State Tax Commission of Missouri
STEVE CALKINS,)
)
Complainant,)
)
v.) Appeal No.08-90014 thru 08-90018
)
DEBBIE JAMES,ASSESSOR,)
TEXAS COUNTY, MISSOURI,)
)
Respondent.)
ORDER
AFFIRMING HEARING OFFICER DECISION
UPON APPLICATION FOR REVIEW
On November 26, 2008, Senior Hearing Officer W. B. Tichenor entered his Decision and Order (Decision) affirming the assessments by the Texas County Board of Equalization.
Complainant timely filed his Application for Review of the Decision.
CONCLUSIONS OF LAW
AND DECISION
A review of the record in the present appeal provides support for the determinations made by the Hearing Officer.There is competent and substantial evidence to establish a sufficient foundation for the Decision of the Hearing Officer.A reasonable mind could have conscientiously reached the same result based on a review of the entire record. The Commission finds no basis to support a determination that the Hearing Officer acted in an arbitrary or capricious manner or abused his discretion as the trier of fact and concluder of law in this appeal.[1]
The sole ground given by Complainant for overturning the Hearing Officer’s Decision is that Complainant “did not get notice in a timely manner to appear and it is not costly for me to make a trip.”This is not supported by the facts in this appeal.
The Hearing Officer issued his Order October 9, 2008, setting the appeals for evidentiary hearing on November 6, 2008.Said Order was mailed to Complainant at the address provided on the Complaint for Review of Assessment and the return address given on the envelope postmarked December 20, 2008, in which the Application for Review was mailed.[2]The notice to Complainant was not returned to the Commission by the United States Postal System.
Complainant could have at any time prior to November 1, 2008 ,contacted the Commission and requested a continuance.[3]He did not do so.Even after the hearing date, Complainant did not make any attempt to contact the Commission seeking additional time for an evidentiary hearing until nearly a month after the Hearing Office issued his Decision.The Hearing Officer waited 20 days after the evidentiary hearing to issue his Decision dismissing the appeals.Even assuming that Complainant may not have received the October 9th Order until the middle of October, he had more than ample time to either make his plans to travel to Missouri and attend the evidentiary hearing or seek a continuance.He did neither.The legal maxim “laws aid the vigilant, not those who sleep[4] is appropriate to this case.
Complainant was given clear notice that failure to appear at the evidentiary hearing or to timely ask for a continuance would result in dismissal.[5]He elected to ignore the Order.He did so at his own peril.There is no sound basis upon which the Commission should set aside the Decision.Complainant by his failure to appear at hearing or seek a continuance as ordered was
guilty of failure of prosecution of the appeals.The Hearing Officer acted properly in dismissing the appeals.
ORDER
The Commission upon review of the record and Decision in this appeal, finds no grounds upon which the Decision of the Hearing Officer should be reversed or modified.Accordingly, the Decision is affirmed.The Decision and Order of the hearing officer, including the findings of fact and conclusions of law therein, is incorporated by reference, as if set out in full, in this final decision of the Commission.
Judicial review of this Order may be had in the manner provided in Sections 138.432 and 536.100 to 536.140, RSMo within thirty days of the mailing date set forth in the Certificate of Service for this Order.
If judicial review of this decision is made, any protested taxes presently in an escrow account in accordance with this appeal shall be held pending the final decision of the courts unless disbursed pursuant to Section 139.031.8, RSMo.
If no judicial review is made within thirty days, this decision and order is deemed final and the Collector of Texas 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.
SO ORDERED February 11, 2009.
STATE TAX COMMISSION OF MISSOURI
Bruce E. Davis, Chairman
Jennifer Tidwell, Commissioner
Charles Nordwald, Commissioner
DECISION AND ORDER
HOLDING
Appeals dismissed for failure of prosecution.Decisions of the Texas County Board of Equalization AFFIRMED.Complainant failed to appeared at the evidentiary hearing. Respondent appeared pro se.Appeals dismissed by Senior Hearing Officer W. B. Tichenor.
ISSUE
The Commission takes these appeals to determine the true value in money for the subject properties on January 1, 2007.
SUMMARY
Complainant appealed, on the ground of overvaluation, the decisions of the Texas County Board of Equalization.The values set by the Board and proposed by Complainant were as follows.Values given are appraised value/assessed value as residential properties.
|
APPEAL |
BOARD VALUES |
COMPLAINANT VALUES |
|
08-90014 |
$32,470/$6,170 |
$24,000/$4,560 |
|
08-90015 |
$22,860/$4,340 |
$14,000/$2,660 |
|
08-90016 |
$35,671/$6,780 |
$20,000/$3,800 |
|
08-90017 |
$39,668/$7,540 |
$20,000/$3,800 |
|
08-90018 |
$25,052/$4,760 |
$20,000/$3,800 |
FINDINGS OF FACT
1.Jurisdiction over these appeals is proper.Complainant timely appealed to the State Tax Commission from the decision of the Texas County Board of Equalization.
2.The subject properties have the following locations and map parcel numbers.
|
APPEAL |
ADDRESS |
MAP PARCEL # |
|
08-90014 |
319 Chestnut, Houston |
20-3-7-1-14-6 |
|
08-90015 |
679 Oak Hill Dr., Houston |
20-3-5-1-33 |
|
08-90016 |
402 Phelps St. Houston |
20-3-7-1-14-9 |
|
08-90017 |
709 Sommerfield Dr. Houston |
20-3-8-2-11-4 |
|
08-90018 |
1208 Thomasville Rd. Houston |
20-3-8-3-15 |
3.By Order issued October 9, 2008, appeals were set for evidentiary hearing at 30:00 p.m., Thursday, November 6, 2008, in the Texas County Courthouse, Houston, Missouri.Complainant was informed by said Order that if he could not attend the hearing and needed a continuance a request must be made in writing and filed with the Commission no later than five days before the hearing date.No request for continuance was filed with the Commission by Complainant.Complainant was further advised that failure to appear at the evidentiary hearing would result in dismissal for failure to prosecute.Complainant did not appear at the evidentiary hearing.
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.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.[6]
Presumptions In Appeals
There is a presumption of validity, good faith and correctness of assessment by the CountyBoardof Equalization.[7]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.[8]
Dismissal of Appeal
A Hearing Officer on his own motion may dismiss an appeal for failure of prosecution.[9]Appeals are dismissed for failure of prosecution.
ORDER
The assessed valuations for the subject properties as determined by the Board of Equalization for Texas County for the subject tax day are AFFIRMED.
The assessed values for the subject properties for tax year 2008 are set as follows:
|
APPEAL |
ASSESSED VALUES |
|
08-90014 |
$6,170 |
|
08-90015 |
$4,340 |
|
08-90016 |
$6,780 |
|
08-90017 |
$7,540 |
|
08-90018 |
$4,760 |
Complainant may file with the Commission an application for review of this decision within thirty 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. [10]
The Collector of Texas 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.
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 November 26, 2008.
STATE TAX COMMISSION OFMISSOURI
W. B. Tichenor
Senior Hearing Officer
[1] Hermel, Inc. v. STC, 564 S.W.2d 888 (Mo. 1978); Black v. Lombardi, 970 S.W.2d 378 (Mo. App. E.D. 1998); Holt v. Clarke, 965 S.W.2d 241 (Mo. App. W.D. 1998); Smith v. Morton, 890 S.W.2d 403 (Mo. App. E.D. 1995); Phelps v. Metropolitan St. Louis Sewer Dist., 598 S.W.2d 163 (Mo. App. E.D. 1980).
[7] 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).