Wyneta Fishback v. Anthony Daniel, Assessor Clark County

December 4th, 2018

State Tax Commission of Missouri

WYNETA FISHBACK, )    
              Complainant, )    
  ) Appeal No. 18-51001 & 18-51002
v. )    
  )    
ANTHONY DANIEL, ASSESSOR, )    
CLARK COUNTY, MISSOURI, )    
               Respondent. )    

 

ORDER AFFIRMING

HEARING OFFICER DECISION UPON APPLICATION FOR REVIEW

 

HOLDING

            On December 4, 2018, Senior Hearing Officer John Treu (Hearing Officer) entered a Decision and Order (Decision) affirming the decision of the Board of Equalization of Clark County (BOE). Wyneta Fishback (Complainant) subsequently filed an Application for Review of Hearing Officer’s Decision and Order.  Anthony Daniel, Assessor of Clark County, Missouri (Respondent), filed a Response.

We AFFIRM the Decision and Order of the Hearing Officer.  Segments of the Hearing Officer’s Decision may have been incorporated into our Decision without further reference.

FACTS AND PROCEDURAL HISTORY

            The subject properties are residential properties located at 428 and 470 West Clark Street, Kahoka, Missouri.

Respondent set a true value in money (TVM) of the subject properties at $67,100 and $17,400.  Complainant appealed to the BOE.  The BOE affirmed the valuations.  Complainant appealed to the State Tax Commission (STC) on the issue of overvaluation and discrimination.  Complainant also alleged erroneous mapping and deeds.

An evidentiary hearing was conducted on November 15, 2018 at the Clark County Courthouse, Kahoka, Missouri. Complainant appeared at the Courthouse.  Complainant left the hearing room after announcing the proceedings were null and void and prior to presentation of evidence.  The Hearing Officer opened the hearing to accept evidence of valuation.  Respondent appeared and announced ready for trial.

The Hearing Officer issued his Decision and Order on December 4, 2018 affirming the BOE as Complainant failed to present substantial and persuasive evidence.

On January 4, 2019, Complainant submitted a letter stating she was appealing the Hearing Officer’s “ruling.”

CONCLUSIONS OF LAW

Complainant’s Points on Review

Complainant alleged the following:

  1. Erroneous maps[1] are being used and are hanging in the Recorder’s Office; and

 

  1. Twenty years ago there was an audit which found “a variety of violations” and unsound fiscal practices.

 

STC’s Ruling

            For the reasons that follow, the STC finds Complainant’s arguments to be unpersuasive.  The STC, having thoroughly reviewed the whole record and having considered the Hearing Officer’s Decision, the Application for Review of Complainant, and Respondent’s response opposing the Application for Review affirms the Hearing Officer’s decision.

 

Standard of Review

            A party to a Decision and Order of a Hearing Officer with the State Tax Commission (STC) may file an application requesting the case be reviewed by the STC.  Section 138.432 RSMo Cum. Supp. 2015 The STC may then summarily allow or deny the request.  Section 138.432.  The STC may affirm, modify, reverse, set aside, deny or remand to the Hearing Officer the Decision and Order of the Hearing Officer on the basis of the evidence previously submitted or based on additional evidence taken before the STC.  Section 138.432.

Presumption In Appeals

            There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization (BOE).  Hermel, Inc. v. STC, 564 S.W.2d 888, 895 (Mo. banc 1978).  This presumption is a rebuttable rather than a conclusive presumption.  The presumption of correct assessment is rebutted when the taxpayer presents substantial and persuasive evidence to establish that the BOE’s valuation is erroneous and what fair market value should have been placed on the property.  Id.

Complainant’s Burden of Proof

The taxpayer in a STC appeal bears the burden of proof. The taxpayer is the moving party seeking affirmative relief.  Therefore, the Complainant bears the burden of proving the vital elements of the case, i.e., the assessment was “unlawful, unfair, improper, arbitrary, or capricious.”   See, Westwood Partnership v. Gogarty, 103 S.W.3d 152 (Mo. App. E.D. 2003); Daly v. P.D. George Co., 77 S.W.3d 645 (Mo. App E.D. 2002); Reeves v. Snider, 115 S.W.3d 375 (Mo. App. S.D. 2003); Industrial Development Authority of Kansas City v. State Tax Commission of Missouri, 804 S.W.2d 387, 392 (Mo. App. W.D. 1991)Such must be proved by substantial and persuasive evidence.  Substantial evidence can be defined as such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Cupples Hesse Corp. v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).  Persuasive evidence is evidence that has sufficient weight and probative value to convince the trier of fact.  Cupples Hesse Corp., 329 S.W.2d at 702.  The persuasiveness of evidence does not depend on the quantity or amount thereof but on its effect in inducing belief.  Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975).

Discussion

            The taxpayer in a STC appeal bears the burden of proof. The taxpayer is the moving party seeking affirmative relief.  Therefore, the Complainant bears the burden of proving the BOE’s valuation is erroneous and what fair market value should have been placed on the property.

Complainant left the hearing room without presenting evidence.

At no time has Complainant presented any evidence establishing the true value of her properties on January 1, 2017.

ORDER

            The Decision of the Hearing Officer is AFFIRMED.  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 STC.

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 of Clark County, 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 this February 19, 2019

STATE TAX COMMISSION OF MISSOURI

 

Bruce E. Davis, Chairman

 

Victor Callahan, Commissioner

 

Will Kraus, Commissioner

 

Certificate of Service

I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 19th day of February, 2019, to: Complainant(s) and/or Counsel for Complainant(s), the County Assessor and/or Counsel for Respondent and County Collector.

 

Jacklyn Wood

Legal Coordinator

 

[1] Complainant attached maps to her Application for Review without explaining the evidentiary value.

STATE TAX COMMISSION OF MISSOURI

 

WYNETA FISHBACK )
)
              Complainants, )
)
v. ) Appeal No. 18-51001 & 18-51002
) Parcel No. 1-11-06-24-01-18-002.00
ANTHONY DANIEL,  ASSESSOR, ) & 1-11-06-24-01-18-004.00
CLARK COUNTY, MISSOURI, )
)
              Respondent )

 

DECISION AND ORDER

HOLDING

 

The decision of the Clark County Board of Equalization (BOE) is AFFIRMED.  Complainant Wyneta Fishback (Complainant) did not present substantial and persuasive evidence to rebut the presumption of correct assessments by the BOE.

SUMMARY

The evidentiary hearing in this case was scheduled to begin at 11:45 a.m., November 15, 2018, at the Clark County Courthouse in Kahoka, Missouri.  Complainant appeared for the evidentiary hearing[1] but failed to prosecute the appeal contending the evidentiary hearing was null and void.  Respondent Anthony Daniel, Assessor, Clark County, Missouri, (Respondent) appeared pro se, who announced ready for trial.  Case decided by Senior Hearing Officer John Treu (Hearing Officer).

ISSUE

Complainant appealed on the grounds of overvaluation and discrimination.  Complainant’s Complaints for Review asserted erroneous mapping and erroneous deeds in the city and county.  Respondent initially set the true value in money (TVM) of the subject properties at $67,100, as residential property, as of January 1, 2017 and $17,400, as residential property, as of January 1, 2017.  The BOE agreed the TVM of the subject properties to be $67,100 and $17,400, as of January 1, 2017.  The State Tax Commission (STC) takes these appeals to determine the TVM for the subject properties as of January 1, 2017.

The Hearing Officer enters the following Decision and Order.

FINDINGS OF FACT

  1. Jurisdiction over these appeals is proper. Complainant timely appealed to the STC.
  2. The subject properties are located at 428 West Clark and 470 West Clark, Kahoka, Clark County, Missouri. The properties are identified by Parcel/Locator number 1-11-06-24-01-18-002.00 and 1-11-06-24-01-18-004.00 respectively.
  3. By Order dated October 16, 2018, this case was set for evidentiary hearing on November 15, 2018 at 11:45 a.m. at the Clark County Courthouse, Kahoka, Missouri.
  4. Complainant appeared at the Clark County Courthouse. Complainant contended the evidentiary hearing was null and void, refused to participate in the evidentiary hearing, and left the courthouse prior to the opening of the record in this appeal.
  5. Respondent appeared at the evidentiary hearing pro se and announced ready for trial.

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, including the application of any abatement.  The Hearing Officer shall issue a decision and order affirming, modifying, or reversing the determination of the BOE and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious.  Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo.

Presumptions In Appeals

There is a presumption of validity, good faith, and correctness of assessment by the county board of equalization.  Hermel, Inc. v. STC, 564 S.W.2d 888, 895 (Mo. banc 1978); Chicago, Burlington & Quincy Railroad Co. v. STC, 436 S.W.2d 650, 656 (Mo. 1968); May Department Stores Co. v. STC, 308 S.W.2d 748, 759 (Mo. 1958).  In order to prevail, a complainant must rebut the presumption of correct assessment by presenting substantial and persuasive evidence as to the proper taxation of the subject property on the tax day at issue.  Hermel, 564 S.W.2d at 895; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).  There is no presumption that the taxpayer’s opinion is correct.  In an appeal before the Commission, the taxpayer still bears the burden of proof because the taxpayer is the moving party seeking affirmative relief.  Therefore, a complainant must prove by a preponderance of substantial and persuasive the evidence the vital elements of the case, i.e., the assessment was “unlawful, unfair, improper, arbitrary or capricious.”  See, Westwood Partnership v. Gogarty, 103 S.W.3d 152, 161 (Mo. App. E.D. 2003); Reeves v. Snider, 115 S.W.3d 375, 379 (Mo. App. S.D. 2003); Daly v. P. D. George Co., 77 S.W.3d 645, 648 (Mo. App. E.D. 2002); Industrial Development Authority of Kansas City v. State Tax Commission of Missouri, 804 S.W.2d 387, 392 (Mo. App. W.D. 1991).

 

ORDER

Although Complainant appeared she failed to prosecute the appeals and failed to present substantial and persuasive evidence to rebut the presumption that the BOE’s determination of the TVMs’ of the subject properties were correct.  Complainant contended the evidentiary hearing was null and void.

Because Complainant failed to prosecute the appeals and failed to present substantial and persuasive evidence to rebut the BOE presumptions, the BOE’s determinations of TVM of the subject properties are AFFIRMED.

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 grounds upon which it is claimed the decision is erroneous.  Said application must be in writing addressed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, MO 65102-0146, and a copy of said application must be sent to each person at the address listed below in the certificate of service.  Failure to state specific facts or law upon which the appeal is based may result in summary denial.  Section 138.432 RSMo 2000.

The Collector of Clark County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending a filing of an Application for Review, unless said taxes have been disbursed pursuant to a court order under the provisions of Section 139.031.8, RSMo 2000, as amended.

Any Finding of Fact that is a Conclusion of Law or Decision shall be so deemed.  Any Decision that is a Finding of Fact or Conclusion of Law shall be so deemed.

SO ORDERED December 4, 2018.

 

STATE TAX COMMISSION OF MISSOURI

 

John Treu

Senior Hearing Officer

 

Certificate of Service

I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 4th day of December, 2018, to: Complainants(s) counsel and/or Complainants, the County Assessor and/or Counsel for Respondent and County Collector.

 

Jacklyn Wood

Legal Coordinator

 

[1] Complainant appeared at the previous evidentiary hearing in Appeal No. 18-51000 in which Kristy Fishback was the Complainant.  Complainant left prior to the scheduled time for her evidentiary hearing, but also contended the evidentiary hearings were null and void.