Union Electric d/b/a Ameren Missouri v. Tom Schauwecker, Assessor Boone County

April 10th, 2019

STATE TAX COMMISSION OF MISSOURI

UNION ELECTRIC d/b/a Ameren Missouri )
             Complainant, )
) Appeal No. 18-44500
v. )
)
TOM SCHAUWECKER, ASSESSOR, )
BOONE COUNTY, MISSOURI, )
               Appellant. )

 

ORDER AFFIRMING HEARING OFFICER’S DECISION AND ORDER UPON APPLICATION FOR REVIEW

Union Electric Company, d/b/a Ameren Missouri, (Ameren) filed an application for review of the hearing officer’s decision and order dismissing Ameren’s complaint for review of assessment. The hearing officer dismissed Ameren’s complaint because Ameren failed to timely appeal the assessment to the Boone County Board of Equalization (BOE), thus depriving the State Tax Commission (Commission) of authority to hear the complaint.[1] The hearing officer’s decision and order is AFFIRMED.[2]

BACKGROUND

            On May 11, 2018, the Boone County Assessor (Assessor) mailed notices of increased assessments on Ameren’s real property. Assessor mailed the notices to the address where Ameren receives its property tax bills.[3]   The notices informed Ameren the statutory deadline for filing its BOE appeal was June 18, 2018. Ameren mailed its appeal to the BOE on June 27, 2018. The BOE received Ameren’s untimely appeal on July 2, 2018, two weeks after the appeal deadline. On July 9, 2018, Ameren requested the BOE extend the appeal deadline. On July 20, 2018, the BOE denied Ameren’s request.

Ameren filed a complaint for review of assessment with the Commission. Assessor filed a motion to dismiss Ameren’s complaint, asserting the Commission lacked authority to consider the complaint because Ameren failed to timely appeal the assessments to the BOE. Following an evidentiary hearing, the hearing officer issued a decision and order granting Assessor’s motion to dismiss. The hearing officer noted section 137.385 vests the BOE with sole discretion to extend the appeal deadline. The hearing officer concluded the BOE did not abuse its discretion by denying Ameren’s request to file an appeal out of time, and that Ameren’s untimely BOE appeal deprived the Commission of authority to consider Ameren’s complaint.

Ameren filed the instant application for review asserting five grounds for reversing the hearing officer’s decision and order. Ameren asserts: (1) the BOE failed to provide notice and opportunity to be heard prior to denying request to extend the appeal deadline; (2) the BOE abused its discretion by denying Ameren’s request to extend the appeal deadline; (3) Ameren never received the impact notices; (4) the impact notices were void because they failed to notify Ameren of its right to appeal the assessment; and (5) the hearing officer excluded admissible evidence demonstrating Assessor’s bias.

ANALYSIS

Section 137.385 applies to first class counties, such as Boone County, and authorizes property owners to appeal the assessment of their property to the county board of equalization. In pertinent part, the statute provides “[s]uch appeal shall be lodged with the county clerk as secretary for the board of equalization before the third Monday in June; provided, that the board may in its discretion extend the time for filing such appeals.” The plain, unambiguous language of section 137.385 required Ameren to file its appeal with the BOE before June 18, 2018 unless the BOE “in its discretion” extended the appeal deadline.

Ameren concedes it mailed the appeal to the BOE on June 27, 2018, and that the BOE received Ameren’s untimely appeal on July 2, 2018, two weeks after the statutory appeal deadline. Ameren concedes the BOE declined to exercise its discretion to extend the June 18, 2018 appeal deadline. Although Ameren failed to timely appeal its assessments to the BOE, Ameren asserts the hearing officer erroneously concluded the Commission lacked authority to consider Ameren’s complaint for review of the assessments.

A timely appeal is “the vital step for perfecting an appeal and is necessary to invoke appellate jurisdiction.” State v. Hayes, 394 S.W.2d 346 (Mo. 1965). This general principle applies with equal force here, because the Commission’s authority to review an appeal from the BOE is “derivative or appellate in nature and hence the power or jurisdiction of the Commission [is] no more extensive than that possessed by the [BOE].” Foster Bros. Mfg. Co. v. State Tax Comm’n, 319 S.W.2d 590, 595 (Mo. 1958); Armstrong-Trotwood, LLC v. State Tax Comm’n, 516 S.W.3d 830, 837 (Mo. banc 2017) (the Commission’s authority to consider an appeal “is derivative” of the BOE). Ameren’s untimely BOE appeal was, in effect, no appeal at all, and leaves the Commission with nothing to review.[4] The hearing officer correctly granted Assessor’s motion to dismiss Ameren’s complaint for review of assessment.

Despite conceding its appeal was untimely, Ameren asserts the hearing officer failed to follow legal precedent entitling Ameren to file an untimely appeal. Each of Ameren’s arguments are meritless.

  1. Ameren had no right to notice or a hearing on the BOE’s discretionary decision to deny the request to extend the appeal deadline.

Ameren asserts it was statutorily and constitutionally entitled to notice and an opportunity to be heard at the BOE’s July 20, 2018 meeting at which the BOE denied Ameren’s request to extend the appeal deadline. Ameren is incorrect.[5]

Ameren’s argument is premised on the incorrect assumption the BOE’s denial of an extension for the untimely appeal is a “hearing” implicating procedural due process protections. “Procedural due process imposes constraints on governmental decisions depriving individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.”  Mathews v. Eldridge, 424 U.S. 319, 332 (1976). “To have a property interest in a benefit, a person must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).

Ameren cites no case or statute showing it has a “legitimate claim of entitlement” to an untimely appeal. Ameren’s argument is foreclosed by the fact section 137.385 unequivocally vests the BOE with the sole “discretion” to extend or not extend the appeal deadline. By definition, there is no right or entitlement to that which is a matter of discretion. See St. Louis Cty. v. State, 424 S.W.3d 450, 453 (Mo. banc 2014) (plaintiffs had no right to state funds where grants from the fund were discretionary); State ex rel. ISP Minerals, Inc. v. Labor & Indus. Relations Comm’n, 465 S.W.3d 471, 473 (Mo. banc 2015) (there is no right to a discretionary writ). Because the General Assembly vested the BOE with the sole discretion to extend or not extend the appeal deadline, it necessarily follows that Ameren had no “legitimate claim of entitlement” to a late appeal. Roth, 408 U.S. at 577.

Despite the fact Ameren had no right to an untimely appeal, Ameren cites a litany of statutes and cases for the proposition the BOE’s discretionary decision to not extend the appeal deadline implicated the full panoply of procedural due process protections. None of these statutes or cases supports Ameren’s argument.

Ameren asserts section 138.100 provides all BOE proceedings are “hearings” requiring notice and an opportunity to be heard. Application for Review, at 3. Section 138.100.1(1) provides the BOE shall observe the following rules:

  1. They shall raise the valuation of all tracts or parcels of land and all tangible personal property as in their opinion have been returned below their real value; but, after the board has raised the valuation of such property, notice shall be given that said valuation of such property has been increased and a hearing shall be granted; such notice shall be in writing and shall be directed to the owner of the property or the person controlling the same, at his last address as shown by the records in the assessor’s office, and shall describe the property and the value thereof as increased; such notice may be by personal service or by mail and if the address of such person or persons is unknown, notice may be given by publication in two newspapers published within the county; such notice shall be served, mailed or published at least five days prior to the date on which said hearing shall be held at which objections, if any, may be made against said increased assessment[.] (Emphasis added)

Section 138.100.1 does not categorize every BOE proceeding as a hearing requiring notice and an opportunity to be heard. The “hearing” required by section 138.100.1 occurs after the board of equalization increases a valuation, and is limited to considering “objections, if any, . . . against said increased assessment[.]” Section 138.100.1 is irrelevant to the BOE’s discretionary decision to extend or not extend the appeal deadline pursuant to section 137.385.

Ameren claims Campbell v. Cty. Comm’n of Franklin Cty., 453 S.W.3d 762 (Mo. banc 2015) is “exactly” on point and establishes Ameren was entitled to a hearing on its request to extend the appeal deadline. Campbell held section 64.875, which expressly mandates a “hearing” on zoning amendments, requires “a public hearing” giving members of the public “the opportunity to present its views about the subject matter of the proposed zoning amendment.  Id. at 769. This is not a zoning case, and unlike section 64.875, section 137.385 does not require a hearing. Campbell is irrelevant.[6]

Finally, Ameren cites several cases for the uncontested premise procedural due process applies in the administrative context, including BOE hearings. None of the cases cited involve a discretionary decision to extend an appeal deadline. For instance, Ameren asserts Dolic v. Mo. Dep’t of Soc. Servs., 493 S.W.3d 22 (Mo. App. 2016) holds due process required the BOE to provide Ameren with notice prior to exercising its discretion to deny Ameren’s request to extend the appeal deadline.   Dolic involved the state’s action to recover money from the appellant, not a discretionary decision to extend an appeal deadline after the appellant forfeited the right to appeal by failing to file a timely appeal. Id. at 29. Dolic is irrelevant.

Ameren cites State ex rel. Wilson Chevrolet, Inc. v. Wilson, 332 S.W.2d 867 (Mo. 1960) for the proposition procedural due process applies to BOE hearings and requires notice. Wilson held proceedings increasing the taxpayer’s assessment were void because there was “no record recital and no other manner of documentary proof” the taxpayer was ever mailed a notice of the increased assessment. Id. at 872.   Unlike Wilson, where there was no record of mailed notice, Ameren stipulated Assessor mailed the notices of increased assessment to the address where Ameren received its property tax bills.   Wilson undercuts Ameren’s argument.

Finally, Ameren’s reliance on State ex rel. Lane v. Corneli, 171 S.W.2d 687 (Mo. 1943) and State ex rel. Lemon v. Bd. of Equalization, 18 S.W. 782 (Mo. 1891) is similarly misplaced. In Corneli, the record failed “to show that any notice whatever of the meeting . . . was served on the executors or that the board ever had such a meeting.” 171 S.W.2d at 689-90. Lemon simply recognizes that in tax proceedings notice “is part and parcel of due process of law.” 18 S.W. at 784 (internal quotation omitted). Neither Corneli nor Lemon holds or implies a taxpayer is entitled to notice and an opportunity to be heard on their request for a discretionary extension of the BOE appeal deadline.

Ameren did not have a statutory or constitutional right to notice and a hearing on the BOE’s discretionary decision to not extend the appeal deadline.

  1. The BOE did not abuse its discretion by denying Ameren’s request to extend the appeal deadline.

            Section 137.385 provides the BOE “may in its discretion” extend the appeal deadline. An abuse of discretion occurs when a decision is “clearly against the logic of the circumstances . . . and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration.”  Cox v. Kansas City Chiefs Football Club, Inc., 473 S.W.3d 107, 114 (Mo. banc 2015).

Ameren asserts Lake St. Louis Cmty. Ass’n v. Mo. State Tax Comm’n, 759 S.W.2d 843 (Mo. banc 1988) demonstrates the BOE abused its discretion by declining Ameren’s request to extend the appeal deadline. In Lake St. Louis, the county sent notices informing the property owner that four parcels previously considered tax exempt would be taxed. Id. at 844. The county sent the notice at least two months prior to the June 16, 1986 appeal deadline. Id. Prior to the June 16, 1986, appeal deadline, the property owner questioned the assessor’s decision to assess the formerly tax exempt properties. Id. On June 24, 1986, after the appeal deadline passed, the assessor informed the property owner the properties were tax exempt. Id. In November 1986, however, the assessor rescinded tax exempt status and sent the property owner four tax bills. The property owner requested a reconsideration. On January 20, 1987, six months after the appeal deadline passed, the assessor informed the property owner there would be no reconsideration, the properties were taxable. Id. On May 7, 1987 the property owner requested that the board of equalization extend the appeal deadline for the 1986 real estate tax assessments. The board denied the request. Id. The Missouri Supreme Court held “under these circumstances, the board abused its discretion by denying the request for extension of time to appeal the assessment.” Id. at 846. The Court emphasized “we have not required taxpayers to do the impossible, and have had no patience with procedural requirements which are sought to be imposed to deny any meaningful review.” Id.

The circumstances in Lake St. Louis are fundamentally distinguishable from the circumstances in this case. Unlike the assessor in Lake St. Louis, Assessor did not offer conflicting information or reverse course and alter Ameren’s tax obligations after the appeal deadline passed. Unlike the property owner in Lake St. Louis, Ameren’s practical ability to file a timely appeal and obtain meaningful review was not rendered impossible or in any way impeded by Assessor’s actions. Ameren simply failed to timely file its appeal prior to the statutory deadline that has been in place since 1945. Unlike the property owner in Lake St. Louis, it was Ameren’s delay, not Assessor’s interference, the resulted in Ameren forfeiting its right to appeal by failing to file a timely appeal. Lake St. Louis does not support Ameren’s argument that the BOE abused its discretion by declining to extend the appeal deadline.

The most pertinent case is Gateway Hotel Mgt., Inc. v. Bd. of Equalization of St. Louis Cty., 100 S.W.3d 149 (Mo. App. 2003). In Gateway, the court of appeals held section 137.385 vests boards of equalization with discretion to extend the appeal deadline for certain classes of taxpayers while denying an extension for others. Id. at 152. The necessary corollary to a board’s discretionary authority to extend the appeal deadline for some classes of taxpayers to the exclusion of others, is that a board may, absent an assessor’s interference with the taxpayer’s ability to file appeal, categorically deny an extension to all taxpayers.

Given the foregoing legal standards, the analysis turns to the facts of this case. Ameren concedes it failed to timely file an appeal with the BOE. In addition, the record includes an audio recording of the BOE’s meeting addressing Ameren’s request to extend the appeal deadline. At the meeting, the Boone County Counselor summarized for the BOE the Lake St. Louis and Gateway Hotel Mgt. cases, and offered his opinion that the BOE retained discretion to deny a taxpayer’s request to file an untimely appeal. Exhibit A. Assessor, a nonvoting member of the BOE, stated his office mailed Ameren’s notices of increased assessment five weeks prior to the appeal, none came back undelivered, and “[t]he rules were the same for everybody.” Id.[7] Members of the BOE questioned the County Counselor and Assessor on the issues and voted to deny Ameren’s request. The record shows the BOE considered the issue, and reflects a plausible, logical basis for the BOE’s decision to deny Ameren’s request for an extension of the appeal deadline. Ameren did not meet its burden of showing the BOE’s decision to enforce the statutory appeal deadline was “clearly against the logic of the circumstances . . . and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration.”  Cox, 473 S.W.3d at 114.[8]

  1. Assessor provided adequate notice of the increased assessments.

Ameren asserts the testimony demonstrated it did not receive notice of the increased assessments. Ameren relies exclusively on testimony from its witnesses and asserts Assessor “presented no evidence establishing that Ameren did, in fact, receive the reassessment notices in a timely manner[.]” Application for Review, at 12. Ameren’s argument fails for at least two reasons.

First, the hearing officer is the finder of fact and may believe, or disbelieve, any evidence presented. Exchange Bank of Mo. v. Gerlt, 367 S.W.3d 132, 135-36 (Mo. App. 2012). Because Ameren was the party requesting relief and bore the burden of proof, the hearing officer, as the trier of fact, could deny Ameren’s requested relief even its evidence was not contradicted. Thomas v. Harley-Davidson Motor Co. Grp., LLC, 571 S.W.3d 126, 139 (Mo. App. 2019). Ameren’s argument distills to an assertion the hearing officer should have attached conclusive credibility to the testimony from Ameren’s witnesses. The hearing, as the trier of fact, declined to do so and there is no basis for the Commission to reverse the hearing officer’s assessment of the evidence.

Second, Ameren’s argument incorrectly assumes mailed notice is insufficient. In pertinent part, section 137.355.1 provides “if an assessor increases the valuation of any real property, he shall forthwith notify the record owner of the increase either in person or by mail directed to the last known address, and if the address of the owner is unknown notice shall be given by publication in two newspapers published in the county.”[9] (Emphasis added). “Where the issue is submitted to the finder of fact, notice of an increase in assessed value can be found to have been received upon the basis of a presumption of delivery of mail, even though a taxpayer denies receipt.”   Buck v. Leggett, 813 S.W.2d 872, 876 (Mo. banc 1991). Ameren concedes that approximately five weeks prior to the appeal deadline, Assessor mailed the notices of increased assessment to the address where Ameren receives its property tax bill. There is no evidence the notices were returned as undeliverable.[10] Ameren received all the notice it was due.

  1. The impact notices were not void.

Ameren asserts even if it did receive the notices of increased assessment, the notices were void because they did not track the notice required by section 137.180.1. Section 137.180.1 generally provides the assessor shall notify a property owner of an increased assessment “either in person, or by mail directed to the last known address; every such increase in assessed valuation made by the assessor shall be subject to review by the county board of equalization whereat the landowner shall be entitled to be heard, and the notice to the landowner shall so state.” Section 137.180.1 is not the applicable statute. Section 137.325 provides sections 137.325 to 137.420 apply to first class counties. Boone County is classified as a first class county. Section 137.355 is the applicable statute, not section 137.180.1. Section 137.180.1 is irrelevant.

  1. The hearing officer did not erroneously exclude admissible evidence of Assessor’s bias.

Ameren asserts the hearing officer erroneously excluded Exhibit L, an email from Assessor to the Howard County Assessor attaching a newspaper article detailing Ameren’s challenges to its assessments in various counties.   In part, the email stated “An interesting read, hang in there, don’t give up the fight. Ameren filed a 2018 appeal in BoCoMo on their $117,000,000 valuation!”   Ameren asserts the email “establishes the Assessor’s bias against Ameren” and shows he was “unapologetically against the extension[.] Application for Review, at 14.

The “interest or bias of a witness and his relation to or feeling toward a party are never irrelevant matters.” Mitchell v. Kardesch, 313 S.W.3d 667, 676 (Mo. 2010) (internal quotation omitted). “Bias” refers to a witnesses’ prejudice or hostility tending to impair their credibility. State v. Johnson, 700 S.W.2d 815, 817 (Mo. banc 1985); see also State v. Solven, 371 S.W.2d 328, 331 (Mo. banc 1963) (bias includes “hostility, prejudice or ill feeling”).

The hearing officer, as trier of fact, has “wide discretion” on evidentiary issues. Lagud v. Kansas City Bd. of Police Comm’rs, 136 S.W.3d 786, 793 (Mo. banc 2004); see also Daly v. State Tax Comm’n, 120 S.W.3d 262, 267-68 (Mo. App. 2003) (Commission hearing officer retains broad discretion in admitting evidence). The hearing officer could have reasonably concluded Exhibit L showed Assessor’s good faith disagreement with Ameren, not bias.   Further, “[f]or evidentiary error to cause reversal, prejudice must be demonstrated.” Mitchell, 313 S.W.3d at 675. Therefore, even if the Commission concluded the hearing officer should have admitted Exhibit L, the Commission is not persuaded its exclusion affected the outcome. The hearing officer did not abuse her discretion by sustaining Respondent’s objection to Exhibit L.

Conclusion

            Ameren’s untimely BOE appeal failed to invoke the Commission’s derivative authority to consider Ameren’s complaint for review of assessment. The BOE did not abuse its discretion by declining to extend the appeal deadline. Assessor timely mailed proper notice of the increased assessments to Ameren. The hearing officer did not abuse her discretion by sustaining Assessor’s objection to admission of the email. The hearing officer’s decision and order is affirmed.

ORDER

            The hearing officer’s decision and order is AFFIRMED. The hearing officer’s decision and order is incorporated as if fully set forth herein.

Section 138.432 and sections 536.100 to 536.140 govern judicial review of the Commission’s decision and order. If Ameren seeks timely seeks judicial review within thirty days, any protested taxes presently in escrow as a result of this appeal shall be held pending a final decision of the courts, unless disbursed pursuant to section 139.031.8.

If judicial review is not sought within thirty days, this decision and order is deemed final and the Boone County Collector, and the collectors of all affected political subdivisions, shall disburse the protested taxes presently held in escrow in accordance with the decision on the assessment underlying this appeal.

SO ORDERED September 10, 2019.

STATE TAX COMMISSION OF MISSOURI

 

_____________________________________

Bruce E. Davis, Chairman

 

_____________________________________

Victor Callahan, Commissioner

 

_____________________________________

Will Kraus, Commissioner

Certificate of Service

I certify that copy of the foregoing has been sent electronically or mailed postage prepaid on September 10, 2019, to:

 

Counsel for Complainant, Tim Tryniecki, ttryniecki@armstrongteasdale.com;

Counsel for Respondent, CJ Dykhouse, cdykhouse@boonecountymo.org

Assessor, Tom Schauwecker, assessor@boonecountymo.org

Collector, Brian McCollum, bmccollum@boonecountymo.org

Clerk, Brianna Lennon, blennon@boonecountymo.org

 

Elaina McKee

Legal Coordinator

 

[1] As an administrative body, the Commission “is not constitutionally vested with subject matter jurisdiction, as the courts of this state are; rather, it is merely conferred statutory authority to take certain actions.” Cass County v. Dir. of Revenue, 550 S.W.3d 70, 74 (Mo. banc 2018); see also State ex rel. Zimmerman v. Blanc, 548 S.W.3d 396, 402 n.7 (Mo. App. 2018) (the Commission exercises statutory authority, not jurisdiction, because the Commission “does not derive its power to act directly from the Missouri Constitution”); State ex rel. Praxair, Inc. v. Mo. Pub. Serv. Comm’n, 344 S.W.3d 178, 192 n.9 (Mo. banc 2011) (reference to an administrative agency’s “jurisdiction” is more appropriately phrased as a reference to its “authority”). The Commission, therefore, will refer to “authority,” not “jurisdiction.”

[2] Section 138.430, RSMo 2000, provides a property owner has a “right to appeal from the local boards of equalization to the state tax commission under rules prescribed by the state tax commission[.]” Section 138.431 authorizes hearing officers to hear and decide appeals. Section 138.432 authorizes the Commission to “affirm, modify, reverse, or set aside the decision and order of the hearing officer[.] All statutory citations are to RSMo 2000, as amended.

[3] The mailing address was P.O. Box 66139, St. Louis, Missouri 63166

[4] See Hannah v. Hannah, 568 S.W.3d 451, 453 (Mo. App. 2019) (an untimely appeal is not perfected, and arguments raised in the appeal will not be considered); Collector of Revenue of City of St. Louis v. Parcels of Land Encumbered with Delinquent Tax Liens, 350 S.W.3d 840, 841 (Mo. App. 2011) (“If an appeal is not timely, this Court lacks authority to consider it”); Blythe v. Blythe, 630 S.W.2d 198, 199–200 (Mo. App. 1982) (court will not consider an untimely appeal).

[5] Section 137.355.1 authorized Assessor to provide notice of the increased assessments “by mail directed to the last known address[.]” Ameren concedes Assessor mailed the notices to the same address where it received its property tax bills. Ameren’s due process argument, therefore, is necessarily an argument that section 137.355.1 is unconstitutional as applied. As an executive branch administrative agency, the Commission’s “adjudicative power extends only to the ascertainment of facts and the application of existing law thereto in order to resolve issues within the given area of agency expertise.” State Tax Comm’n v. Admin. Hearing Comm’n, 641 S.W.2d 69, 75 (Mo. banc 1982). It follows that the Commission lacks authority to resolve questions concerning the constitutionality of state statutes. City of Joplin v. Indus. Comm’n of Mo., 329 S.W.2d 687, 689 (Mo. banc1959); Westwood P’ship v. Gogarty, 103 S.W.3d 152, 162 (Mo. App. 2003). The Commission, recognizing it lacks authority to finally resolve Ameren’s constitutional claim, will gratuitously address Ameren’s argument.

 

[6] Ameren’s reliance on State ex rel. Mason v. Cty. Comm’n of Franklin Cty., 551 S.W.3d 54 (Mo. App. 2018) is similarly misplaced.

[7] Section 138.010.1 provides county assessors are non-voting members of the board of equalization.

[8] At the hearing on the motion to dismiss, Ameren argued “there’s a glaring, absolute, infinite absence of evidence on discretion.” Transcript at 138. This argument is self-defeating. As the moving party, Ameren bears the burden of showing an abuse of discretion. If, as Ameren argued, there is no evidence regarding the BOE’s exercise of its discretion, then Ameren failed to meet its burden of showing an abuse of discretion. At best, Ameren’s argument would require the Commission to set aside the BOE’s decision based on pure speculation.

[9] Section 137.355 applies to first class counties. Boone County is classified as a first class county.

[10] When certified mail is returned unclaimed, due process requires the state to take additional reasonable steps to notify the property owner. Jones v. Flowers, 547 U.S. 220, 239 (2006). The notices mailed to Ameren were not returned unclaimed.

 

State Tax Commission of Missouri

UNION ELECTRIC d/b/a Ameren Missouri )
              Complainant, )
) Appeal No. 18-44500
v. )
)
TOM SCHAUWECKER, ASSESSOR, )
BOONE COUNTY, MISSOURI, )
               Respondent. )

 

DECISION AND ORDER

HOLDING

            Tom Schauwecker, Assessor of Boone County Missouri (Respondent), moved to dismiss the Complaint for Review of Assessment.  Motion GRANTED.

Complainant appeared by counsel Tim Tryneicki.

Respondent appeared in person and by counsel CJ Dykhouse.

Motion heard and decided by Chief Counsel Maureen Monaghan.

ISSUE

            Respondent moved to dismiss the Complaint for Review of Assessment for Lack of Jurisdiction of the State Tax Commission (STC).

FINDINGS OF FACT

  1. Motion Hearing. The issue of jurisdiction was presented at an evidentiary hearing on February 28, 2019, at the Boone County Government Center, Columbia, Missouri.
  2. County Classification. Boone County is a first class county.
  3. Respondent assessed Complainant’s property.  Respondent issued notices of increased assessments (Impact Notices) to property owners on May 11, 2018.  The Impact Notices included the deadline of June 18, 2018 to file an appeal with the Board of Equalization (BOE) to contest the assessment.
  4. Board of Equalization. Appeals to Boards of Equalization of first class counties are due before the 3rd Monday in June unless extended by the Board. The third Monday in June in 2018 was June 18, 2018.
  5. Appeal to the BOE. Complainant appealed their valuation to the BOE.  The appeal was dated June 27, 2018 and received by the BOE on July 2, 2018.  On July 3, 2018, the County Clerk’s Office notified Complainant the appeal was untimely.  On July 9, 2018, Complainant moved the BOE to accept their appeal out of time.  On July 20, 2018, the BOE denied the request.
  6. Complaint for Review of Assessment. Complainant filed a Complaint for Review of Assessment with the STC.
  7. Prior to the presentation of evidence, the Hearing Officer inquired whether the parties disputed any of the following facts:
  8. Respondent mailed Impact Notices on May 11, 2018;
  9. The deadline to file an appeal was set forth in the Impact Notices;
  10. Complainant appealed to the BOE on June 27, 2018 and the notice was received by the BOE on July 2, 2018;
  11. The secretary of the BOE denied the appeal as being untimely on July 3, 2018;
  12. On July 9, 2018, Complainant requested the BOE accept the appeal filed out of time;
  13. On July 20, 2018, the BOE denied the request; and
  14. The mailing address for Complainant is P.O. Box 66149, St. Louis, Missouri   It has been used by Boone County Officials in regards to ad valorem taxation since at least 2013.

The parties agreed that the above recited facts were true.

  1. Respondent’s Evidence. The Respondent moved to dismiss the Complaint for Review of Assessment filed with the STC.  Respondent offered the following exhibits to support their position:
Exhibit Description
1 Section 138.430
2 Section 137.385
3 12 CSR Division 30
4 Affidavit of Dian Buchmann, Deputy County Clerk, Clerk of the BOE
5 Affidavit of Tom Schauwecker, Boone County Assessor
6 Affidavit of Aaron Gish, Boone County Information Technology Director
7 Affidavit of Kenny Mohr, Chief Appraiser
8 2013 address notification of Ameren – P.O. Box 66149, St. Louis, MO  63166
9 Section 536.070 (12)
10 Transmittal Envelope of Affidavits mailed to Complainant’s Attorney on 1/17/19
11 Section 137.355

Complainant objected to Exhibits 1-3 and 9 for relevance.  The objection was overruled and the exhibits were admitted and given the weight deemed appropriate.  Complainant objected to Exhibits 6 and 7 as the witnesses were not present at the hearing.  The objection was overruled.

Respondent sought official notice of relevant portions of statutes and regulations.  The following portions of Exhibits 1, 2, 3, 9 and 11 were highlighted by Respondent in his exhibits as well as their presentation as evidence and argument:

138.430.  1.  Every owner of real property or tangible personal property shall have the right to appeal from the local boards of equalization to the state tax commission under rules prescribed by the state tax commission, within the time prescribed in this chapter or thirty days following the final action of the local board of equalization, whichever date later occurs, …

4.  Upon the timely filing of an appeal to the state tax commission as provided in this section,

137.385.   Any person aggrieved by the assessment of his property may appeal to the county board of equalization.  An appeal shall be in writing and the forms to be used for this purpose shall be furnished by the county clerk.  Such appeal shall be lodged with the county clerk as secretary of the board of equalization before the third Monday in June;  provided, that the board may in its discretion extend the time for filing such appeals.

 

137.355.   1.  If an assessor increases the valuation of any tangible personal property as estimated in the itemized list furnished to the assessor, and if an assessor increases the valuation of any real property, he shall forthwith notify the record owner of the increase either in person or by mail directed to the last known address, and if the address of the owner is unknown notice shall be given by publication in two newspapers published in the county

  1. For all calendar years prior to the first day of January of the year following receipt of software necessary for the implementation of the requirements provided under subsections 3 and 4 of this section from the state tax commission, whenever any assessor shall increase the valuation of any real property, he or she shall forthwith notify the record owner on or before June fifteenth of the previous assessed value and such increase either in person, or by mail directed to the last known address and include on the face of such notice, in no less than twelve-point font, the following statement:

NOTICE TO TAXPAYER:  IF YOUR ASSESSED VALUE HAS INCREASED, IT MAY INCREASE YOUR REAL PROPERTY TAXES WHICH ARE DUE DECEMBER THIRTY-FIRST.  IF YOU DO NOT AGREE THAT THE VALUE OF YOUR PROPERTY HAS INCREASED, YOU MUST CHALLENGE THE VALUE ON OR BEFORE ______ (INSERT DATE BY WHICH APPEAL MUST BE FILED) BY CONTACTING YOUR COUNTY ASSESSOR.

536.070.  In any contested case:

(12)  Any party or the agency desiring to introduce an affidavit in evidence at a hearing in a contested case may serve on all other parties (including, in a proper case, the agency) copies of such affidavit in the manner hereinafter provided, at any time before the hearing, or at such later time as may be stipulated.  Not later than seven days after such service, or at such later time as may be stipulated, any other party (or, in a proper case, the agency) may serve on the party or the agency who served such affidavit an objection to the use of the affidavit or some designated portion or portions thereof on the ground that it is in the form of an affidavit; provided, however, that if such affidavit shall have been served less than eight days before the hearing such objection may be served at any time before the hearing or may be made orally at the hearing.  If such objection is so served, the affidavit or the part thereof to which objection was made, may not be used except in ways that would have been permissible in the absence of this subdivision; provided, however, that such objection may be waived by the party or the agency making the same.  Failure to serve an objection as aforesaid, based on the ground aforesaid, shall constitute a waiver of all objections to the introduction of such affidavit, or of the parts thereof with respect to which no such objection was so served, on the ground that it is in the form of an affidavit, or that it constitutes or contains hearsay evidence, or that it is not, or contains matters which are not, the best evidence, but any and all other objections may be made at the hearing.  Nothing herein contained shall prevent the cross-examination of the affiant if he or she is present in obedience to a subpoena or otherwise and if he or she is present, he or she may be called for cross-examination during the case of the party who introduced the affidavit in evidence.  If the affidavit is admissible in part only it shall be admitted as to such part, without the necessity of preparing a new affidavit.  The manner of service of such affidavit and of such objection shall be by delivering or mailing copies thereof to the attorneys of record of the parties being served, if any, otherwise, to such parties, and service shall be deemed complete upon mailing; provided, however, that when the parties are so numerous as to make service of copies of the affidavit on all of them unduly onerous, the agency may make an order specifying on what parties service of copies of such affidavit shall be made, and in that case a copy of such affidavit shall be filed with the agency and kept available for inspection and copying.  Nothing in this subdivision shall prevent any use of affidavits that would be proper in the absence of this subdivision.

12 CSR 30-3.005 Appeals of the Assessment of Real Property to the Local Board of Equalization Under the Two-Year Assessed Value Cycle

(2) Appeals to the Local Board of Equalization in Even-Numbered Years.

(A) If a taxpayer did not file an appeal of an assessment of real property from the local board of equalization to the State Tax Commission in the odd-numbered year, the appeal to the local board of equalization in the even-numbered year shall be made by the aggrieved taxpayer in the manner required by law.

12 CSR 30-3.010 Appeals From the Local Board of Equalization

(1) Every owner of real property or tangible personal property shall have the right to appeal from the decision of the local board of equalization, upon compliance with the following rules:

(B) A complaint appealing a property assessment shall be filed not later than September 30 or within thirty (30) days of the decision of the board of equalization, whichever is later.

  1. In any county or the City of St. Louis, the owner may appeal directly to the State Tax Commission (a) where the assessor fails to notify the current owner of the property of an initial assessment or an increase in assessment from the previous year, prior to thirty (30) days before the deadline for filing an appeal to the board of equalization …

(7) …. but the commission may not extend the time for taking any action under rules 12 CSR 30-2.021(1)(A); 12 CSR 30-3.021(1)(C); 12 CSR 30-3.005—Appeals of the Assessment of Real Property to the Local Board of Equalization Under the Two-Year Assessed Value Cycle; …

Diane Buchmann completed an affidavit on behalf of Respondent. (Exhibit 4)  She is  a deputy county clerk and serves as the secretary of the BOE.  She testified that Boone County is a first class county.  The statutes require filing an appeal of an assessment with the BOE before the third Monday in June.  The BOE may in its discretion extend the time for filing such appeals.  The third Monday in June 2018 was June 18, 2018.  She received an appeal from Complainant on July 2, 2018.  The appeal was dated June 27, 2018.  A notice of the denial was sent to Complainant at P.O. Box 66149, St. Louis, MO 63166 on July 3, 2018.  On July 9, 2018, Complainant filed a letter via facsimile requesting the BOE allow Complainant to file an appeal out of time.  The issue was on the BOE’s July 20, 2018 agenda which was posted on July 16, 2018 at 3:05 P.M.  The BOE denied the request to extend the dealine for filing an appeal.

Respondent, completed an affidavit. (Exhibit 5)  On May 11, 2018, Respondent’s office mailed 3,352 Impact Notices in 2,078 different mail pieces, including 20 Impact Notices to Complainant.  The Impact Notices were mailed to P.O. Box 66149, St. Louis, Missouri  63166.  The address has been used for “many years” by Respondent to notify Complainant of reassessments.  May 11, 2018, the date of mailing Impact Notices by Respondent, was 38 days prior to the BOE deadline of June 18, 2018.

Aaron Gish (Gish) signed an affidavit. (Exhibit 6)  Gish is the Director of Boone County Information Technology (IT) Department.  His duties include supervision of mail services.  On May 11, 2018, Respondent mailed 3,352 individual Impact Notices in a total of 2,078 pieces of mail.  He identified 20 Impact Notices for Complainant were included in the mailings of May 11, 2018.

Kenny Mohr (Mohr) signed an affidavit.  (Exhibit 7) Mohr is the Chief Appraiser for Respondent.  He received a call on June 22, 2018 requesting Complainant’s assessment for 2018.  He advised the caller the deadline to appeal was June 18, 2018.  He provided the assessment information in summary form to jmason4@ameren.com on June 22, 2018.  Mohr reviewed the contact information for Complainant.  Respondent’s Office has used the address of P.O. Box 66149, St. Louis, Missouri  63166 for correspondence with Complainant since at least 2012.

Exhibit 8 is a facsimile transmission from LaMacchia to the Boone County Clerk and is dated July 5, 2013.  It is Complainant’s appeal to the BOE from the 2013 assessment.  It instructs the clerk that the original appeal will be mailed and the contact information for Complainant is the P.O. Box 66149, St. Louis, Missouri  63166.

  1. Complainant’s Evidence. Complainant offered the following exhibits:
Exhibit Description
A CD recording of the BOE on July 20, 2018 regarding Complainant’s Request
B Subpoena served on Buchmann
C Impact Notice
E Request for Hearing in 2013
F Appeal August 7, 2013
G Impact Notices
H Extension of Deadline
I 2018 BOE Notes from June 4, 2018
J Subpoena to Assessor
K Letter

 

Respondent objected to Exhibits D, L, M, N, O and P as to relevance.  The objections were sustained.

Buchmann testified for Respondent.  She is the secretary for the BOE.  The appeal to the BOE in 2018 was initially filed by Joe La Macchia (LaMacchia) of Union Electric. The request for an extension to file an appeal out of time was made by counsel Tim Tryneicki. The hearing on the request to extend the time to file an appeal was scheduled by the BOE for July 20, 2018 and the BOE agenda was posted on July 16, 2008.  Her recollection was that the vote of the BOE was 4-2 to deny the extension.

Buchmann testified as to the process when an appeal is filed with the BOE.  When she receives an appeal to the BOE, she forwards a copy of the appeal to the Respondent.  Respondent contacts the property owner regarding their appeal. If Respondent and owner reach an agreement, a consent item is filed with the BOE.  If a hearing is necessary, she will include the item on the agenda and post the agenda according to Missouri law for meeting notices.  Respondent notifies the property owner of the date and time of the hearing.

Buchmann identified Exhibit I.  Exhibit I is the Agenda for June 4, 2018 BOE meeting, her handwritten notes from the meeting and a copy of a sample appeal form. Her notes state that the Impact Notices were mailed by the Respondent three weeks prior to the June 4, 2018 meeting and the Impact Notices included the June 18, 2018 deadline.  The appeal form also included the June 18, 2018 deadline.  Buchmann identified Exhibit C as the Agendas of the BOE for 2018.  She stated that the BOE met on the following dates in 2018:  June 4, July 20, July 27[1], August 13, August 20, September 24, October 23 and December 31.

Buchman was asked to identify Exhibit G.  Exhibit G consists of the Impact Notices from 2013 mailed to Complainant at P.O. Box 66149, St. Louis, Missouri  63166.  The Impact Notices provided the deadline to appeal of July 8, 2013.  In 2013, Complainant filed an appeal.  On July 10, 2013, Respondent requested Complainant’s appeal to the BOE be held on July 31 and for the secretary of the BOE to notify Complainant.  Buchmann notified Respondent that Complainant could not attend July 31, 2013 but could attend August 7, 2013.  Respondent agreed to the August 7, 2013 hearing date.  Notice of the hearing was mailed to LaMacchia at the P.O. Box 66149, St. Louis, Missouri  63166 address. (Exhibit F)

Buchmann identified Exhibit H.  Exhibit H are emails dated May 25, 2017.  The initial email was sent from her email address.  The email, although sent from her email address, was from the BOE Chair Dan Atwill.  He was requesting the BOE extend the deadline for filing appeals to the BOE in 2017 until Monday, July 3, 2017, “so that [Respondent] can pre-print [Impact Notices] with the new, extended deadline on them.”  The additional emails of Exhibit H are votes of the members approving the extension of the deadline in 2017.

Respondent was called to testify on behalf of Complainant.  Exhibit J is a copy of the subpoena for him to appear at the hearing.  He testified that he did not discuss the rejection of Complainant’s appeal to the BOE by the BOE’s secretary on July 3, 2018 with anyone,

Respondent identified Exhibit K, a letter dated March 29, 2018 from Complainant to Respondent informing Respondent’s Office they completed Schedules 14 -16[2] as to their Natural Gas Distribution properties.  The letter set forth the contact address of Complainant as P.O. Box 66149, St. Louis, Missouri  63166.  Respondent identified Mohr as the employee that appraises Complainant’s properties.  Respondent’s office valued the property based upon the filings, including original cost, reported by Complainant.

Respondent testified the parcel numbers assigned to Complainant’s properties are based upon a GIS code and taxing district as designated by Complainant.  Complainant informed him that they are unable to provide the location of the pipeline and related property due to security concerns.  Complainant designated the property to be included with each parcel number.  The GIS/ geo coded parcel designation has been used for several years.

Respondent testified that his office completed assessments in 2018 earlier in the calendar year then prior assessment years.  Due to the completion of assessments early in 2018, there was no need to request that the BOE extend the statutory deadline for filing appeals with the BOE.

Respondent testified that as a non-voting member of the BOE he was present for the July 20, 2018 BOE meeting.  He opposed the extension.  He testified that he does not favor extensions for individual property owners stating that any extension of the BOE deadline should be available to all property owners in the County.  Respondent testified that at the June 20, 2018 meeting he informed BOE members as to Complainant’s 2013 appeal. He informed them that tax monies are held in escrow while appeals are pending.  He also informed them of the status of 2013 appeals of Complainant with other counties.

Respondent was questioned about the 2013 assessment process.  He confirmed that the deadline to appeal to the BOE was extended to July 8, 2013.  He stated the reason for the extension of the deadline in 2013 was due to the Impact Notices not being mailed until early June 2013.  Respondent testified as to his Impact Notices from 2013.  His 2013 notices included the language:

NOTICE TO TAXPAYER:  IF YOUR ASSESSED VALUE HAS INCREASED, IT MAY INCREASE YOUR REAL PROPERTY TAXES WHICH ARE DUE DECEMBER THIRTY-FIRST.  IF YOU DO NOT AGREE THAT THE VALUE OF YOUR PROPERTY HAS INCREASED, YOU MUST CHALLENGE THE VALUE ON OR BEFORE MONDAY, JULY 8, 2013 BY CONTACTING YOUR COUNTY ASSESSOR.

Tom Carron testified on behalf of Complainant.  He is employed by Complainant and his work involves ad valorem taxation.  He testified he had no contact with Respondent after filing Complainant’s returns on March 29, 2018.  Although his work is primarily with the electric property of Complainant, he receives all mail regarding ad valorem taxation and distributes the mail to the appropriate party.  He testified that did not receive any Impact Notices.

LaMacchia testified on behalf of Complainant.  He testified that he is in contact with assessors regularly as he handles the ad valorem taxation of gas distribution property of Complainant.  He testified that he did not receive Impact Notices in 2017 or 2018 for Complainant.  He stated that Jacob Mason (Mason), an intern with Complainant, telephoned Respondent’s Office regarding Ameren’s 2017 assessment on June 15, 2017.  After the call, he receive a summary of Complainant’s assessment.  He stated that Mason telephoned Respondent’s Office regarding Ameren’s 2018 assessment on June 22, 2018.  He received a summary of Complainant’s assessment after Mason contacted Respondent.  He testified that he cannot identify the property by the parcel numbers assigned.

CONCLUSIONS OF LAW AND DECISION

Boone County is a First Class County

            Section 137.325 provides that Sections 137.325 to 137.420 are applicable to first class counties.  Boone County, Missouri is a first class county and therefore Sections 137.325 to 137.420 are applicable to the assessment of property, Impact Notices, and appeals to the BOE in Boone County.

Notice of Increase

            The assessor is required to notify the owner of property with any increase of the valuation.  The notifications are often referred to as “impact notices.”  The assessor is required to notify the owner in person, by mail to the last known address, or by publication if the owner’s address is unknown.  In first class counties, the notification is to be made on or before June 15th.  The notice is to be “in no less than twelve-point font” and the statute requires specific language:

NOTICE TO TAXPAYER:  IF YOUR ASSESSED VALUE HAS INCREASED, IT MAY INCREASE YOUR REAL PROPERTY TAXES WHICH ARE DUE DECEMBER THIRTY-FIRST.  IF YOU DO NOT AGREE THAT THE VALUE OF YOUR PROPERTY HAS INCREASED, YOU MUST CHALLENGE THE VALUE ON OR BEFORE ______ (INSERT DATE BY WHICH APPEAL MUST BE FILED) BY CONTACTING YOUR COUNTY ASSESSOR.

Respondent mailed 3,342 Impact Notices, including 20 Impact Notices to Complainant.  Complainant’s Impact Notices were mailed using the address P.O. Box 66149, St. Louis, Missouri  63166.  The Impact Notice were deposited with the U.S. Post Office in Columbia, Missouri on May 11, 2018.  The address used for the mailing of the Impact Notices to Complainant has been used by the County for ad valorem taxation of Complainant since at least 2013.

There is authority that the impact notice requirement is satisfied when such notice has been placed in the mail, whether or not received by the taxpayer. Buck v. Leggett, 813 S.W. 2d 872 (St. Ct. 1991); Peirson–Lathrop Grain Co. v. Barker(Mo.App.) 223 S.W. 941, loc. cit. 943; County Treasurer v. LaSalle–Lake Investors, 436 N.E.2d 40 (1982); Southern Tier Pizza Hut, Inc. v. Bailey, 113 Misc.2d 37, 448 N.Y.S.2d 406 (1982). Where the issue is submitted to the finder of fact, notice of an increase in assessed value can be found to have been received upon the basis of a presumption of delivery of mail, even though a taxpayer denies receipt. Hughes v. Estes, 793 S.W.2d 206 (Mo.App.1990). See also United Missouri Bank of Kansas City v. March, 650 S.W.2d 678 (Mo.App.1983).

Appeals to BOE

            For first class counties, appeals to the Board of Equalization are required to be in writing, on forms furnished by the county clerk, and filed with the county clerk. The county clerk acts as secretary to the Board of Equalization.  Appeals are to be filed before the third Monday in June.  The Board of Equalization may, in its discretion, extend the time for filing appeals.  Section 137.385.

Boone County is a first class county.  The third Monday in June of 2018 was June 18, 2018.  Appeals to the BOE in Boone County in 2018 were due before the statutory deadline of the third Monday in June or before June 18, 2018.  Complainant’s appeal was filed with the BOE on July 2, 2018.  The Appeal was filed after the statutory deadline.

Abuse of Discretion

Upon notice the appeal was not accepted by the clerk of the BOE, Complainant subsequently engaged counsel.  Counsel requested the BOE extend the deadline for filing appeals.  The BOE denied the request on July 20, 2018.  An appeal was filed with the STC prior to the deadline for filing appeals with the STC of September 30.  Respondent moved for a dismissal.

The issue is whether the BOE abused its discretion by not extending the statutory deadline to file appeals in 2018.  Abuse of discretion occurs when the determination is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate lack of careful consideration.

In Lake St. Louis Community Ass’n v. State Tax Com’n, 759 S.W.2d 843 (St Ct. 1988), property within the county was deemed exempt by the assessor prior to 1986.  In March or April 1986, the owner of the property received Impact Notices on four parcels.  The owner, prior to the third Monday in June 1986, inquired as to the tax status of the properties.  The owner subsequently received a letter from the assessor dated June 24, 1986 stating that the property would be exempt from ad valorem taxation in 1986.  In November, 1986, the owner received tax bills on the property.  The owner inquired with the assessor and was informed that the assessor had changed its mind regarding the exemption.  On January 15, 1987, landowner requested reconsideration.  On January 20, 1987, the owner was notified that the assessor would not reconsider.  In May, 1987, the owner filed a request with the BOE for extension to file an appeal of the 1986 assessments.  On June 1, 1987, the BOE denied the request.  The owner filed an appeal with the STC on July 1, 1987.  The STC rejected the appeal on the ground that the appeal was not filed with the BOE in 1986 and that appeals to the STC were due August 15 or within 30 days of the BOE decision within the year of the assessment.

The Court found the BOE abused its discretion.  The Court stated that the BOE had authority to extend the time for filing an appeal.  The deadline to file with the BOE, the third Monday in June, could not be met by the owner because of the actions of the assessor. Under these circumstances, the BOE abused its discretion by denying the request for extension.  Id, p. 846.  The Court, in its decision, stated that they have been quite strict in requiring taxpayers to follow the statutory plan for review of assessments when the taxing authorities have complied with all procedural requirements. However, in these circumstances, enforcing the statutory plan would have required the taxpayer to do the impossible.  The Court also stated that their decision would “impose no burden on taxing authorities who follow the statutes and make their positions clear to taxpayers.”

In Gateway Hotel Management, Inc. v. Board of Equalization, 100 S.W.3d 149 (2003) (Ct of App, ED), the assessor increased the value of the subject property in 2001.  The deadline for filing appeals was before the third Monday in June.  In October 2001, the Board of Equalization extended the time for filing appeals for owners of residential properties whose assessment increased by at least 17%.  Taxpayer filed an appeal, as to their commercial property, with the Board of Equalization on November 5, 2001.  On November 20, 2001, the Board of Equalization rejected the appeal as being filed out of time.  Taxpayer sought relief from the Courts.  The Court found that Boards of Equalization may extend the deadline to individual or certain classes of taxpayers.  The Court further found that the Board of Equalization did not abuse its discretion in denying taxpayer an extension to file an appeal.  The Court found nothing in the record to indicate the taxpayer could not have filed its appeal before the third Monday in June.  Id, p. 152

No action by Respondent caused delay or thwarted Complainant’s opportunity to appeal to the BOE before the statutory deadline.

STC Jurisdiction

BOE and STC have only such powers and jurisdiction as is specified in applicable statutes.  The STC’s jurisdiction is derivative from BOE when it reviews appeals from the BOE.  Armstrong-Trotwood, LLC v. STC, 516 S.W.3d 830 (S. Ct. 2017) 837   Since the BOE did not extend their deadline for filing appeals and Complainant did not file by the BOE deadline, the STC does not have jurisdiction to hear the appeal.

ORDER

            Respondent’s Motion to Dismiss is sustained as the STC lacks jurisdiction to hear the appeal.

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, or emailed to Legal@stc.mo.gov, and a copy of said application must be sent to each person 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 Boone 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 April 10th, 2019.

 

STATE TAX COMMISSION OF MISSOURI

 

Maureen Monaghan

Chief Counsel

Certificate of Service

I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 10th day of April, 2019, to: ttryniecki@armstrongteasdale.com; cdykhouse@boonecountymo.org.

 

Jacklyn Wood

Legal Coordinator

 

[1] The Meeting scheduled for July 27 was canceled on July 24, 2018.

[2] Schedules 14-16 are STC Forms for Distributable Properties that are centrally assessed at the STC.  Natural Gas Distribution pipelines are not centrally assessed by the STC.