State Tax Commission of Missouri
| SANFORD J. POGER TRUST, | ) | |
| SANFORD J. POGER, TRUSTEE, | ) | |
| Complainant, | ) | |
| ) | ||
| v. | ) | Appeal No. 15-13588 |
| ) | ||
| JAKE ZIMMERMAN, ASSESSOR | ) | |
| ST. LOUIS CO., MISSOURI, | ) | |
| ) | ||
| Respondent. | ) |
DECISION AND ORDER
HOLDING
The assessment made by the Board of Equalization of St. Louis County (BOE) is AFFIRMED. Complainant Sanford J. Poger Trust, Sanford J. Poger, Trustee, (Complainant) did not present substantial and persuasive evidence to rebut the presumption of correct assessment by the BOE. Assessed value in money for the subject property for tax years 2015 and 2016 is set at $78,090 residential ($411,000 true market value or TMV).
Complainant appeared by attorney Sanford J. Poger, Trustee.
Respondent appeared by attorney Steven Robson, Assistant County Counselor.
Case heard and decided by Senior Hearing Officer Amy S. Westermann.
ISSUE
Complainant appealed on the ground of overvaluation and discrimination. Respondent initially set the TMV of the subject property, as residential property, at $411,000. The BOE sustained Respondent’s valuation. The Commission takes this appeal to determine the true value in money of the subject property on January 1, 2015.
The Senior Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.
FINDINGS OF FACT
- Jurisdiction. Jurisdiction over this appeal is proper. Complainant timely appealed to the State Tax Commission.
- Evidentiary Hearing. The issue of overvaluation was presented at an evidentiary hearing, which was held on March 30, 2016,[1] at the St. Louis Government Administration Building, 41 South Central Avenue, Clayton, Missouri. Prior to the start of the hearing, the presiding Senior Hearing Officer addressed pre-hearing matters that had been brought to her attention by the parties. Both Complainant and Respondent were represented by attorneys. Off the record, Complainant had indicated that he was not prepared to present evidence regarding the discrimination claim at the hearing. The parties agreed that the two issues in the appeal, overvaluation and discrimination, would be bifurcated and that evidence for only the overvaluation claim would be presented at the March 30, 2016, hearing. The parties further agreed that Complainant would file within 60 days of March 30, 2016, a written notice of Complainant’s intent to prosecute the discrimination claim and notice of whether Complainant would obtain an expert in statistical analysis to assist with the claim. The Senior Hearing Officer then began the evidentiary hearing on the overvaluation claim and recited, on the record, the parties’ agreement regarding Complainant’s filing of a written notice of his intent to prosecute the discrimination claim and to use of an expert in statistical analysis. The parties acknowledged, on the record, that this was their agreement. Complainant, on the record, asked the Senior Hearing Officer to repeat the agreement, which she did. Complainant did not file a written notice of intent to prosecute the discrimination claim within 60 days of March 30, 2016; therefore, the record in the appeal was closed, and the appeal was taken under advisement.[2]
- Identification of Subject Property. The subject property is identified by parcel/locator number 18K622429. It is further identified as 500 North and South Road, Unit #302, University City, St. Louis County, MO. (Complaint; Exhibit 1).
- Description of Subject Property. The subject property consists of a 2,150 square foot, single-family, garden style, condominium residence built in 2000. (Exhibit 1) The subject property includes two bedrooms; 2-1/2 bathrooms; a gas furnace and water heater; central air conditioning; a two-car garage; a balcony; and one fireplace. The exterior is masonry and frame construction. (Exhibit 1)
- Assessment. Respondent set a TMV of $411,000 residential, as of January 1, 2015.
- Board of Equalization. The BOE sustained Respondent’s TMV of the subject property.
- Complainant’s Evidence. Complainant testified in his own behalf. Complainant also offered two handwritten sheets of paper containing notes and mathematical computations, which were marked as Exhibit A and Exhibit B.
Exhibit A purported to show a list of five comparable sales researched by Complainant. Complainant testified that the he had obtained the information regarding the comparable sales from St. Louis County’s records and from Respondent’s Exhibit 1, which was the appraisal report of Respondent’s appraiser. Respondent did not object to Exhibit A, which was received into evidence.
Exhibit B purported to show a comparison between the subject property and two of the comparable properties. Complainant testified that Exhibit B was being used to show that Respondent’s appraisal report and/or method of conducting the appraisal was improper or incorrect. Exhibit B specifically referred to the sale prices of the comparables, which were also utilized in Respondent’s Exhibit 1. Complainant testified that he had used Respondent’s Exhibit 1 to make the handwritten calculations in Exhibit B. Complainant explained that he had used the “assessed” value of $360,000 from Comparable No. 3 and added the $12,800 adjustment made to Comparable No. 3 in Exhibit 1 to arrive at $372,000. Complainant explained that he had used the “assessed” value of $386,000 from Comparable No. 1 and subtracted the $3,500 adjustment made to Comparable No. 1 in Exhibit 1 to arrive at $359,500. Complainant further testified that Exhibit B included a calculation representing that $30,000 of depreciation should be subtracted from the TMV of the subject property. Respondent objected to Exhibit B on the ground that Complainant was not certified as an expert in the appraisal of real property and the use of the numbers and that it was unclear what the handwritten calculations were actually trying to represent. The Senior Hearing Officer overruled the objection and received Exhibit B into evidence to be given the weight, if any, as deemed necessary.
Complainant testified that he purchased the subject property in October of 2014 for $464,000. Complainant testified that the subject property was listed with a realtor and that a buyer’s agent assisted Complainant with the purchase. Complainant testified that the list price of the subject property at the time of purchase was $480,000 to $490,000. Complainant testified that he had not had an appraisal performed on the subject property and had not made any improvements to the subject property since the date of purchase. Complainant testified that his opinion of the value of the subject property as of January 1, 2015, was $464,000. This amount was more than the amount Complainant had proposed in the Complaint.
On cross examination, Complainant again testified that his opinion of value as of January 1, 2015, was the price he paid for the subject property in October 2014. Complainant further testified that Exhibit B stated his opinion of what should be the assessed value of the subject property. Respondent thereafter made an oral motion for directed verdict on the ground that Complainant had offered no evidence to support his opinion of value on January 1, 2015. The Senior Hearing Officer denied the motion.
- Respondent’s Evidence. Respondent offered as evidence the testimony of State Certified Residential Real Estate Appraiser Mark Stuart (the Appraiser). Respondent also offered Exhibit 1, which contained the professional qualifications of the Appraiser and the Appraisal Report for the subject property. (Exhibit 1)
The Appraiser opined that the subject property had a TMV of $470,000 as of January 1, 2015, which supported the BOE’s valuation of $411,000 as of January 1, 2015.[3] The Appraiser testified that he had used the sales comparison approach to arrive at his opinion of value. The Appraiser testified that he had compared data from three properties similar to the subject property and located in the same condominium complex as the subject property. The three comparables had sold between July 2014 and September 2014. (Exhibit 1) The Appraiser, using paired sales analysis, made market-based adjustments to the sale prices of the three comparables to account for the differences between them and the subject property. The adjusted sales prices ranged from $450,000 to $487,800. (Exhibit 1) In conducting his analysis as described in Exhibit 1, the Appraiser made adjustments to the sale price of each of the comparables based on the gross living area of the units; the number of bathrooms; and the number of fireplaces. (Exhibit 1) Comparable No. 2 required no adjustments. The adjusted sale price of Comparable No. 2 was $450,000. (Exhibit 1) Exhibit 1 also contained photographs of the exterior of the subject property. The Appraiser was not able to gain access to the interior of the subject property to evaluate the condition of the interior. (Exhibit 1) The Appraiser opined the TMV of the subject property, as of January 1, 2015, was $470,000. Complainant did not object to Respondent’s Exhibit 1, which was received into the record.
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, including the application of any abatement. The Senior 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. Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo (2000) as amended.
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 Commission, 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, sub-classification, 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. The Hearing Officer during the evidentiary hearing made inquiry of Complainant and Respondent’s Appraiser.
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 is 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.
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 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.” 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 Commission “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).
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). An expert’s opinion must be founded upon substantial information, not mere conjecture or speculation, and there must be a rational basis for the opinion. Missouri Pipeline Co. v. Wilmes, 898 S.W.2d 682, 687 (Mo. App. E.D. 1995). The Hearing Officer and the State Tax Commission cannot ignore a lack of support in the evidence for adjustments made by the expert witnesses in the application of a particular valuation approach. Drey v. State Tax Commission, 345 S.W.2d 228, 234-236 (Mo. 1961), Snider v. Casino Aztar/Aztar Missouri Gaming Corp., 156 S.W.3d, 341, 348 (Mo. 2005).
Board Presumption and Computer-Assisted Presumption
There exists a presumption of correct assessment by the BOE. In charter counties or the City of St. Louis, 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 BOE 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 BOE, then it also would be applicable to the Respondent. The computer-assisted presumption is applicable only if (1) the BOE lowered the value of the Assessor and Respondent is seeking to sustain the original assessment and (2) it has not been shown that the Assessor’s valuation was not the result of a computer assisted method. The BOE’s valuation is assumed to be an independent valuation.
In the present appeal, the BOE sustained the initial valuation of Respondent; therefore, the computer-assisted presumption is not applicable in the present appeal.
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).
Evidence of Increase in Value
In any case in charter counties or the City of St. Louis where the assessor presents evidence that indicates a valuation higher than the value finally determined by the assessor or the value determined by the BOE, 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. Section 138.060 RSMo (2000) as amended; 12 CSR 30-3.075. The evidence presented by the Respondent was substantial and persuasive to rebut the presumption of correct assessment by the BOE and establish the fair market value of the property under appeal, as of January 1, 2015, to be $470,000. However, the assessed value cannot be increased above $411,000 in this particular appeal. CSR 30-3.075; State ex rel. Ashby Road Partners, LLC et al. v. STC and Muehlheausler, 297 S.W.3d 80, 87-88 (Mo. banc 2009).
Discussion
In the present appeal based upon overvaluation, Complainant failed to present substantial and persuasive evidence to rebut the presumption of true market value advocated by Respondent at the evidentiary hearing. In his Complaint, Complainant had proposed a TMV of $360,000 for the subject property. At the evidentiary hearing, however, Complainant opined that the subject property’s TMV as of January 1, 2015, was $464,000. This testimony by Complainant, in effect, operated as a concession that the BOE’s valuation was correct. Moreover, Complainant’s evidence was not supportive of either of his proposed values. Exhibit B in particular was not based on an adequate foundation in that the calculations did not reflect market adjustments under a recognized approach to valuing real property, leaving the Senior Hearing Officer to speculate as to the meaning attached to the calculations.
Conversely, Respondent presented substantial and persuasive evidence to support the presumption of correct assessment by the BOE. Respondent’s appraiser considered all three approaches to value the subject property: the cost approach, the income approach, and the sales comparison approach. The appraiser ultimately utilized the sales comparison approach because the cost approach and the income approach were not applicable to valuing the subject property. The appraiser selected three comparable sales and made market-based adjustments to the comparables. Although the Appraiser gave equal weight to all three comparable sales in arriving at his opinion of the subject property’s TMV, Comparable No. 2 appeared to be most similar to the subject property in that no adjustments were made. The sale price of Comparable No. 2 was $450,000.
ORDER
The true market valuation for the subject property as determined by Respondent for the subject tax day and sustained by the BOE is AFFIRMED. The assessed value for the subject property for tax years 2015 and 2016 is set at $78,090 residential.
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, 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 July 11, 2016.
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 electronically mailed or sent by U.S. Mail on this 11 day of July, 2016, to:
Sanford J. Poger, Attorney for Complainant, pogergp@swbell.net 500 North and South Rd. Unit #302, University City, MO 63130
Steven Robson, St. Louis County Associate County Counselor, SRobson@stlouisco.com
Jake Zimmerman, St. Louis County Assessor, syoutzy@stlouisco.com, rkoch@stlouisco.com
Jacklyn Wood
Legal Coordinator
[1] The hearing had previously been continued from February 5, 2016, at Complainant’s request.
[2] On June 1, 2016, the Senior Hearing Officer issued an Order Dismissing Issue of Discrimination. The Order contained the factual and procedural history of the appeal as well as a detailed analysis of the reason for dismissing the issue of discrimination.
[3] Respondent did not advocate increasing the BOE’s assessment of the subject property’s value.