State Tax Commission of Missouri
WHISPERING OAKS)
RESIDENTIAL CARE FACILITY LLC,)
)
Complainant,)
)
v.) Appeal Nos.09-10301 & 09-10302
)
MICHAEL BROOKS, ACTING ASSESSOR,)
ST. LOUIS COUNTY,MISSOURI,)
)
Respondent.)
DECISION AND ORDER
HOLDING
Decisions of the St. Louis County Board of Equalization reducing the assessment made by the Assessor are AFFIRMED.True value in money for the subject property in Appeal 09-10301 for tax years 2009 and 2010 is set at $153,900, residential assessed value of $29,240.True value in money for the subject property in Appeal 09-10302 for tax years 2009 and 2010 is set at $1,146,000, residential assessed value of $217,740.Complainant appeared by Counsel, Naren Chaganti.Respondent appeared by Assistant County Counselor, Carl W. Becker.
Case decided by Senior Hearing Officer W. B. Tichenor.
ISSUE
Complainant appeals, on the ground of overvaluation, the decisions of the St. Louis County Board of Equalization, which sustained the valuation of the property in Appeal 09-10301 and reduced the valuation of the property in Appeal 09-10302.The Commission takes these appeals to determine the true value in money for each property on January 1, 2009.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 these appeals is proper.Complainant timely appealed to the State Tax Commission from the decision of the St. Louis County Board of Equalization.
2.Assessment.The Assessor appraised the property in Appeal 09-10301 at $153,900, a residential assessed value of $29,240.The Board sustained the assessment. The Assessor appraised the property in Appeal 09-10302 at $1,653,800.The Board reduced the value to $1,146,000, a residential assessed value of $217,740.[1]
3.Subject Properties.The subject property in Appeal 09-10301 is located at 1447 Charic Dr., Wildwood, Missouri.The property is identified by locator number 25T210067.The subject property in Appeal 09-10302 is located at 1450 Ridge Rd., Wildwood, Missouri.The property is identified by locator number 25T210089.
4.Complainant’s Evidence. Pursuant to Commission Order,[2] Complainant prefiled the following exhibits.
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EXHIBIT |
DESCRIPTION |
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1 |
Summary Appraisal – John C. Hottle/Edward A. Fisher – 8/19/08 |
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2 |
Temporary Operating Permit, dated 10/3/08 – 6/30/09 |
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3 |
Primer for Discussion |
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4 |
Documents on Water Systems at subject facility |
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5 |
Appraisal Letter, dated 10/12/10 – Leslie C. Miller/John C. Hottle – 8/19/08 |
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6 |
Written Direct Testimony- Leslie C. Miller |
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7 |
Written Direct Testimony – Naren Chaganti |
Respondent filed his Objections to and Motion to Strike Complainant’s Exhibits and Complainant’s Direct Testimony.Objections and Motion to Strike sustained.See, Ruling on Objections and Motion to Strike, infra.
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.[3]
Complainant’s evidence was not substantial and persuasive to rebut the presumption of correct assessments by the Board and establish the true value in money as of January 1, 2009, for the properties under appeal.See, Value Not Proven, infra.
5.Respondent’s Evidence.Respondent did not file any exhibits or written direct testimony.
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.[4]
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.[5]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.[6]In an overvaluation appeal, true value in money for the property being appealed must
be determined based upon the evidence on the record that is probative on the issue of the fair market value of the property under appeal.
Presumption In Appeals
There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[7]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.The presumption of correct assessment is rebutted when the taxpayer presents substantial and persuasive evidence to establish that the Board’s valuation is erroneous and what the fair market value should have been placed on the property.[8]Complainant failed to present substantial and persuasive evidence to rebut the presumption of correct assessment by the Board and establish the fair market value as of January 1, 2009 for the two properties under appeal.Accordingly, the presumption of correct assessment by the Board stands in each appeal.
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.[9]True value in money is defined in terms of value in exchange and not value in use.[10]It is the fair market value of the subject property on the valuation date.[11]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.[12]
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.[13]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.[14] Complainant failed to present an opinion of value which was based upon any recognized appraisal methodology.
Complainant’s Burden of Proof
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.[15]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.”[16]
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[17]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.[18]
As will be addressed in detail below, Complainant failed to submit substantial and persuasive evidence to establish the true value in money for either property under appeal.
Ruling on Objections and Motion to Strike
Counsel for Respondent raised objection to each of the exhibits and written direct testimony prefiled by Complainant and moved to strike same.[19]Counsel for Complainant filed his response to the objections and motion to strike.[20]The objections to the exhibits will be taken up in order as the Exhibits were renumbered by the Hearing Officer.[21]
Exhibit 1 – Hottle Appraisal Report
Exhibit 1 consists of the Summary Appraisal Report of the Healthcare Facility at 1450 Ridge Road, Ballwin, Missouri[22] prepared by John C. Hottle and Edward A. Fisher.[23]The appraisal was prepared for Southwest Bank of St. Louis, Missouri.The valuation date is
August 19, 2008.The conclusion of value for the land and improvements as of August 19, 2008, is $1,110,000.The appraisal makes no valuation of the property located at 1447 Charic Drive, Wildwood, Missouri, with Locator No. 25T210067.
Respondent objected to Exhibit 1 on the ground that there was no direct testimony filed from the author of the appraisal and therefore the requisite foundation and authentication was not established by Complainant for the admission into evidence of the appraisal report.[24]No written direct testimony by Mr. Hottle or Mr. Fisher was prefiled in accordance with the Commission Order for the filing and exchange of exhibits.Under the exchange of exhibits procedure followed by the Commission,[25] it is required that written direct testimony in question and answer form be filed as ordered.The written testimony is presented instead of oral direct testimony.The written testimony is to be as complete and accurate as if it were given orally.In the case of a party seeking to submit an appraisal report, the written direct testimony lays the foundation for admission into evidence of the appraisal.Therefore, in ordinary circumstances once the witness has been sworn in, he or she identifies and authenticates the written direct testimony and it may be received into evidence.The witness is then subject to cross-examination.
In this instance, Complainant attempted to have introduced into evidence an appraisal report without providing the written direct testimony of the appraiser, either Mr. Hottle or Mr. Fisher.Absent proper written direct testimony having been filed, neither Mr. Hottle nor Mr. Fisher may testify.The appraisal report is nothing but hearsay, without the foundation testimony of the appraiser who prepared it.Without the appraiser present to be cross-examined, the exhibit is not admissible.Complainant’s attempt to have a third party provide testimony for the admission of Exhibit 1 will be addressed below.
Respondent’s objection on the ground of lack of foundation and authentication by the individual who prepared Exhibit 1 is sustained.Exhibit 1 is stricken.[26]
Exhibit 2 – Temporary Operating Permit
Exhibit 2 is a copy of a Temporary Operating Permit for a Residential Care Facility with an effective date of 10/3/08 and an expiration date of 6/30/09.[27]The license is to Whispering Oaks RCF Management Company, Inc.
Respondent objected on the ground of lack of authentication, foundation, relevance, and hearsay.No testimony providing the requisite authentication or foundation for admission into evidence was provided.The only reference to this document is in Exhibit 7 – written testimony by Counsel for Complainant – which purports that when the property was purchased, the “seller represented that the license to the facility was transferable to the new ownership; the Missouri Department of Health & Senior Services gave only a temporary operating permit and not a full license to operate the business as a residential care facility.”This is insufficient authentication and foundation for the exhibit.It is in itself simply hearsay and accordingly the document is hearsay likewise.Furthermore, the relevance of this as to what a willing buyer and seller would pay for the real property is not established.It is understood that any prospective purchaser on January 1, 2009, would most likely desire to operate the facility as a residential care facility.However, it is likewise understood that a license, temporary or otherwise, does not run with the land.Such a license is issued to the operator of the facility, which might or might not be the owner of the real estate.
Respondent’s objection on the ground of lack of foundation and authentication, relevance and hearsay is sustained.Exhibit 2 is stricken.[28]
Exhibit 3 – Primer for Discussion
Exhibit 3[29] was prepared by the Department of Planning of the City of Wildwood and is dated July 19, 2010.It is a compliance review of an Amended Conditional Use Permit involving the property at 1450 Ridge Road and 1441 Charic Drive.These are the two properties under appeal.The document is only referenced in the proffered testimony of Mr. Chaganti as support for his claim that the property was zoned for a skilled nursing facility and not a residential care facility.
Respondent objected on the ground of lack of authentication, foundation, relevance, and hearsay.No testimony was prefiled that would authenticate the numerous documents contained in the exhibit, or lay the requisite foundation by a person or persons who participated in the preparation of the Exhibit.It is unclear as to whether the Exhibit is actually a single document prepared by the Department of Planning of the City of Wildwood, or whether only parts of it were actually contained in the Primer for Discussion and other parts were simply added.There is no supporting testimony to establish the relevance of the document to the issue of the fair market value of the subject property on January 1, 2009.Absent authentication testimony the exhibit is hearsay.
Respondent’s objection on the ground of lack of foundation and authentication, relevance and hearsay is sustained.Exhibit 3 is stricken.[30]
Exhibit 4 – Documents on Water System
Exhibit 4[31] consists of a number of documents related to the water systems at Whispering Oaks Residential Care Facility.One document is dated October 12, 2010, and relates to projected costs for design and construction of a water system for Whispering Oaks Residential Care Facility.There was no testimony from Promod Kumar the professional engineer who signed the October 12th letter.It is unclear as to whether Mr. Kumar actually assembled all of the documents or if someone else compiled them.
Respondent objected on the ground of lack of authentication, foundation, relevance, and hearsay.Like Exhibits 1, 2 and 3 the failure of Complainant to provide written direct testimony from the author of the October 12th letter renders the proffered exhibit inadmissible.
Respondent’s objection on the ground of lack of foundation and authentication, relevance and hearsay is sustained.Exhibit 4 is stricken.[32]
Exhibit 5 – Letter of Leslie C. Miller and John C. Hottle
Exhibit 5 is a two page letter dated October 12, 2010, signed by Leslie C. Miller and John C. Hottle.It appears based upon the tendered written direct testimony of Leslie Miller, that she is the author of the letter.Furthermore, as noted above, there is no testimony of Mr. Hottle to substantiate what is presented in the exhibit.Ms. Miller, by this letter, attempts to amend or revise Exhibit 1 – the Hottle – Fisher appraisal.Ms. Miller’s letter purports to be an appraisal[33] of the property that is the subject of Appeal 09-10302.[34]The letter does not contain a Missouri Real Estate Appraiser license or certification number.It only identifies Ms. Miller as an Associate Appraiser.
Counsel for Respondent presented a number of objections to Exhibit 5.Notwithstanding the various objections asserted, a fundamental issue precludes the admission of Exhibit 5.It is unlawful for any person who is not licensed or certified by the Missouri Real Estate Appraisers Commission as provided in Sections 339.500 to 339.549, RSMo, to offer into evidence a real estate appraisal or appraisal report, before the Commission.[35] The Commission has been advised the Ms. Miller is not a licensed real estate appraiser in Missouri.[36]
Ms. Miller is not qualified to testify before the Commission. Exhibit 5 cannot be received into evidence.Exhibit 5 is stricken.[37]
Exhibit 6 – Written Direct Testimony of Leslie Miller
Exhibit 6 consists of three pages of questions and answers given as the written direct testimony of Leslie Miller.Respondent objected to various questions and answers contained in the exhibit.However, due to the fact noted above that Ms. Miller is not licensed or certified as a real estate appraiser in Missouri, she may not testify as to her appraisal of the property in Appeal 09-10302.[38]The exhibit does not contain a Missouri Real Estate Appraiser license or certification number.[39]
As with Exhibit 5, Exhibit 6 cannot be received into evidence since the witness is not qualified to testify before the Commission as to her appraisal of the property in Appeal 09-10302.Exhibit 6 is stricken.[40]
Exhibit 7 – Written Direct Testimony of Naren Chaganti
Exhibit 7 was filed as the written direct testimony of Naren Chaganti.Mr. Chaganti is the attorney for Complainant.In his testimony he purports to be the owner of the subject property and testifying in that capacity.
The Complaints for Review of Assessment declare that Whispering Oaks Residential Care Facility, LLC is the owner of the property in both appeals.There is no evidence that establishes Mr. Chaganti as a member, manager or officer in the LLC that would qualify him to testify as to an opinion of the fair market value of either property as an “owner.”Furthermore, Exhibit 3 showed that the property in Appeal 09-10301 was last purchased in October 2006 and that the name of the owner was CRAVIV, LLC.No evidence was presented that established that Mr. Chaganti has any position as member, manager or officer of this LLC.
Respondent objected to three questions and the answers provided.[41]The three questions were: (1) What are your qualifications?, (2) Why are you giving this testimony?, and (3) How do you arrive at a value of the property?
Qualifications Question
Respondent objected to Question (1) was on the ground of vagueness and ambiguity.The objection is well taken.The question did not specify qualifications to testify as an expert on valuation of real property or qualifications to establish the witness as holding a position with the LLC that would qualify him to render an owner’s opinion.
Respondent objected to the Answer on the grounds of relevancy, lack of foundation and authentication.The objection is well taken as to relevancy and lack of foundation.The answer provides information relative to the education and experience of the witness, however, none of the answer has any relevancy to education, training, or experience in appraising real property.It is void of any “qualifications” as to the appraisal of real property.Accordingly, it fails to establish a foundation upon which the witness can testify as an expert in the appraisal of real property.
The Question and Answer to “What are your qualifications” is stricken.[42]
Testimony Question
Respondent objected that the answer to this question was non-responsive and that the question and answer were in fact irrelevant.Objection is sustained.The question and resulting answer do nothing to move the inquiry forward on the issue of what a willing buyer and seller would have given for the properties under appeal on January 1, 2009.
The Question and Answer to “Why are you giving this testimony” is stricken.[43]
Value Question
Respondent objected to this question and answer due to it being in a narrative format, presented without leave of the Commission or good cause shown, contrary to 12 CSR 30-3.060(1).Objection was also made on the grounds of hearsay and speculation.The objections are well taken.The answer to this question covers two and a half pages.It should have been broken down in a question and answer form as required by the rule, instead of this lengthy narrative.Counsel for Respondent is correct that virtually the entire answer is hearsay and more hearsay, with various conclusions based upon mere speculation.The entire answer rests upon Exhibits 1, 2, 3 4 and 5 which have been stricken.Accordingly, the witness cannot testify to and rely upon these exhibits.Because the witness did not establish that he held a position as an officer, manager of member of the LLC, or LLCs which own the subject properties, he is not qualified to tender an opinion of the fair market value of the properties under appeal, accordingly, it is irrelevant how he arrived at his value.
Objections sustained.The Question and Answer to “How did you arrive at a value of the property” is stricken.[44]
Remaining Exhibit 7 Questions and Answers
Exhibit 7 consisted of only six Questions and Answers.Questions 2, 5 and 6 have been stricken.Question 1 simply asked for the witness’ name.Question 3 related to the “role” of the witness in the appeal.He purported that he was the owner and attorney.As noted above his claim to be owner is not accurate, since an LLC is the owner or owners.Question 4 simply identified that Mr. Chaganti was seeking to testify as the “owner.”None of this information provides an relevant information to find true value in money for the subject property.
Conclusion – Complainant’s Evidence
With the striking of Exhibits 1, 2, 3, 4, 5, 6 and all but 3 irrelevant questions in Exhibit 7, there is no evidence upon this record presented by Complainant that addresses the issue of the true value in money of the properties under appeal as of January 1, 2009.Complainant failed to make a prima facie case.
Chaganti’s Opinion of Value
Assuming without finding that Mr. Chaganti might be qualified to offer an “owner’s opinion” on behalf of the LLC which owns the subject properties, the Hearing Officer will address the lack of substance in the opinion of value tendered by his stricken testimony.The answer to Question 6 of Exhibit 7 shows that Mr. Chaganti gave his opinion of the fair market value of the properties under appeal as of January 1, 2009, to be $300,000.[45]This conclusion of value was based upon “…the valuation of the property given by the appraiser” and his incorporation of other factors.The other factors related to the water system, zoning, licensing of the facility and Mr. Chaganti’s estimate that prior to January 2, 2009, property values declined by 25 to 30%.
Mr. Chaganti provided no calculations or on what basis he deducted $810,000 from the valued concluded by the Hottle-Fisher appraisal to arrive at a value of only $300,000.That appraisal had concluded a value for the Land and Improvements of $1,110,000.Mr. Chaganti deducts $810,000 to arrive at his value of $300,000.However, there is no market data to support such a reduction in the appraised value.
Assuming that he relied upon the Miller appraiser in Exhibit 5, the concluded value for the Land and Improvements was $730,000.This was to account for the water system issue.Therefore, to get to $300,000, a deduction of $430,000 had to be made for the other factors cited by Mr. Chaganti.Here again, there is no demonstration as to what reductions and the basis for them might be.In short, this is nothing more than speculation on the part of Mr. Chaganti.He did not value the property under any recognized appraisal methodology.An owner’s opinion is without probative value where it is not based upon proper elements or a proper foundation.[46]
Even assuming that the testimony of Mr. Chaganti giving his opinion of value and the basis for it had been admissible into evidence, no probative weight could be given to that opinion, as it has no basis in sound appraisal practice.Furthermore, the opinion of value of $300,000 is based upon an appraisal that did not value the property in Appeal 09-10301.Both Exhibits 1 and 5 only valued the property in Appeal 09-10302.Mr. Chaganti’s conclusion of a value of only $300,000 because it was based upon Exhibits 1 and 5 provides no opinion of value as to the property on Charic Drive. No evidence was tendered which in any manner addressed what the fair market value of the property identified by locator number 25T210067 – Appeal 09-10301 would have been on January 1, 2009.
Motion for Summary Judgment
On November 26, 2010, Counsel for Complainant filed Complainant’s Motion for Summary Judgment and Statement of Uncontroverted Facts in Support of Motion for Summary Judgment.
On December 30, 2010, Counsel for Respondent filed Respondent’s Motion to Strike and/or Deny Complainant’s Motion for Summary Judgment.
On December 30, 2010, Counsel for Complainant filed Reply to Opposition to Motion for Summary Judgment.
On January 4, 2011, Counsel for Complainant filed Motion for Leave to File Additional Response in Support of Motion for Summary Judgment.
With the exclusion of Complainant’s exhibits upon the objections of Respondent, Complainant’s Motion for Summary Judgment has been rendered moot.The Motion was based on Exhibits which have been found to be lacking as admissible evidence and therefore must be denied.Addressing the merits of the Motion assuming that Complainant’s Exhibits were in fact part of the evidentiary record, the Motion would still be denied.
Rule 74.04(c)(1) requires that a Motion for Summary Judgment “state with particularity in separately numbered paragraphs each material fact as to which movant claims there is no genuine issue, with specific references to the pleadings, discovery, exhibits or affidavits that demonstrate the lack of a genuine issue as to such facts.”Emphasis added.Complainant simply offered broad and vague arguments which provided no particularity.Only broad references to exhibits by number without any specific references to the parts of the exhibits which might support the Complainant’s position were presented.
The failure of Complainant to comply with Rule 74.04(c)(1) is basis for denial of the Motion.Furthermore, a large number of the paragraphs of Complainant’s Motion contain inadmissible hearsay statements.Inadmissible hearsay statements will not support a motion for summary judgment.[47]Many of the other paragraphs in the Motion address matters that are not relevant to establishing the true value in money of the properties under appeal due to the lack of proper authentication and foundation.
The issue of the true value in money of each of the properties under appeal is still at issue.As addressed in detail above, Complainant failed to present any evidence with regard to the value of one property and the evidence tendered, but excluded, as to the value of the other property did not establish from a recognized appraisal approach the true value in money for the other property.Respondent is not required to present any evidence, but may simply rest upon the presumption of correct assessment by the Board of Equalization.Respondent is not the moving party, Complainant is.When Complainant fails to meet its burden of proof, the Board presumption stands and those values must be affirmed.
Evidentiary Hearing Cancelled
The evidentiary hearing set in this matter for 1:30 p.m., Thursday, January 13, 2011, at the St. Louis County Government Center, Clayton, Missouri is cancelled.
ORDER
Appeal 09-10301
The assessed valuation for the subject property in Appeal 09-10301 as determined by the Assessor and sustained by the Board of Equalization for St. Louis County for the subject tax day is AFFIRMED.
The assessed value for the subject property in Appeal 09-10301 for tax years 2009 and 2010 is set at $29,240.
Appeal 09-10302
The assessed valuation for the subject property in Appeal 09-10302 as determined by the Board of Equalization for St. Louis County for the subject tax day is AFFIRMED.
The assessed value for the subject property in Appeal 09-10301 for tax years 2009 and 2010 is set at $217,740.
Application for Review
Complainant may file with the Commission an application for review of this decision within thirty days of the mailing date set forth in the Certificate of Service.The application shall contain specific 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. [48]
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 January 6, 2011.
STATE TAX COMMISSION OFMISSOURI
_____________________________________
W. B. Tichenor
Senior Hearing Officer
Certificate of Service
I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 6thday of January, 2011, to:Naren Chaganti, 713 The Hamptons Lane, Town & Country, MO 63017, Attorney for Complainant; Carl Becker, Assistant County Counselor, County Government Center, 41 South Central Avenue, Clayton, MO 63105, Attorney for Respondent; Michael Brooks, Acting Assessor, County Government Center, 41 South Central Avenue, Clayton, MO 63105; John Friganza, Collector, County Government Center, 41 South Central Avenue, Clayton, MO 63105.
___________________________
Barbara Heller
Legal Coordinator
Contact Information for State Tax Commission:
Missouri State Tax Commission
301 W. High Street, Room 840
P.O. Box 146
Jefferson City, MO 65102-0146
573-751-2414
573-751-1341 Fax
[7] Hermel, Inc. v. STC, 564 S.W.2d 888, 895 (Mo. banc 1978); Chicago, Burlington & Quincy Railroad Co. v. STC, 436 S.W.2d 650, 656 (Mo. 1968); May Department Stores Co. v. STC, 308 S.W.2d 748, 759 (Mo. 1958)
[8] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959)
[9] 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).
[10] 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).
[12] 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.
[13] 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).
[14] 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).
[16] 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).
[19] Respondent’s Objections To and Motion To Strike Complainant’s Exhibits and Complainant’s Direct Testimony, Received by the Commission 12/10/10.
[20] Suggestions in Opposition to Assessor’s Objections and Motion to Strike Exhibits and Direct Testimony, Received by the Commission, 12/10/10.
[21] The Hearing Officer renumbered Complainant’s exhibits, making the Appraisal Exhibit 1, not Attachment A to Exhibit 1 as submitted by Counsel for Complainant.The document that was submitted as Exhibit 1 was renumbered Exhibit 5 and the document that was submitted as Attachment B to Exhibit 1 was renumbered Exhibit 4.
[22] This is the property in Appeal No. 09-10302, as the Locator Number given on the Complaint for Review of Assessment and that given in the Executive Summary Report of the Appraisal are the same, i.e. 25T210089.
[23] The submission on December 14, 2010, by Counsel for Complainant of the Curriculum Vitae and License of John Hottle does nothing to salvage Exhibit 1, since Mr. Hottle is not a witness in these proceedings, no written direct testimony of Mr. Hottle having been prefiled in the case.
[24] Respondent also objected to the Exhibit on the ground that the first nineteen pages of the Appraisal were not numbered.The unnumbered pages consisted of the cover letter (2 pages), photographs of the subject (10 pages), Special Assumptions and Limiting Conditions (3 pages), Executive Summary Report (1 page), Table of Contents (2 pages) and Exhibits (1 page).Counsel for Respondent misstates the Commission Rule (12 CSR 30-3.065(1) ) on appraisal pagination.Counsel asserted “An appraisal’s pages must be paginated.”Emphasis added.The Rule does not so state.The rule simply provides that the appraisal “should be” paginated.Furthermore, there is no provision for the exclusion of an appraisal on this basis.The objection on this ground is not well taken and is accordingly overruled.
[26] Exhibit 1 is maintained in the case file only as an offer of proof and not as evidence upon which a determination of value may be concluded.
[27] The address of the licensed facility is 1450 Ridge Road, Wildwood, Missouri, the property in Appeal 09-10302.There is no reference to the property at 1447 Charic Drive, Wildwood.
[28] Exhibit 2 is maintained in the case file only as an offer of proof and not as evidence upon which a determination of value may be concluded.
[29] The Exhibit consists of a number of various documents.There are a total of 57 pages in the Exhibit.
[30] Exhibit 3 is maintained in the case file only as an offer of proof and not as evidence upon which a determination of value may be concluded.
[31] The exhibit consists of a total of 30 pages (some copied on front and back) of what appears to be 14 different documents.
[32] Exhibit 4 is maintained in the case file only as an offer of proof and not as evidence upon which a determination of value may be concluded.
[33] An appraisal is an objective opinion or conclusion relating to the value of identified real estate.§339.503 (1)
[37] Exhibit 5 is maintained in the case file only as an offer of proof and not as evidence upon which a determination of value may be concluded.
[39] The following Question and Answer appears as the 3rd Q & A on page 1 of Exhibit 6:
“Q.Are you certified in any discipline, and if so, where and what certifications do you hold?
A.I am certified as a real estate appraiser in Missouri.”
The answer is not in fact a true statement.
[40] Exhibit 6 is maintained in the case file only as an offer of proof and not as evidence upon which a determination of value may be concluded.
[41] Counsel for Complainant failed to follow the Commission’s Order and number the Questions in the Written Direct Testimony.However, the Questions and Answers objected to by Respondent were Questions 2, 5 and 6.
[42] The Question and Answer 2 is maintained in the case file only as an offer of proof and not as evidence upon which a determination of value may be concluded.
[43] The Question and Answer 5 is maintained in the case file only as an offer of proof and not as evidence upon which a determination of value may be concluded.
[44] The Question and Answer 6 is maintained in the case file only as an offer of proof and not as evidence upon which a determination of value may be concluded.
[45] The Complaint for Review of Assessment in Appeal 09-10301 signed by Mr. Chaganti asserts a True Value for that property of $50,000.The Complaint for Review of Assessment in Appeal 09-10302 signed by Mr. Chaganti asserts a True Value for that property of $500,000.
[46] Cohen v. Bushmeyer, 251 S.W.3d 345, (Mo. App. E.D., March 25, 2008); Carmel Energy, Inc. v. Fritter, 827 S.W.2d 780, 783 (Mo. App. W.D. 1992); State, ex rel. Missouri Hwy & Transp. Com’n v. Pracht, 801 S.W.2d 90, 94 (Mo. App. E.D. 1990); Shelby County R-4 School District v. Hermann, 392 S.W.2d 609, 613 (Sup. 1965).