State Tax Commission of Missouri
STEVEN VIRES,)
)
Complainant,)
)
v.) Appeal Number 09-12408
)
MICHAEL BROOKS,)
ACTING ASSESSOR,)
ST. LOUIS COUNTY, MISSOURI,)
)
Respondent.)
DECISION AND ORDER
HOLDING
Decision of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.Complainant appeared pro se. Respondent appeared by Associate County Counselor, Paula Lemerman.
Case decided by Senior Hearing Officer W. B. Tichenor.
ISSUE
Complainant appealed, on the grounds of overvaluation, discrimination and “BOE denied full hearing,” the decision of the County Board of Equalization, which sustained the valuation of the subject property.The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2009.[1]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 from the decision of the St. Louis County Board of Equalization.No hearing was held due to Complainant’s failure to comply with the Commission’s Orders on the filing and exchanging of exhibits.
2.Procedure for Appeal – April 15, 2010, Order.By Order issued April 15, 2010, the parties were ordered as follows:
“On or before August 18, 2010, each party shall file with the Commission the original of all exhibits to be used in their case in chief and serve a copy upon opposing counsel, or opposing party if not represented by counsel.”
Respondent complied with said Order.Complainant filed no exhibits with the Commission and thereby failed to comply with the Commission’s Order.
The Order of April 15th informed the parties, as follows:
“Upon finding that a party has intentionally not complied with a provision of this scheduling order, sanctions may be imposed which may include exclusion of the offending party’s evidence or dismissal of the appeal.12 CSR 30-3.060.
3.Procedure for Appeal – August 25, 2010, Order.By Order issued August 25, 2010, Complainant was given until and including September 13, 2010, to comply with the Order of April 15th and file with the Commission the original of all exhibits to be used in his case in chief and serve a copy upon Paula Lemerman, Associate County Counselor, Attorney for Respondent, 41 South Central Avenue, Clayton, MO 63105.
Complainant was informed in said Order as follows:
“Failure to comply with this Order will be deemed as intentionally not complying with the Order and Rules of the Commission and the appeal will be dismissed for failure to comply with the order and rules of the Commission, failure to prosecute the appeal, and failure to present evidence to make a prima facie case to establishthe fair market value of the property under appeal.
12 CSR 30-3.050 (3) (C), (D) & (E).”
Complainant failed to respond to said Order and comply with same.
4.Complainant Precluded From Offering Evidence.Any exhibit not previously exchanged as per Commission Order is to be excluded from evidence at any evidentiary hearing.[2]Complainant by his willful failure to comply with the Commission Orders is precluded from offering any exhibits to establish the true value in money of the subject property as of January 1, 2009.
5.Subject Property.The subject property is located at 5163 Olde Silver Place, St. Louis, Missouri.The property is identified by locator number 29L140353.
6.Complainant’s Evidence.Complainant filed no evidence with the Commission as ordered.Therefore, there is nothing to support the owner’s opinion of the fair market value of the property stated in the Complaint for Review of Assessment of $149,000.There is no evidence to establish a claim of discrimination.
7.No Evidence of New Construction and Improvement.There was no evidence of new construction and improvement during the period from January 1, 2009, through
December 31, 2009.Therefore, the assessed value for 2009 will remain as the assessed value for 2010. [3]
8.Respondent’s Evidence.Respondent offered into evidence the Appraisal Report[4] of David F. Godar.[5]The appraiser concluded a value of $190,000 relying upon the sales comparison approach utilizing six sales of comparable properties.The properties relied upon by Respondent’s appraiser were comparable to the subject property for the purpose of making a determination of value of the subject property. The properties were located within .15 of a mile to 1.47 of a mile of the subject.[6]Each sale property sold at a time relevant to the tax date of January 1, 2009.The sale properties were similar to the subject in style, quality of construction, age, condition, room, bedroom and bathroom count, living area, location, site size and other amenities of comparability. The appraiser made various adjustments to the comparable properties for differences which existed between the subject and each comparable.All adjustments were appropriate to bring the comparables in line with the subject for purposes of the appraisal problem.
Respondent’s evidence met the standard of substantial and persuasive to establish the value of the subject, as of January 1, 2009, to be $190,000.However, Respondent’s appraisal was accepted only to sustain the original assessment made by the Assessor and sustained by the Board and not for the purpose of raising the assessment above that value. See, Evidence of Increase in Value, infra. Respondent met the standard of clear, convincing and cogent evidence in this appeal to sustain the original valuation of $178,800.See, Respondent Proves Value of $174,800, infra.
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.[7]
Presumption In Appeals
There is a presumption of validity, good faith and correctness of assessment by the CountyBoardof Equalization.[8]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.[9]Complainant presented no evidence to support an opinion of value.Therefore, the presumption of correct assessment by the Board was not rebutted.
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.[10]True value in money is defined in terms of value in exchange and not value in use.[11]It is the fair market value of the subject property on the valuation date.[12]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.[13]
Respondent’s appraiser concluded value under the Standard For Valuation.[14]
Evidence of Increase in Value
In any case in St. Louis County where the assessor presents evidence which indicates a valuation higher than the value finally determined by the assessor or the value determined by the board of equalization, 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.[15]The evidence presented by the Respondent was substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the fair market value of the property under appeal, as of January 1, 2009, to be $190,000.However, under the Commission rule just cited and Supreme Court decision[16] the assessed value cannot be increased above $33,210 in this particular appeal.
Respondent Proves Value of $174,800
The Respondent has imposed upon him by the provisions of Section 137.115.1, RSMo, the burden of proof to present clear, convincing and cogent evidence to sustain a valuation on residential property which is made by a computer, computer-assisted method or a computer program.There is a presumption in this appeal that the original valuation, which was sustained by the Board of Equalization, was made by a computer, computer-assisted method or a computer program.There was no evidence to rebut the presumption, therefore, in order to sustain the valuation of the subject property at $174,800, appraised value, Respondent’s evidence must come within the guidelines established by the legislature and must clearly and convincingly persuade the Hearing Officer as to the value sought to be sustained.
The statutory guidelines for evidence to meet the standard of clear, convincing and cogent include the following:
(1)The findings of the assessor based on an appraisal of the property by generally accepted appraisal techniques; and
(2) The purchase prices from sales of at least three comparable properties and the address or location thereof.As used in this paragraph, the word comparable means that:
(a)Such sale was closed at a date relevant to the property valuation; and
(b) Such properties are not more than one mile from the site of the disputed property, except where no similar properties exist within one mile of the disputed property, the nearest comparable property shall be used.Such property shall be within five hundred square feet in size of the disputed property, and resemble the disputed property in age, floor plan, number of rooms, and other relevant characteristics.[17]
Clear, cogent and convincing evidence is that evidence which clearly convinces the trier of fact of the affirmative proposition to be proved.It does not mean that there may not be contrary evidence.[18]The quality of proof, to be clear and convincing must be more than a mere preponderance but does not require beyond a reasonable doubt.[19]“For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition, and the fact finder’s mind is left with an abiding conviction that the evidence is true.”[20]The Godar appraisal meets the evidentiary standard establish by the statute.It constitutes clear, cogent and convincing evidence that as of January 1, 2009, the true value in money of the subject property was at least $174,800.
Complainant Fails To Prove Value of $149,000
In order to prevail, Complainant 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, 2009.[21]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.”[22]
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[23]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.[24]
The owner of property is generally held competent to testify to its reasonable market value.[25]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[26]Complainant failed to comply with the Commission Order and file any exhibits which would have provided a basis for the opinion of value of $149,000 set out in the Complaint for Review of Assessment.Therefore, no evidence was provided to establish an owner’s opinion based upon proper elements or a proper foundation.No probative weight can be given to the opinion of value stated in the Complaint.The opinion of an owner unsupported by market data or other evidence to establish value is insufficient to meet the required burden of proof.
Dismissal of Appeal
A Hearing Officer on his own motion may dismiss an appeal for failure to comply with Commission Orders and Rules, failure of prosecution or any other ground to justify a voluntary dismissal.[27]In the present appeal, Complainant failed to comply with the Commission Orders to file exhibits.Even though Complainant did not make response to the first Order to file exhibits, he was given a second opportunity to comply and file exhibits to establish a prima facie case.Appeal is dismissed for willful failure to comply with the orders of the Commission.Appeal is dismissed for failure of prosecution.
Complainant failed to provide any evidence to make a prima facie case to carry his burden of proof to present substantial and persuasive evidence of the true value in money of the property under appeal as of January 1, 2009, to be $149,000. Appeal is dismissed for failure to present evidence to establish a prima facie case.
ORDER
The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization for St. Louis County for the subject tax day is AFFIRMED.
The assessed value for the subject property for tax years 2009 and 2010 is set at $33,210.
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, 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. [28]
The Collector ofSt. 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.
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 October 21, 2010.
STATE TAX COMMISSION OFMISSOURI
_____________________________________
W. B. Tichenor
Senior Hearing Officer
Certificate of Service
I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 21stday of October, 2010, to:Steven Vires, 5163 Olde Silver Place, St. Louis, MO 63128, 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.
___________________________
Barbara Heller
Legal Coordinator
Contact Information for State Tax Commission:
Missouri – State Tax Commission
P.O. Box 146
301 W. High Street, Room 840
Jefferson City, MO 65102
573-751-2414
573-751-1341 FAX
[1] Complainant having failed to comply with the Commission order on filing and exchanging exhibits, the claims of discrimination and BOE denying a full hearing are deemed to have been abandoned .
[6] Comparables 1 through 5 exceeded the typical desired proximity of within 1 mile of the subject.They were considered to be the best sales available.Exhibit 1, Page 5 of 6
[8] 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).
[9] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).
[10] 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).
[11] Daly v. P. D. George Company, et al, 77 S.W.3d 645, 649 (Mo. App E.D. 2002), citing, Equitable Life Assurance Society v. STC, 852 S.W.2d 376, 380 (Mo. App. 1993); citing, Stephen & Stephen Properties, Inc. v. STC, 499 S.W.2d 798, 801-803 (Mo. 1973).
[13] 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.
[16] The Supreme Court of Missouri has interpreted Section 138.060.The Court stated:
“Section 138.060 prohibits an assessor from advocating for or presenting evidence advocating for a higher ‘valuation’ than the ‘value’ finally determined by the assessor. … . Because the legislature uses the singular terms ‘valuation’ and ‘value’ in the statute, however, it clearly was not referring to both true market value and assessed value.While the assessor establishes both true market value and assessed value, which are necessary components of a taxpayer’s assessment, as noted previously, the assessed value is the figure that is multiplied against the actual tax rate to determine the amount of tax a property owner is required to pay.The assessed value is the ‘value that is finally determined’ by the assessor for the assessment period and is the value that limits the assessor’s advocacy and evidence.Section 138.060.By restricting the assessor from advocating for a higher assessed valuation than that finally determined by the assessor for the relevant assessment period, the legislature prevents an assessor from putting a taxpayer at risk of being penalized with a higher assessment for challenging an assessor’s prior determination of the value of the taxpayer’s property.”State ex rel. Ashby Road Partners, LLC et al v. STC and Muehlheausler, 297 SW3d 80, 87-88 (Mo 8/4/09)
[22] 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).
[25] 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).
[26] Cohen v. Bushmeyer, 251 S.W.3d 345, (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).