Ryan Todd Lubker v. Jake Zimmerman, Assessor St. Louis County

March 13th, 2018

STATE TAX COMMISSION OF MISSOURI

 

RYAN TODD LUBKER, )  
  )  
              Complainant, )  
  )  
v. ) Appeal No. 17-10075
  )

)

 Parcel/Locator No.

29T430203
JAKE ZIMMERMAN,  ASSESSOR, )  
ST. LOUIS COUNTY, MISSOURI,

Respondent

 )

)

  

 

DECISION AND ORDER

 

HOLDING

 

The decision of the St. Louis County Board of Equalization (BOE) is AFFIRMED.  Complainant Ryan Todd Lubker (Complainant) did not present substantial and persuasive evidence to rebut the presumption of correct assessment by the BOE.

Complainant appeared pro se.

Respondent Jake Zimmerman, Assessor, St. Louis County, Missouri, (Respondent) appeared by counsel Steve Robson.

Case heard and decided by Senior Hearing Officer Amy S. Westermann (Hearing Officer).

ISSUE

Complainant appealed on the ground of overvaluation.  Respondent initially set the true value in money (TVM) of the subject property at $661,200, as residential property, as of January 1, 2017.  The BOE valued the subject property at $661,200, thereby sustaining Respondent’s valuation.  The State Tax Commission (STC) takes this appeal to determine the TVM for the subject property as of January 1, 2017.

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 this appeal is proper.  Complainant timely appealed to the State Tax Commission.
  2. Evidentiary Hearing. The issue of overvaluation was presented at an evidentiary hearing on January 31, 2018, at the St. Louis County Government Building, 41 South Central Avenue, Clayton, Missouri.
  3. Identification of Subject Property. The subject property is identified by parcel/locator number 29T430203.  It is further identified as 253 Lewis Road, Eureka, St. Louis County, Missouri.  (Complaint; Exhibit 3)
  4. Description of Subject Property. The subject property consists of 50.266 acres of vacant land in southwest St. Louis County.  (Exhibit A1 – A8; Exhibit 3)  The subject property is heavily wooded, includes river banks and bluffs, and has ½ mile of river frontage along the Meremac River.  (Exhibit A1 – A8)  The subject property is undeveloped and is not serviced by any utilities.  (Exhibit 3)
  5. Assessment. Respondent set a TVM for the subject property of $661,200, residential, as of January 1, 2017.
  6. Board of Equalization. The BOE set a TVM of the subject property at $661,200, residential, as of January 1, 2017.
  7. Complainant’s Evidence. Complainant offered as evidence the following exhibits:
Exhibit A1- A8 Photographs of subject property’s proximity to Meremac River; river flooding on the subject property; subject property’s heavily-wooded terrain; subject property’s steep river banks and bluffs; subject property’s extreme changes in terrain elevation
Exhibit B Parcel map of subject property showing topography, elevation changes, and two-acre homesite

 

Respondent did not object to Complainant’s exhibits, which were admitted into the record. 

Complainant testified that he had been interested in bowhunting on the subject property when it was owned by the previous owner.  Complainant testified that he had called the previous owner for permission to bowhunt, but the owner directed Complainant to contact the listing agent for the subject property.  Complainant testified that he wanted to purchase the subject property for recreational use but thought it was overvalued.  Complainant testified that he paid too much for the subject property but “exchanged[1]” it for other land Complainant had owned in the DeSoto, Missouri, area.  Complainant testified that he entered into a sale contract for the subject property on January 21, 2017, and closed the sale in March 2017.  Complainant testified that he purchased the subject property for $713,850.  Complainant testified that the characteristics of the subject property, e.g., the extreme grade of the terrain, the majority of the acreage being bluffs, the proximity to the Meramec River and frequent flooding, should be considered in valuing the subject property at less than $661,200.  Complainant did not provide a specific opinion of the TVM of the subject property as of January 1, 2017.  Complainant testified that he is in the homebuilding and development business in the St. Louis area.  Complainant testified that “developable lots” with existing streets in the area of the subject property are priced for approximately $33,000 per acre but that the subject property is raw with no streets or utilities.  Complainant testified that he had cleared approximately two acres of the subject property for a homesite.  Complainant testified that the two acres he had cleared essentially was the only buildable land of the subject property.

  1. Respondent’s Evidence. Respondent offered as evidence the following exhibits:
Exhibit 1 BOE Notice of Decision valuing the subject property at $661,200, residential, as of January 1, 2017
Exhibit 2 Real Property Certificate of Value dated March 9, 2017, and recorded with the St. Louis County Recorder’s Officer establishing Complainant’s purchase price for the subject property of $713,850 and that the intended use of the property is “New Development”
Exhibit 3 Multi-listing service data sheet for the subject property establishing the original list price of the subject property of $999,989 on January 23, 2017, and the sale price of $713,850 on March 9, 2017

 

  1. Presumption of Correct Assessment Not Rebutted – True Market Value Established. Complainant did not present substantial and persuasive evidence to rebut the presumption of correct assessment by the BOE and to establish the TVM of the subject property as of January 1, 2017, to be less than $661,200.  However, even though not required to present any evidence, Respondent presented substantial and persuasive evidence supporting the assessment made by the BOE of $661,200 as of January 1, 2017.

CONCLUSIONS OF LAW AND DECISION

Jurisdiction

The STC has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious, including the application of any abatement.  The Hearing Officer shall issue a decision and order affirming, modifying or reversing the determination of the BOE, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious.  Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo. 

Basis of Assessment

The Constitution mandates that real property and tangible personal property be assessed at its value or such percentage of its value as may be fixed by law for each class and for each subclass.  Article X, Sections 4(a) and 4(b), Mo. Const. of 1945.  The constitutional mandate is to find the true value in money for the property under appeal.  By statute, real property and tangible personal property are assessed at set percentages of true value in money:  residential property at 19%; commercial property at 32%; and agricultural property at 12%.  Section 137.115.5 RSMo (2000) as amended.

Investigation by Hearing Officer

In order to investigate appeals filed with the STC, the Hearing Officer may inquire of the owner of the property or of any other party to the appeal regarding any matter or issue relevant to the valuation, subclassification, or assessment of the property.  Section 138.430.2 RSMo (2000) as amended.  The Hearing Officer’s decision regarding the assessment or valuation of the property may be based solely upon his inquiry and any evidence presented by the parties or based solely upon evidence presented by the parties.  Id.

During the Evidentiary Hearing, the Hearing Officer inquired of Complainant.


Board Presumption and Computer-Assisted Presumption

            There exists a presumption of correct assessment by the BOE – the BOE presumption.  The BOE presumption requires the taxpayer to substantial and persuasive present evidence to rebut it.  If Respondent is seeking to prove a value different than that set by the BOE, then Respondent is required to rebut the BOE presumption.  The BOE’s valuation is assumed to be an independent valuation.

In the present appeal, the BOE sustained the initial valuation of Respondent, and Complainant is now seeking to lower the BOE’s assessment; therefore, the BOE presumption applies to Complainant.

Complainant’s Burden of Proof

To obtain a reduction in assessed valuation based upon an alleged overvaluation, the Complainant must prove the true value in money of the subject property on the subject tax day.  Hermel, Inc., v. State Tax Commission, 564 S.W.2d 888, 897 (Mo. banc 1978).  True value in money is defined as the price that the subject property would bring when offered for sale by one willing but not obligated to sell it and bought by one willing or desirous to purchase but not compelled to do so.  Rinehart v. Bateman, 363 S.W.3d 357, 365 (Mo. App. W.D. 2012); Cohen v. Bushmeyer, 251 S.W.3d 345, 348 (Mo. App. E.D. 2008); Greene County v. Hermel, Inc., 511 S.W.2d 762, 771 (Mo. 1974).  True value in money is defined in terms of value in exchange and not in terms of value in use.  Stephen & Stephen Properties, Inc. v. State Tax Commission, 499 S.W.2d 798, 801-803 (Mo. 1973).  In sum, true value in money is the fair market value of the subject property on the valuation date.  Hermel, Inc., 564 S.W.2d at 897.

“’True value’ is never an absolute figure, but is merely an estimate of the fair market value on the valuation date.”  Drury Chesterfield, Inc., v. Muehlheausler, 347 S.W.3d 107, 112 (Mo. App. E.D. 2011), citing St. Joe Minerals Corp. v. State Tax Comm’n of Mo., 854 S.W.2d 526, 529 (Mo. App. E.D. 1993).  “Fair market value typically is defined as the price which the property would bring when offered for sale by a willing seller who is not obligated to sell, and purchased by a willing buyer who is not compelled to buy.”  Drury Chesterfield, Inc., 347 S.W.3d at 112 (quotation omitted).

A presumption exists that the assessed value fixed by the BOE is correct.  Rinehart, 363 S.W.3d at 367; Cohen, 251 S.W.3d at 348; Hermel, Inc., 564 S.W.2d at 895.  “Substantial and persuasive controverting evidence is required to rebut the presumption, with the burden of proof resting on the taxpayer.” Cohen, 251 S.W.3d at 348.  Substantial evidence can be defined as such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.  Cupples Hesse Corp. v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).  Persuasive evidence is evidence that has sufficient weight and probative value to convince the trier of fact.  Cupples Hesse Corp., 329 S.W.2d at 702.  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). See also, 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).

There is no presumption that the taxpayer’s opinion is correct. The taxpayer in a STC 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.”  Westwood Partnership, 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. W.D. 1991).

Generally, a property owner, while not an expert, is competent to testify to the reasonable market value of his own land.  Cohen, 251 S.W.3d at 348-49; Carmel Energy, Inc. v. Fritter, 827 S.W.2d 780, 783 (Mo. App. W.D. 1992).  “However, when an owner’s opinion is based on improper elements or foundation, his opinion loses its probative value.”  Carmel Energy, Inc., 827 S.W.2d at 783.  A taxpayer does not meet his burden if evidence on any essential element of his case leaves the STC “in the nebulous twilight of speculation, conjecture and surmise.”  See Rossman v. G.G.C. Corp. of Missouri, 596 S.W.2d 469, 471 (Mo. App. E.D. 1980).

In this case, Complainant testified that he did not have a specific opinion of the TVM of the subject property as of January 1, 2017, but that it should be less than $661,200.

Respondent’s Burden of Proof

Respondent, when advocating a value different from that determined by the original valuation or a valuation made by the BOE, 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, Inc., 564 S.W.2d at 895; Cupples-Hesse, 329 S.W.2d at 702; Brooks, 527 S.W.2d at 53.

In this case, Respondent did not advocate a value different from his initial valuation or the valuation made by the BOE.  Respondent argued that the BOE’s determination of value was correct and should be affirmed and, even though not required, presented substantial and persuasive evidence supporting the BOE’s valuation.

Weight to be Given Evidence

The Hearing Officer is not bound by any single formula, rule, or method in determining true value in money and is free to consider all pertinent facts and estimates and give them such weight as reasonably they may be deemed entitled.  The relative weight to be accorded any relevant factor in a particular case is for the Hearing Officer to decide.  St. Louis County v. Security Bonhomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977); St. Louis County v. STC, 515 S.W.2d 446, 450 (Mo. 1974); Chicago, Burlington & Quincy Railroad Company v. STC, 436 S.W.2d 650 (Mo. 1968).

The Hearing Officer, as the trier of fact, may consider the testimony of an expert witness and give it as much weight and credit as deemed necessary when viewed in connection with all other circumstances.  Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. W.D. 1991).  The Hearing Officer, as the trier of fact, is not bound by the opinions of experts but may believe all or none of the expert’s testimony or accept it in part or reject it in part.  Exchange Bank of Missouri v. Gerlt, 367 S.W.3d 132, 135-36 (Mo. App. W.D. 2012).

Neither Complainant nor Respondent presented any expert testimony.

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, 615 (Mo. App. W.D. 2000); Hermel, Inc., 564 S.W.2d at 897; Xerox Corp. v. STC, 529 S.W.2d 413 (Mo. banc 1975).  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.   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. 1974).

“For purposes of levying property taxes, the value of real property is typically determined using one or more of three generally accepted approaches.”  Snider v. Casino Aztar/Aztar Missouri Gaming Corp., 156 S.W.3d 341, 346 (Mo. banc 2005), citing St. Louis County v. Security Bonhomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977).  “Each valuation approach is applied with reference to a specific use of the property—its highest and best use.” Snider, 156 S.W.3d at 346-47, citing Aspenhof  Corp., 789 S.W.2d at 869.  “The method used depends on several variables inherent in the highest and best use of the property in question.”  Snider, 156 S.W.3d at 347.

“Each method uses its own unique factors to calculate the property’s true value in money.”  Id.  “The ‘comparable sales approach’ uses prices paid for similar properties in arms-length transactions and adjusts those prices to account for differences between the properties.  Id. at 348.  “Comparable sales consist of evidence of sales reasonably related in time and distance and involve land comparable in character.”  Id. (quotation omitted).  “This approach is most appropriate when there is an active market for the type of property at issue such that sufficient data [is] available to make a comparative analysis.”  Id.

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.

 

  1. Both parties are well informed and well advised, and both acting in what they consider their own best interests.

 

  1. A reasonable time is allowed for exposure in the open market.

 

  1. Payment is made in cash or its equivalent.

 

  1. Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.

 

  1. 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.

Discussion

            In this case, Complainant’s evidence was neither substantial nor persuasive to rebut the presumption of correct assessment by the BOE.    Substantial evidence can be defined as such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.  Cupples Hesse Corp. v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).  Persuasive evidence is evidence that has sufficient weight and probative value to convince the trier of fact.  Cupples Hesse Corp., 329 S.W.2d at 702.

Specifically, the evidence established that, on January 21, 2017, near the time of the relevant tax date, Complainant had entered into a sale contract to purchase the subject property for $713,850.  In March 2017, Complainant closed the sale.  Complainant testified that he believed the subject property had been overvalued and that he had paid too much.  However, Complainant also testified that he is in the homebuilding and development business in the St. Louis area; thus, it can be reasonably presumed that Complainant was a sophisticated party negotiating the purchase price of the subject property.  Additionally, Complainant testified that “developable lots” with existing streets in the area of the subject property are priced for approximately $33,000 per acre but that the subject property had no streets or utilities.  However, the evidence presented by both Complainant and Respondent showed that the subject property was a lot in the Castle Pointe Estates Subdivision and accessed by Lewis Road, a paved road.  Further, Complainant’s testimony and Exhibit B established that Complainant had cleared two acres of the subject property for a homesite and had obtained a site/grading plan from an engineering and surveying firm.  From this evidence, it is reasonable to conclude that (1) the subject property is a “developable lot”. Although Complainant testified that he had the subject property appraised in late January 2018 and that the appraisal amount was $586,684, Complainant did not present the appraisal report or the appraiser’s testimony.

Even though not required to present evidence, Respondent presented substantial and persuasive evidence establishing that Complainant purchased the subject property for $713,850 close in time to the relevant tax date, which supported the BOE’s determination of the TVM of $661,200 as of January, 1, 2017.

ORDER

The TVM for the subject property as determined by the BOE is AFFIRMED.  The assessed value for the subject property for tax year 2017 is set at $125,628 residential ($661,200 TVM).

Application for Review

A party may file with the STC 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, MO 65102-0146, 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. Section 138.432, RSMo

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 March 13, 2018.

STATE TAX COMMISSION OF MISSOURI

Amy S. Westermann

Senior Hearing Officer

 

Certificate of Service

I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 13th day of March, 2018, to: Complainants(s) counsel and/or Complainant, the County Assessor and/or Counsel for Respondent and County Collector.

 

Jacklyn Wood

Legal Coordinator

[1] Complainant was referring to “like kind exchanges” as defined by the Internal Revenue Service Code.