State Tax Commission of Missouri
WEBER CHEVROLET,)
Complainant,)
v. ) Appeal No.10-10423 & 10-10424
JAKE ZIMMERMAN, ASSESSOR,)
ST. LOUIS COUNTY, MISSOURI,)
Respondent.)
ORDER
AFFIRMING HEARING OFFICER DECISION
UPON APPLICATION FOR REVIEW
On March 6, 2013, Hearing Officer W. B. Tichenor entered his Decision and Order (Decision) setting aside the assessment by the St. Louis County Board of Equalization
Respondent filed an Application for Review of the Decision on April 5, 2013.Complainant filed its Response on May 9, 2013.Respondent replied on June 13, 2013.
CONCLUSIONS OF LAW
Standard Upon Review
A party subject to a Decision and Order of a hearing officer with the State Tax Commission may file an application requesting the case be reviewed by the Commission.The Commission may then summarily allow or deny their request.The Commission may affirm, modify, reverse or set aside the decision.The Commission may take any additional evidence and conduct further hearings. [1]
Respondent’s Claims of Error
Respondent puts forth the following alleged error(s) in the Decision:
1. The Hearing Officer erred in his application of standard of proof and presumptions in a case before the State Tax Commission; and
2. The Hearing Officer erred in finding the square footage of the building was 53,612 square feet.
Discussion and Rulings
Gross Building Area
The Hearing Officer found that the gross building area for the subject property improvements was 53,612 feet2.The certified general appraiser for the Complainant testified that the gross building area was 53,612 square feet and reported the same in his appraisal.The appraiser determined the square footage from the building plans of the improvement that a construction foreman had when the appraiser was conducting an on-site inspection.
Respondent argues that failure of the appraiser to confirm the square footages makes such testimony unreliable.Respondent concedes that building plans and blueprints are appropriate source documents for an appraiser but he argues that the source documents must be presented before the appraiser’s testimony can be considered substantial and persuasive on the issue.
“The facts or data in a particular case upon which an expert bases an opinion or inference …. and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.”[2]The evidence met the foundational requirements of the statute.Further, 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.[3]
Burden of Proof
Respondent claims err based upon a misapplication of the presumption of correct assessment and misallocation of the burden of proof.In cases before the State Tax Commission, there is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[4]The Assessor determined true value of the subject properties to be $6,990,800.The Board of Equalization reduced the true values to $6,796,300.The presumption of correct assessment is rebutted when the taxpayer presents substantial and persuasive evidence to establish that the Board’s valuation of $6,796,300 is erroneous and what the fair market value should have been placed on the property.[5]
The Hearing Officer held the taxpayer to the burden of producing substantial and persuasive evidence and detailed the evidence that he found to be substantial and persuasive in reaching his conclusions that not only was the County’s valuation incorrect but also in his determination of true value of the subject property.The Hearing Officer stated that the “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.”[6]The Hearing Officer found that the Complainant’s expert based his opinion on the types of facts and data reasonably relied upon by experts, the appraisal was developed in conformity with USPAP, and that the appraisal was substantial and persuasive evidence presented by Complainant to overcome the presumption of correct assessment and meet the burden of proof.
DECISION
A review of the record in the present appeal provides support for the determinations made by the Hearing Officer.There is competent and substantial evidence to establish a sufficient foundation for the Decision of the Hearing Officer.A reasonable mind could have conscientiously reached the same result based on a review of the entire record. The Commission finds no basis to support a determination that the Hearing Officer acted in an arbitrary or capricious manner or abused his discretion as the trier of fact and concluder of law in this appeal.[7]
The Hearing Officer did not err in his determinations as challenged by Complainant.
ORDER
The Commission upon review of the record and Decision in this appeal, after a majority vote, finds no grounds upon which the Decision of the Hearing Officer should be reversed or modified.Accordingly, the Decision is AFFIRMED.[8]The Decision and Order of the Hearing Officer, including the findings of fact and conclusions of law therein, is incorporated by reference, as if set out in full, in this final decision of the Commission.
Judicial review of this Order may be had in the manner provided in Sections 138.432 and 536.100 to 536.140, RSMo within thirty days of the mailing date set forth in the Certificate of Service for this Order.
If judicial review of this decision is made, any protested taxes presently in an escrow account in accordance with this appeal shall be held pending the final decision of the courts unless disbursed pursuant to Section 139.031.8, RSMo.
If no judicial review is made within thirty days, this decision and order is deemed final and the Collector ofCounty, as well as the collectors of all affected political subdivisions therein, shall disburse the protested taxes presently in an escrow account in accord with the decision on the underlying assessment in this appeal.
SO ORDERED August 14, 2013.
STATE TAX COMMISSION OF MISSOURI
Bruce E. Davis, Chairman
Victor Callahan, Commissioner
DECISION AND ORDER
HOLDING
Decisions of the St. Louis County Board of Equalization sustaining the assessments made by the Assessor are SET ASIDE.Complainant presented substantial and persuasive evidence to rebut the presumption of correct assessment by the Board of Equalization.
True value in money for the subject property in Appeal 10-10423 for tax year 2010 is set at $5,050,500, commercial assessed value of $1,616,160.
True value in money for the subject property in Appeal 10-10424 for tax year 2010 is set at $499,500, commercial assessed value of $159,840.
Complainant appeared by Counsel, Thomas W. Rynard, Blitz, Bardgett & Deutsch, LC, Jefferson City, Missouri.
Respondent appeared by Associate County Counselor, Edward Corrigan.
Case heard and decided by Senior Hearing Officer W. B. Tichenor.
ISSUES
Complainant appealed, on the ground of overvaluation and discrimination, the decision of the St. Louis County Board of Equalization, which reduced the value of the property in Appeal 10-10423 and sustained the valuation of the property in Appeal 10-10424.The Commission takes this appeal to determine the true value in money for the subject properties on January 1, 2010.[9]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.
2.Evidentiary Hearing.The Evidentiary Hearing was held on July 10, 2012, at the St. Louis County Government Center, 41 South Central Avenue, Clayton, Missouri.
3.Briefs of Parties.Parties requested to file briefs at the conclusion of the evidentiary hearing.Complainant’s Brief on Valuation Evidence was received by the Commission on 10/15/12.Respondent’s Brief was received by the Commission on 11/19/12.Complainant’s Reply Brief on Valuation Evidence was received by the Commission on 12/6/12.
4.Subject Properties.The subject property in Appeal 10-10423 is identified by locator number 17O540254.The subject property in Appeal 10-10424 is identified by locator number 17O520212.The two properties are located at 12015 Olive Boulevard, Creve Coeur, Missouri.The properties are operated as a single economic unit and will hereafter generally be referred to in the singular in the Decision.The subject property is improved as an auto dealership with two buildings and other amenities supporting the property’s development as it existed on 1/1/09 and 1/1/10.Detailed descriptions of the property can be found in the appraisals received into evidence on behalf of each party.[10]
5.Gross Building Area.The gross building and gross leasable area of the subject is 53,612.[11]See, Determination of Gross Building Area, infra.
6.Assessment.The Assessor assessed the properties as follows:[12]
Appeal 10-10423:Appraised value – $6,379,900, assessed commercial value – $2,041,570;
Appeal 10-10424:Appraised value – $610,900, assessed commercial value – $195,490.
The Board of Equalization reduced the appraised value of the property in Appeal 10-10423 to $6,185,400, assessed commercial value of $1,979,330, and sustained the Assessor’s assessment for the property in Appeal 10-10424.[13]Therefore, the value being appealed for the subject property is $6,796,300, commercial assessed value of $2,174,820.
7.Allocation of Value.The property in Appeal 10-10423 comprised 91% of the combined appraised values of the two properties.[14]The property in Appeal 10-10424 comprised 9% of the combined appraised values of the two properties.[15]
8.Complainant’s Evidence.The following evidence was received into evidence on behalf of Complainant.
|
EXHIBIT |
DESCRIPTION |
|
A |
|
|
B |
Appraisal – P. Ryan McDonald |
|
C |
Written Direct Testimony – P. Ryan McDonald |
Mr. McDonald also testified at hearing on the issue of overvaluation.[17]
There was no evidence of new construction and improvement from January 1, 2009, to January 1, 2010, therefore the assessed value for 2009 remains the assessed value for 2010.[18]
Complainant’s evidence standing alone was substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the value proposed by Exhibit B.
9.Respondent’s Evidence.The following evidence was received into evidence on behalf of Respondent:
Exhibit 1 as filed with the Commission advocated a value of $7,000,000, under both the cost and sales comparison approached.The evidence was only received to sustain the Assessor’s original values combined of $6,990,800.See, Evidence of Increase in Value, infra.
Mr. Smith also testified at hearing on the issue of overvaluation.[20]During the course of the evidentiary hearing, under cross-examination, Mr. Smith made a correction to the value concluded under the sales comparison approach and reduced it to $6,870,000.No change in the final opinion of value was made.Therefore, the evidence under the Respondent’s sale comparison can be considered to support a value of $6,870,000.Evidence of value under Respondent’s cost approach can only be considered to sustain the assessed value of $2,237,060 for the properties combined and not to increase combined true value in money above $6,990,800.
10.Discrimination Claim Abandoned.No evidence was presented addressing the claim of discrimination.Therefore, the ground for appeal was deemed to have been abandoned at hearing.[21]
11.True Value in Money of Subject Property.The true value in money of the subject property for the 2010 tax year is $5,550,000, commercial assessed value of $1,776,000.See, Complainant Proves Value of $5,550,000, infra.
12.Individual Values.The property in Appeal 10-10423 comprised 91% of the combined appraised values of the two properties. Therefore, its true value in money is $5,050,500, assessed commercial value of $1,616,160.The true value in money of the property in Appeal 10-10424 is $499,500 assessed commercial value of $159,840.
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.[22]
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.[23]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.[24]Commercial property is assessed at thirty-two percent of its true value in money.[25]Real property is valued as of January 1, of each odd numbered year and that value remains the same for the following even numbered year in the absence of any new construction and improvement.[26]Accordingly, in this instance the value to be determined is as of 1/1/09.Both appraisers valued the property as of said date.[27]
Presumption In Appeals
There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[28]This presumption is a rebuttable rather than a conclusive presumption.It places the burden of going forward with some substantial evidence on the taxpayer – Complainant.When some substantial evidence is produced by the Complainant, “however slight”, the presumption disappears and the Hearing Officer, as trier of fact, receives the issue free of the presumption.[29]The presumption is not evidence of value.
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.[30]
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[31]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.[32]
The submission of the appraisal report, performed by a state certified real estate appraiser, established prima facie that the Board’s value was in error.The appraisal provided substantial and persuasive evidence upon which the Hearing Officer could conclude fair market value.The McDonald appraisal and supporting testimony, written direct and testimony at hearing was sufficient to establish the value proposed of $5,550,000.
Statutory Prohibition as to Assessor Presumption
Counsel for Respondent in his Brief asserts, “In Missouri, a tax assessor’s valuation is presumed correct.”[33]By statute in hearings before the Commission, there is no presumption that the assessor’s valuation is correct.[34]The amendment establishing this mandate was enacted in 1992.[35]The cited source by the Snider Court for its conclusion put forth by Counsel for Respondent was the case of Hermel, Inc. v. State Tax Commission.[36]The Hermel decision was entered in 1978.Therefore, the court finding of the assessor’s presumption has been set aside by the legislative enactment in 1992.The Hearing Officer, by statute, cannot proceed to a decision under the court established presumption in light of the clear mandate of section 138.431 RSMo.There is no presumption in this case that the Assessor’s values for either property was correct.To the extent that the Commission or a Court might determine otherwise, Complainant’s evidence was substantial and persuasive to rebut any such presumption and establish value.
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.[37]True value in money is defined in terms of value in exchange and not value in use.[38]It is the fair market value of the subject property on the valuation date.[39]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.[40]
Both appraisers concluded their respective opinions of value under the Standard For Valuation.[41]
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.[42]In this instance, the evidence presented on behalf of Complainant was sufficient to tip the scales to both rebut the presumption of correct assessment by the Board and to establish the true value in money for the subject property.
Trier of Fact
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.[43]
Complainant presented as its expert witness P. Ryan McDonald, MAI.Mr. McDonald holds appraiser licenses in ten states besides Missouri.Integra Realty Resources, for whom the appraiser serves as the Managing Director for the St. Louis office, offers comprehensive property valuation services with sixty-three independently owned and operated offices in thirty-two states.Integra has provided property valuation services for a large number of entities in a variety of commercial and governmental areas.Mr. McDonald has had a number of assignments involving various types of properties.He has extensive appraisal experience in the St. Louis metropolitan area.Specifically, the appraiser has previously performed up to ten appraisals on automobile dealership properties in St. Louis and the Midwest.[44]
The Hearing Officer has concluded that the education, training and experience possessed by Mr. McDonald qualified him to provide expert testimony in this appeal.Furthermore, the appraisal developed by Mr. McDonald and his testimony in support and explanation thereof, was of sufficient quantity and quality as to be given significant deference and weight in concluding the fair market value of the subject property.
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.[45]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.[46]
Mr. McDonald elected to develop all three of the recognized approaches to value.[47]Mr. Smith concluded that only the cost and sales comparison approaches were appropriate for the valuation problem.[48]The conclusion of value by Mr. McDonald placing equal weight on the cost and sales comparison approaches with minimal weight given to the income approach is persuasive.[49]
Opinion Testimony by Experts
If specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert on that subject, by knowledge, skill, experience, training, or education, may testify thereto.
The facts or data upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reliable, the facts or data need not be admissible in evidence.[50]
The facts and data upon which Mr. McDonald based his opinion were of the type reasonably relied upon by experts in the appraisal of real property to arrive at a conclusion of value.The facts and data were otherwise reliable for the performance of the appraisal problem.[51]The McDonald appraisal was developed in conformity with the Uniform Standards of Professional Appraisal Practice (USPAP).[52]
Determination of Gross Building Area
The critical factual difference between the McDonald and the Smith appraisal rested upon the size of the subject improvements.Complainant’s appraiser determined the gross building area to be 53,612 square feet.The gross building area utilized by Respondent’s appraiser was 60,792.Mr. McDonald derived his square footage for the gross building area based upon the blueprints/building plans of the improvements that were provided to the appraiser during his on-site inspection.[53]No objection was lodged as to the testimony of Complainant’s appraiser relative to the building area.[54]No evidence was presented that rebutted the evidence on this point presented by Complainant’s witness.
Mr. Smith in his direct testimony describes the subject improvements as having 60,792 square feet of area.[55]His appraisal also provides this same figure.[56]No source is provided as to how Respondent’s appraiser derived the gross building area for the subject improvements.The unverified and unsubstantiated conclusion of appraiser Smith does not rebut the area confirmed by Mr. McDonald from the blueprints/building plans.
The determination of the gross building area comes down to weighing the testimony and evidence of one witness who concluded the area based upon the blueprints/building plans of the improvements, and weighing a determination from a totally unknown source.In such a circumstance, no weight can be given to the Smith conclusion of value from an unknown source.Probative weight can only be derived from the McDonald conclusion founded upon the blueprints/building plans.Building plans constitute substantial information to establish the area of a building.This is exactly the type of data and facts that an appraiser is permitted to rely upon in drawing conclusions and forming opinions.[57]Accordingly, the gross building area for purposes of appraising the property is 53,612.
Complainant Proves Value of $5,550,000
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.[58]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.”[59]A valuation which does not reflect the fair market value (true value in money) of the property under appeal is an unlawful, unfair and improper assessment.
Complainant has met its burden of proof in this appeal.The appraisal evidence, supported by the McDonald testimony, meets the required standard.The fair market value of Complainant’s property as of January 1, 2009, was $5,550,000.
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.[60] The initially evidence presented by the Respondent advocated a fair market value of the property under appeal, as of January 1, 2009, to be $7,000,000.However, under the Commission rule just cited and Supreme Court decision[61] the assessed value cannot be increased above $2,237,060, the combined assessed values under the Assessor’s original assessments.
Respondent’s Proffered Value Not Relevant
The value of Respondent’s appraiser of $7,000,000 is not relevant due to the fact that Mr. Smith developed both his cost and sales comparison approaches to value based upon a gross building area that was 7,180 square feet larger than Complainant’s buildings.The value concluded is for a property that did not exist as of January 1, 2009.Accordingly, no weight can be given to the appraiser’s conclusion of value.
ORDER
The assessed valuations for the subject properties as determined by the Assessor and reduced for one property and sustained for the other property by the Board of Equalization for St. Louis County for the subject tax day are SET ASIDE.
The assessed value for the subject property In Appeal 10-10423 for tax year 2010 is set at: $1,616,160.
The assessed value for the subject property In Appeal 10-10424 for tax year 2010 is set at: $159,840.
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, 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 application for review is based will result in summary denial. [62]
Disputed Taxes
The Collector of St. Louis County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending 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 March 6, 2013.
STATE TAX COMMISSION OF MISSOURI
W. B. Tichenor
Senior Hearing Officer
[3] 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)
[4] 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)
[5] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959)
[7] Hermel, Inc. v. STC, 564 S.W.2d 888 (Mo. 1978); Black v. Lombardi, 970 S.W.2d 378 (Mo. App. E.D. 1998); Holt v. Clarke, 965 S.W.2d 241 (Mo. App. W.D. 1998); Smith v. Morton, 890 S.W.2d 403 (Mo. App. E.D. 1995); Phelps v. Metropolitan St. Louis Sewer Dist., 598 S.W.2d 163 (Mo. App. E.D. 1980)
[9] The true value in money for the properties as of January 1, 2010, is the value for the property under the economic conditions as of 1/1/09, in the absence of new construction and improvement during 2009.Section 137.115, RSMo.
[10] Exhibit B: General Information – Identification of Subject, p. 2; Property Analysis – Land Description and Analysis, pp. 24-27; Improvements Description and analysis, pp. 28-32
[12] Commercial property is assessed at 32% of its appraised value (true value in money, fair market value) – Section 137.115. 1, RSMo
[13] BOE Decisions filed with Complaints for Review of Assessment; See also, Exhibit B: Real Estate Tax Analysis, p. 33
[27] Exhibit B:Cover Page – Effective Date of the Appraisal; Transmission Letter – page 2 – Value Conclusion; Reconciliation and Conclusion of Value – Value Conclusion – Date of Value, p. 58;Exhibit 1: Cover Page; Purpose and Effective Date of the Appraisal, p. 6
[28] 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)
[29] United Missouri Bank of Kansas City v. March, 650 S.W.2d 678, 680-81 (Mo. App. 1983), citing to State ex rel. Christian v. Lawry, 405 S.W.2d 729, 730 (Mo. App. 1966) and cases therein cited.
[30] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959)
[31] See, Cupples-Hesse, supra.
Substantial and persuasive evidence is not an extremely high standard of evidentiary proof.It is the lowest of the three standards for evidence (substantial & persuasive, clear and convincing, and beyond a reasonable doubt).It requires a small amount of evidence to cross the threshold to rebut the presumption of correct assessment by the Board.The definitions, relevant to substantial evidence, do not support a position that substantial and persuasive evidence is an extremely or very high standard.
“Substantial evidence: Evidence that a reasonable mind would accept as adequate to support a conclusion; evidence beyond a scintilla.”Black’s Law Dictionary, Seventh Edition, p. 580.
The word scintilla is defined as “1. a spark,2. a particle; the least trace.” Webster’s New World Dictionary, Second College Edition.Black’s definition at 1347 is “A spark or trace <the standard is that there must be more than a scintilla of evidence>.”There must be more than a spark or trace for evidence to have attained the standard of substantial.Once there is something more than a spark or trace the evidence has reached the level of substantial.Substantial evidence and the term preponderance of the evidence are essentially the same.“Preponderance of the evidence.The greater weight of the evidence; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”Black’s at 1201.Substantial evidence is that a reasonable mind would accept as adequate to support the conclusion.Preponderance is sufficient to incline a fair and impartial mind to one side of the issue rather than the other, i.e. support the proposed conclusion.
[33] Respondent’s Brief: Legal Standards, citing to Snider v. Casino Aztar/Aztar Mo. Gaming Corp., 156 S.W.3d 324, 346 (Mo. banc 2005)
[35] Laws of Missouri, p. 549 – C.C.S.H.C.S.S.B. 630, inserting in 138.431.3 the following new language – “There shall be no presumption that the assessor’s valuation is correct.
[37] 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).
[38] 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).
[40] 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.
[41] Exhibit B: General Information – Definition of Market Value, pp. 2 – 3;Exhibit 1: Definition of Market Value, pp. 7 – 8
[42] 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).
[43] 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).
[45] 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).
[46] 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).
[47] Exhibit B:Cost Approach, pp. 37 – 44;Sales Comparison Approach, pp. 45 – 49; Income Capitalization Approach, pp. 50 – 57
[50] Section 490.065, RSMo; State Board of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. SC. 2004); Courtroom Handbook on Missouri Evidence, Wm. A. Schroeder, Sections 702-505, pp. 325-350; Wulfing v. Kansas City Southern Industries, Inc., 842 S.W.2d 133 (Mo. App. E.D. 1992).
[54] Tr. 3:20 – 25; Exhibit B: Identification of Subject, p. 2; Improvements Description and Analysis, p. 28; Exhibit C: Q & A 11; Q & A 28
[57] Counsel for Respondent’s argument based upon the blueprints not being offered into evidence is irrelevant.Respondent had fully opportunity to obtain the blueprints and building plans in discover and apparently either did not, or else did and the documents must substantiate the McDonald conclusion or else they would have been offered as rebuttal exhibits.
[59] 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).
[61] 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 S.W.3d 80, 87-88 (Mo 8/4/09)