STATE TAX COMMISSION OF MISSOURI
| SCOTT SCHWESER, | ) | |
| ) | Appeal No. 17-112147 | |
| Complainant, | ) | Parcel/Loc. No. 19Q130406 |
| ) | ||
| v. | ) | |
| ) | ||
| 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 Scott Schweser (Complainant) did not present substantial and persuasive evidence to rebut the presumption of correct assessment by the BOE.
SUMMARY
The evidentiary hearing in this case was scheduled to begin at 11:00 a.m., May 2, 2018, at the St. Louis County Government Administration Building in Clayton, Missouri. Complainant failed to appear at the evidentiary hearing and failed to prosecute the appeal. Respondent Jake Zimmerman, Assessor, St. Louis County, Missouri, (Respondent) appeared by Counsel Steve Robson, who announced ready for trial. Case 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 $394,100, as residential property, as of January 1, 2017. The BOE found the TVM of the subject property to be $394,100 as of January 1, 2017, 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 enters the following Decision and Order.
FINDINGS OF FACT
- Jurisdiction over this appeal is proper. Complainant timely appealed to the STC.
- The subject property is located at 718 Cedar Field Court, Town & Country, St. Louis County, Missouri. The property is identified by Parcel/Locator number 19Q130406.
- By Order dated December 12, 2017, (December 2017 Order) this case was set for a Prehearing Conference on February 21, 2018, at the St. Louis County Government Administration Building, 41 South Central Avenue, in Clayton, Missouri. The Order was emailed to Complainant’s email address, which was handwritten on the Complaint for Review of Assessment form that Complainant filed with the STC. The December 2017 Order was also sent by U.S. Mail to Complainant’s contact address in California, which was handwritten on the Complaint for Review of Assessment form that Complainant had filed with the STC. The December 2017 Order informed Complainant of the following:
PLEASE NOTE: An individual may represent himself or herself at the hearing if he or she owns the property subject to appeal. If the property is owned or held by another person or a legal entity (your relative; a trust; a corporation, partnership, or other business), a licensed attorney must enter an appearance with the State Tax Commission prior to the hearing and must present Complainant’s evidence at the hearing. NO EXCEPTIONS.
- At the Prehearing Conference on February 21, 2018, Complainant’s father appeared on behalf of Complainant. Complainant’s father stated that Complainant could not attend the Prehearing Conference because he lives out of state. Complainant’s father participated in the Prehearing Conference with representatives of Respondent’s office and with the Hearing Officer. Complainant’s father stated that the subject property is tenant occupied, is an unusually-shaped lot near Interstate 64/40 and near a commercial shopping mall. Complainant’s father stated that Complainant wanted Respondent’s staff to make a site visit to view the exterior of the subject property.
- The Hearing Officer explained to Complainant’s father that an evidentiary hearing before the STC is a legal proceeding and, under Missouri law, requires the property owner either to represent himself or to obtain an attorney to represent the property owner. Complainant’s father stated that he would inform Complainant of the requirement.
- During the Prehearing Conference, by agreement of Complainant’s father, counsel for Respondent, and the Hearing Officer, the appeal was scheduled for an Evidentiary Hearing on May 2, 2018, at 11:00 a.m., at the St. Louis County Government Administration Building, 41 South Central Avenue, in Clayton, Missouri. The date and time of the Evidentiary Hearing were memorialized in a written order provided to Complainant’s father to be given to Complainant and provided to Respondent during the Prehearing Conference. The order informed Complainant that, if he could not attend the Prehearing Conference and needed a continuance, a request must be made in writing and filed with the Commission no later than five days before the date of the Prehearing Conference, not including intermediate Saturdays, Sundays, and legal holidays. The order warned Complainant that if he did not appear at the hearing and no timely request for continuance were made, the appeal would be dismissed for failure to prosecute.
- At 4:25 p.m. on May 1, 2018, counsel for Respondent sent an email message to Complainant notifying him of the room in the government administration building in which the Evidentiary Hearing would be held at 11:00 a.m. on May 2, 2018.
- At 11:48 p.m. on May 1, 2018, less than 12 hours before the start of the Evidentiary Hearing, Complainant sent the following email message to the Hearing Officer, counsel for Respondent, and Respondent’s Appraisal Manager, Robert Koch:
Today’s email is the first notice I’ve received that there is a meeting Wednesday, and it’s not possible to attend on this short notice.
At the prehearing meeting, the representative of the assessor said a property inspection would be made to reconsider the assessment. A rep from the assessor office visited the property recently and told us to wait to hear of a new proposed assessment; we have still not heard back yet.
Please advise what is happening.
Thank you,
Scott Schweser
- On May 2, 2018, the Evidentiary Hearing was commenced as scheduled. Complainant did not appear. Respondent appeared by counsel, who announced ready for trial. Counsel for Respondent also had an expert witness present and ready to testify. Following a grace period for Complainant to appear, the matter was placed on the record for the entry of decision noting Complainant’s failure to appear and to prosecute the appeal and affirming the decision of the BOE.
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 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.
Presumptions In Appeals
There is a presumption of validity, good faith, and correctness of assessment by the county board of 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). In order to prevail, a complainant must rebut the presumption of correct assessment by presenting substantial and persuasive evidence as to the proper taxation of the subject property on the tax day at issue. Hermel, 564 S.W.2d at 895; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959). There is no presumption that the taxpayer’s opinion is correct. In an appeal before the Commission, the taxpayer still bears the burden of proof because the taxpayer is the moving party seeking affirmative relief. Therefore, a complainant must prove by a preponderance of substantial and persuasive the evidence 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, 161 (Mo. App. E.D. 2003); Reeves v. Snider, 115 S.W.3d 375, 379 (Mo. App. S.D. 2003); Daly v. P. D. George Co., 77 S.W.3d 645, 648 (Mo. App. E.D. 2002); Industrial Development Authority of Kansas City v. State Tax Commission of Missouri, 804 S.W.2d 387, 392 (Mo. App. W.D. 1991).
ORDER
Complainant failed to appear and to prosecute the appeal and failed to present substantial and persuasive evidence to rebut the presumption that the BOE’s determination of the TVM of the subject property was correct. To the extent that the email sent by Complainant can be construed as requesting a continuance, the request for continuance was not filed at least five business days prior to the date of the Evidentiary Hearing. 12 CSR 30-3.050(6).
Furthermore, the email did not state a valid reason for granting a continuance, i.e., because Complainant had not received any previous notice of the Evidentiary Hearing. Given the record before the Hearing Officer, Complainant’s statement is not credible. The December 2017 Order notifying Complainant of the Prehearing Conference was sent to the email address and the mailing address that Complainant had provided to the STC. The December 2017 Order informed Complainant that only he or an attorney could represent Complainant at the Evidentiary Hearing before the STC. However, Complainant’s father appeared as Complainant’s representative at the Prehearing Conference on the ground that Complainant could not attend because he lives out of state. This implies that Complainant received the December 2017 Order and communicated with Complainant’s father regarding his attendance at the Prehearing Conference.
Complainant’s father participated in the Prehearing Conference, provided information about the subject property to Respondent’s representatives, and stated that Complainant wanted a site visit. The Hearing Officer reiterated the information from the December 2017 order that only Complainant or an attorney could represent Complainant at the Evidentiary Hearing. Complainant’s father agreed to the date and time set for the Evidentiary Hearing and received a written order to be given to Complainant memorializing the date and time for the Evidentiary Hearing.
In the May 1, 2018, email that Complainant sent to counsel for Respondent, the Hearing Officer, and Mr. Koch, Complainant referenced the discussion between Complainant’s father and Respondent’s representatives at the Prehearing Conference. Complainant also stated that a representative of Respondent had recently visited the property and had communicated with Complainant. Therefore, it is unreasonable to believe that Complainant knew of the date and time for the Prehearing Conference, knew the substance of the discussion between Complainant’s father and Respondent’s representatives at the Prehearing Conference, knew of the site visit, but did not know of the date and time of the Evidentiary Hearing.
The BOE’s determination that the TVM of the subject property was $394,100 ($74,879 assessed value) as of January 1, 2017, is AFFIRMED.
Application for Review
Complainant 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. 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, 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 appeal is based may result in summary denial. Section 138.432 RSMo 2000.
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 a 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 2000, as amended.
Any Finding of Fact that is a Conclusion of Law or Decision shall be so deemed. Any Decision that is a Finding of Fact or Conclusion of Law shall be so deemed.
SO ORDERED June 14, 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 14th day of June, 2018, to: Complainants(s) counsel and/or Complainants, the County Assessor and/or Counsel for Respondent and County Collector.
Jacklyn Wood
Legal Coordinator