State Tax Commission of Missouri
|SUMMIT NATURAL GAS||)|
|v.||)||Appeal Number 13-89549|
|CHUCK PENNEL, ASSESSOR,||)|
|TANEY COUNTY, MISSOURI,||)|
Nunc Pro Tunc
The second paragraph of the Decision and Order issued on August 9, 2016, is amended and corrected as follows:
“True value in money for the subject property for tax years 2015 is set at $2,518,725, commercial assessed value $805,990”
Is hereby stricken and the following inserted in lieu of:
“True value in money for the subject property for tax years 2013 and 2014 is set at $2,518,725, commercial assessed value $805,990”
So Order this 9th day of August, 2016.
STATE TAX COMMISSION OF MISSOURI
Senior Hearing Officer
DECISION AND ORDER
Assessed values of Taney County, MO Assessor and/or Decisions of the County Board of Equalization of Taney County, Missouri are AFFIRMED. Complainant did not present substantial and persuasive evidence to establish true market values of subject properties and did not meet the burden of proof to show discrimination.
True value in money for the subject property for tax years 2015 is set at $2,518,725, commercial assessed value $805,990
Complainant is represented by counsels Matt Hale and Brian Howes
Respondent Chuck Pennel appeared pro se.
Case heard and decided by Senior Hearing Officer John Treu.
Complainant appeals, on the grounds of overvaluation and discrimination, the decision of the County. Having considered all of the competent evidence upon the whole record, the Hearing Officer finds that the Complainant failed to present substantial and persuasive evidence as to overvaluation through double taxation and as to discrimination. The following Decision and Order is entered.
FINDINGS OF FACT
- Jurisdiction. Jurisdiction over this appeal is proper. Complainant timely appealed to the State Tax Commission from the decision of the County Board of Equalization.
- Schedule and Procedure The State Tax Commission issued an Order setting forth the schedule and procedures for this appeal. The Schedule and Procedure required that each party file and exchange exhibits and written direct testimony to establish their case in chief on or before June 1, 2014. Complainant filed and exchanged the exhibits set out below under Evidence. Parties had until June 15, 2016, to file objections and rebuttal exhibits. Respondent did not object to the exhibits filed. On June 27, 2016, the Hearing Officer Ordered that the parties advise as to whether the appeal was ready for an Evidentiary Hearing. On June 27, 2016 Complainant’s counsel notified the Hearing Officer of Complainant’s readiness “to have the Commission issue a decision based on the evidence submitted.” On July 15, 2016 Respondent notified the Commission of his willingness “for the Commission to issue a decision based on the evidence submitted.”
- Subject Property. The subject property is identified by map parcel number 25-0.0-42-300-000-000.000 and is located in Taney County, Missouri.
- Assessment. The Assessor appraised the properties at $2,518,725, commercial assessed value $805,990. From the exhibits and written direct testimony of Complainant it is not evident that any appeal was filed with the Taney County Board of Equalization regarding parcel number 25-0.0-42-300-000-000.000.
- Other Appeals. Appeals 13-89546, 15-89547 and 13-89548 were originally filed with the current appeal, such being 13-89549. On December 11, 2015 Complainant’s counsel filed a Voluntary Dismissal of Appeals 13-89546, 15-89547 and 13-89548 and such appeals were Dismissed by the Commission on January 5, 2016. Complainant contends that the properties assessed under Appeal 13-89549 (parcel number 25-0.0-42-300-000-000.000) were assessed as part of the assessments of parcels appealed in appeals 13-89546, 15-89547 and 13-89548.
- Evidence. Complainant filed with the Commission the following documents: Exhibit A – Statement of Taxable Property, Exhibit B – Amended Real Property Listing, Exhibit C – Notice of Appeals and Related Documents, Exhibit D – BOE Hearing Notices, Exhibit E-1 – Original BOE Decisions, E-2 – Amended BOE Decisions, Exhibit F – Tax Statement, Exhibit G – Tax Statements Regarding Business Equipment & Personal Property and the unsigned Written Direct Testimony of Lisa Wendt. Respondent filed no evidentiary documents.
- The true value of the property as of January 1, 2013, was $2,518,725.
CONCLUSIONS OF LAW AND DECISION
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. 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 and tangible personal property is assessed at set percentages of true value in money. Section 137.115.5, RSMo
Issuance of Decision Absent Evidentiary Hearing
The Hearing Officer, after affording the parties reasonable opportunity for fair hearing, shall issue a decision and order affirming, modifying or reversing the determination of the Board of Equalization, correcting any assessment which is unlawful, unfair, improper, arbitrary or capricious. Section 138.431.5 RSMo; 12 CSR 30-3.080 (2) The filing of exhibits and written direct testimony establishes the basis upon which opportunity for an evidentiary hearing can be held. The Complainant has the burden to present substantial and persuasive evidence. The Respondent did not file any exhibits, written direct testimony or rebuttal exhibits. Therefore, the Hearing Officer simply considered the exhibits and written direct testimony filed by Complainant and then proceeded to ascertain if said exhibits and written direct testimony met the standard of substantial and persuasive evidence to establish the market value of the property.
Presumption 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)
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. 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).
True value in money is defined in terms of value in exchange and not value in use. 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). It is the fair market value of the subject property on the valuation date. Hermel, supra Market value is the most probable price in terms of money which a property should bring in a 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:
- Buyer and seller are typically motivated.
- Both parties are well informed and well advised, and both acting in what they consider their own best interests.
- A reasonable time is allowed for exposure in the open market.
- Payment is made in cash or its equivalent.
- Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.
- 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
Weight to be Given Evidence
The Hearing Officer is not bound by any single formula, rule or method in determining true value in money, but 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 he may deem it entitled to when viewed in connection with all other circumstances. The Hearing Officer is not bound by the opinions of experts who testify on the issue of reasonable value, but may believe all or none of the expert’s testimony and accept it in part or reject it in part. St. Louis County v. Boatmen’s Trust Co., 857 S.W.2d 453, 457 (Mo. App. E.D. 1993); Vincent by Vincent v. Johnson, 833 S.W.2d 859, 865 (Mo. 1992); Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. 1991); Curnow v. Sloan, 625 S.W.2d 605, 607 (Mo. banc 1981)
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, at 615 (Mo. App. W.D. 2000); Hermel, supra; 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. Div. 2 1974).
Complainant Fails to Prove Value Regarding Overvaluation
Complainant’s overvaluation claim is based upon an assertion of double assessment. In order to prevail, Complainant must present substantial and persuasive evidence. Hermel, supra There is no presumption that the taxpayer 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.” 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). 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. 1980).
Nothing within Complainant’s exhibits clearly shows that the property assessed under parcel number 25-0.0-42-300-000-000.000 was assessed as part of the assessment of parcels appealed in appeals 13-89546, 13-89547 and 13-89548. Complainant’s counsel failed to show, by any means, a direct connection between property assessed under other parcels appeals with the property assessed under parcel number 25-0.0-42-300-000-000.000. Additionally, the assertions within the Written Direct Testimony of Lisa Wendt need be given only as much weight and credit as the Hearing Officer may deem it entitled to when viewed in connection with all other circumstances.
The Hearing Officer does not find the Written Direct Testimony of Lisa Wendt to be either substantial or persuasive as there was no testimony to identify the property assessed under the subject parcel number and identifying the same property which was assessed under another parcel number in another appeal. Consequently, the Hearing Officer is left “in the nebulous twilight of speculation, conjecture and surmise.” Id. Complainant’s failed to show by substantial and persuasive evidence any overvaluation or double taxation.
In order to obtain a reduction in assessed value based upon discrimination, the Complainant must (1) prove the true value in money of their property on January 1, 2013; and (2) show an intentional plan of discrimination by the assessing officials resulting in an assessment of that property at a greater percentage of value than other property, generally, within the same class within the same taxing jurisdiction. Koplar v. State Tax Commission, 321 S.W.2d 686, 690, 695 (Mo. 1959). Evidence of value and assessments of a few properties does not prove discrimination. Substantial evidence must show that all other property in the same class, generally, is actually undervalued. State ex rel. Plantz v. State Tax Commission, 384 S.W.2d 565, 568 (Mo. 1964). The difference in the assessment ratio of the subject property the average assessment ratio in the subject county must be shown to be grossly excessive. Savage v. State Tax Commission of Missouri, 722 S.W.2d 72, 79 (Mo. banc 1986). No other methodology is sufficient to establish discrimination. Cupples-Hesse, supra.
Complainant Fails To Prove Discrimination
Where there is a claim of discrimination based upon a lack of valuation consistency, Complainants have the burden to prove the level of assessment for the subject property in 2013. This is done by independently determining the market value of the subject property and dividing the market value into the assessed value of the property as determined by the assessor’s office.
Complainant must then prove the average level of assessment for commercial property in Taney County for 2013. This is done by (a) independently determining the market value of a representative sample of commerical properties in Taney County; (b) determining the assessed value placed on the property by the assessor’s office for the relevant year; (c) dividing the assessed value by the market value to determine the level of assessment for each property in the sample; and (d) determining the mean and median of the results.
The difference between the actual assessment level of the subject property and the average level of assessment for all residential property, taken from a sufficient representative sample in Taney County must demonstrate a disparity that is grossly excessive. Savage, supra.
Complainant’s discrimination claim fails because they failed to establish the market value of their property. Without establishing the market value, Complainant cannot establish its assessment ratio. Without establishing its ratio, it cannot establish that it is being assessed at a higher percentage of market value than any other property.
However, even if Complainant’s had established their market value, their discrimination claim would still fail because they have not demonstrated that a statistically significant number of other commerical properties within Taney County are being assessed at a lower ratio of market value than its property. Because Complainant has failed to establish the market value of its property and has failed to establish that it is being assessed at a higher percentage of market value than a statistically significant number of other properties in Taney County, it has failed to establish discrimination.
The assessed valuation for the subject property as determined by the Board of Equalization for Taney County for the subject tax day is AFFIRMED. The assessed value for the subject property for tax years 2013 and 2014 is set at $805,990.
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.
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 this 9th day of August 2016.
STATE TAX COMMISSION OF MISSOURI
Senior Hearing Officer
Delivery or Notice was made via mail, email, fax, or personally on August 9th,2016 to the following Individuals of this Order
Brian Howes, firstname.lastname@example.org, Attorney for Complainant
Matt Hale, email@example.com, Attorney for Complainant
Chuck Pennel, Assessor, firstname.lastname@example.org
Sheila Wyatt, Collector, email@example.com