, at 897. 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.” 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).
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.See, Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959). 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.Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975).
Owner’s Opinion of Value
The owner of property is generally held competent to testify to its reasonable market value.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).The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.Cohen v. Bushmeyer, — S.W.3d —-, 2008 WL 820938 (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).
In the present instance, the opinion of Mr. Kardell is based upon an incorrect development of a sales approach to value.The sales approach requires comparison of the subject property to properties that sold in a relevant time period.The properties were either not sold or the sales were not verified.The properties not sold had valuations by a valuation service that was not subject to cross examination or available to establish the foundation for their valuation.Further, there was no adjustment to the sales for differences in the property.
The Complainant also argues that his property valuation as determined by the Assessor during the 2005-2007 cycle should have only been increased by 2.5 % according to articles obtained from the Internet, magazines, newspapers, etc.The articles and information he quotes is hearsay.Such articles, in this instance addressing the general housing situation in the nation or in theSt. Louisarea lack relevance, because no foundation is established connecting what is purported in any given article to the valuation situation with regard to the property under appeal.Generalizations on either a decrease or an increase in home values does not establish that values for any given set of homes has either increased or decreased.More importantly any such area or regional trends do not address the specific question always presented in an overvaluation case before the Commission – the fair market value of a given property on a given valuation date.
Lastly, the Complainant argues that property taxes should be computed by dividing the number of county property owners into the amount of the county budget to determine a per owner share of the expenses.The Hearing Officer is without authority to change the property tax system, the Hearing Office is only authorized, in this instance, to determine the fair market value of a given property on a given valuation date.
The assessed valuation for the subject property as determined by the Assessor and reduced by the Board of Equalization forSt. LouisCountyfor the subject tax day are SET ASIDE.
The assessed value for the subject property for tax years 2007 and 2008 is set at $91,770.
A party may file with the Commission an application for review of this decision within thirty (30) days of the mailing of such decision.The application shall contain specific 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.Section 138.432, RSMo 2000.
If an application for review of this decision is made to the Commission, any protested taxes presently in an escrow account in accordance with this appeal shall be held pending the final decision of the Commission and an order to the Collector to release and disburse the impounded taxes, unless said taxes have been disbursed pursuant an order of the circuit court under the provisions of Section 139.031.8, RSMo.§139.031.3, RSMo.If no application for review is received by the Commission within thirty (30) days, this decision and order is deemed final and the Collector of St. Louis County, as well as the collectors of all affected political subdivisions therein, shall disburse the protested taxes presently in an escrow account in accord with the decision on the underlying assessment in this appeal.
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 June 2, 2008.
STATE TAX COMMISSION OFMISSOURI
Certificate of Service
I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 2ndday of June, 2008, to:Ronald Kardell, 129 Crescent Bluff Drive, Eureka, MO 63025, Complainant; Paula Lemerman, Associate County Counselor, County Government Center, 41 South Central Avenue, Clayton, MO 63105, Attorney for Respondent; Philip A. Muehlheausler, Assessor, County Government Center, 41 South Central Avenue, Clayton, MO 63105; John Friganza, Collector, County Government Center, 41 South Central Avenue, Clayton, MO 63105.