State Tax Commission of Missouri
| YUE PAN, | ) | ||
| Complainant, | ) | ||
| ) | Appeal No. | 17-112793 | |
| v. | ) | Parcel/Locator No. | I00690302 |
| ) | |||
| JAKE ZIMMERMAN, ASSESSOR, | ) | ||
| ST. LOUIS COUNTY, MISSOURI, | ) | ||
| Respondent. | ) |
ORDER AFFIRMING
HEARING OFFICER DECISION UPON APPLICATION FOR REVIEW
HOLDING
On October 23, 2018, Senior Hearing Officer Amy Westermann (Hearing Officer) entered a Decision and Order (Decision) affirming the assessment. Yue Pan (Complainant) subsequently filed an Application for Review of Hearing Officer’s Decision and Order. Jake Zimmerman, Assessor of St. Louis County, Missouri (Respondent), filed an Opposition to Complainant’s Application for Review. Complainant filed a Reply.
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 property is identified by account number I00690302. It is further identified as a 2017 Nissan Leaf S automobile, Vehicle Identification Number (VIN) 1N4BZOCP8HC303194. The vehicle is an electric automobile with automatic transmission.
Respondent set a true value in money (TVM) of the subject property at $30,690. Complainant appealed to the State Tax Commission (STC) on the issue of overvaluation.
The issue of overvaluation was presented at an evidentiary hearing on September 19, 2108 at the St. Louis County Government Building, 41 South Central Avenue, Clayton, Missouri.
Evidence
Complainant opined the TVM of the subject property was $19,701, as of January 1, 2017. To support the opinion of value, Complainant offered the following exhibits:
| Exhibit | Description | Ruling |
| A | Affidavit of Tom Bommarito | Excluded |
| B | Printed copy of web page from Bommarito Automotive Group, https://www.bommarito.com | Admitted |
| C | Photo and contact information for Tom Bommarito | Admitted |
| D | Copy of McFarland v. Boyer, STC Appeal No. 17-34013 (March 27, 2018) | Judicial Notice |
| E | Copy of Brewer v. Bishop, STC Appeal No. 14-66002 (March 12, 2015) | Judicial Notice |
| F | Printed copy of Google search “2017 nissan leaf range” showing (1) battery range from 2017 Nissan Leaf compared to 2017 Chevrolet Bolt BV, 2017 Tesla Model 3, and 2017 Chevrolet Vot; (2) manufacturer suggested retail prices for 2017 Nissan Leaf model configuration as $30,680 for S model, $34,200 for SV model and $36,790 for SL model | Admitted |
| G | Complainant’s 2017 Personal Property Tax Receipt (page 1) and Complainant’s 2018 Personal Property Declaration form (page 2) | Page 1 Admitted; Page 2 Excluded |
| H | Printed copy of email correspondence between Complainant and Suzanne Strain | Admitted |
Complainant testified on his own behalf. The subject property was purchased on December 30, 2016. Complainant testified that he paid $19,701. Complainant testified that the poor distance range of the battery of the 2017 Nissan Leaf in comparison to other electric cars supports a conclusion that the fair market value of the subject property in December 2016 was $10,000 less than the manufacturer’s suggested retail price. Complainant argued that neither the National Automobile Dealers Association (NADA) nor Respondent has the expertise to make a determination of value, however, an automobile dealer has the expertise.
Respondent opined the TVM of the subject property was $30,690 as of January 1, 2017. To support the opinion of value, Respondent offered the following exhibits:
| Exhibit | Description | Ruling |
| 1 | March 2017 edition of the NADA price guide showing (1) vehicle information for 2017 Nissan Leaf Hatchback 5D S Electric; (2) Central Region; (3) 7,500 miles; (4) Base MSRP $30,680; (5) Typically equipped MSRP $31,545; (6) Trade-In Values N/A; (7) hand written note of Suzanne Strain $30,680 x .3333 = $10,230 | Admitted |
| 2 | Section 137.115 RSMo | Admitted |
| 3 | Printed copy of email correspondence between Complainant and Suzanne Stain; copy of Bommarito Buyer’s Order dated 12/30/16 showing MSRP $31,935, sale price $29,701, Nissan rebate $10,000, Administrative Fee $199, Balance Due on Delivery $19,900, and the words “NO TRADE”; letter dated 11/04/18 signed by Todd Eversgerd salesman from Bommarito Automotive Group stating the sale price of the subject property was $19,701 plus administrative fee of $199 |
Respondent offered the testimony of Suzanne Strain (Strain), manager of Personal Property Section of Respondent’s office. Strain testified that she used the online version of the March 2017 edition of the NADA price guide to value the subject property because the 2017 Nissan Leaf was not listed in the October 2016 edition of the NADA price guide. Strain testified she used the MSRP because no trade-in values were reported for the 2017 Nissan Leaf.
As to Exhibit 1, Strain testified that she input the VIN for the subject property and the information set forth in Exhibit 1 was “autopopulated.” Strain testified that the disagreement between the parties to the appeal is whether the rebate of $10,000 should be used in determining the TVM for ad valorem purposes.
CONCLUSIONS OF LAW
Complainant’s Points on Review
Complainant alleged that the Hearing Officer’s Decision is erroneous in that:
- Hearing Officer erred in excluding Exhibit A on the grounds of hearsay;
- Hearing Officer erred using the MSRP for the TVM;
- Hearing Officer erred in using the MSRP in that no trade-in value for a 2017 Nissan Leaf was listed in the NADA October 2016 publication;
- Hearing Officer erred in admitted Exhibit 3 because it does not have a buyer’s signature;
- Hearing Officer erred in excluding page 2 of Exhibit G. Exhibit G shows the subject property’s assessed value was $10,230 for 2017 and $4260 for 2018.
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, Respondent’s response opposing the Application for Review, and Complainant’s Reply, 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.
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).
Weight to be Given Evidence
The Hearing Officer is not bound by any single formula, rule or method in determining true value in money and is free to consider all pertinent facts and estimates and give them such weight as reasonable they may be deemed entitled. The relative weight to be accorded any relevant factor in a particular case is for the Hearing officer to decide. St. Louis County v. Sercurity Bohomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977); St. Louis County v. STC, 515 S.W.2d 446, 450 (Mo. 1974); Chicago, Burlington & Quincy Railroad Company v. STC, 436 S.W.2d 650 (Mo. 1968).
The Hearing Officer, as the trier of fact, may consider the testimony of an expert witness and give it as much weight and credit as deemed necessary when viewed in connection with all other circumstances. Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. W.D. 1991). The Hearing Officer, as the trier of fact, is not bound by the opinions of experts but may believe all or none of the expert’s testimony or accept it in part or reject it in part. Exchange Bank of Missouri v. Gerlt, 367 S.W.3d 132, 135-36 (Mo. App. W.D. 2012)
Owner’s Opinion of Value
Generally, a property owner, while not an expert, is competent to testify to the reasonable market value of his own land. Cohen, 251 S.W.3d at 348-49; Carmel Energy, Inc v. Fritter, 827 S.W.2d 780, 783 (Mo. App. W.D. 1992). “However, when an owner’s opinion is based on improper elements or foundation, his opinion loses its probative value.” Carmel Energy, Inc,, 827 S.W.2d at 783. A taxpayer does not meet his burden if evidence on any essential element of his case leaves the Commission “in the nebulous twilight of speculation, conjecture and surmise.” See Rossman v. G.G.C. Corp. of Missouri, 596 S.W.2d 469, 471 (Mo. App. E.D. 1980)
Recommended Guide for Automobile Valuation
The assessor of each county and each city not within a county shall use the trade-in value published in the October issue of the NADA Official Used Car Guide, or its successor publication, as the recommended guide of information for determining the true value of motor vehicles described in such publication. Section 137.115.9 RSMo The assessor shall not use a value that is greater than the average trade-in value in determining the true value of the motor vehicle without performing a physical inspection of the motor vehicle. Id. For vehicles two years old or newer from a vehicle’s model year, the assessor may use a value other than average without performing a physical inspection of the motor vehicle. In the absence of a listing for a particular motor vehicle in the October issue of the NADA Official Used Car Guide, the assessor shall use such information or publications which in the assessor’s judgment will fairly estimate the true value in money of the motor vehicle. Id.
Discussion
By statute, Respondent is mandated to use the trade-in value published in the October issue of the NADA Official Used Car Guide, or its successor publication, as the recommended guide of information for determining the true value of motor vehicles described in such publication. In the absence of a listing for a particular motor vehicle in the October issue of the NADA Official Used Car Guide, the assessor shall use such information or publications which in the assessor’s judgment will fairly estimate the true value in money of the motor vehicle. Subject property was not listed in the October issue of the NADA therefore Respondent was required to use information that would fairly estimate the true value in money of the subject property.
Complainant contends that best evidence of the subject property’s TVM as of January 1, 2017 was the amount of money he contributed to the purchase of the subject property, $19,900. The Supreme Court of Missouri has held that evidence of the actual sales price is admissible to establish value at the time of an assessment. St. Joe Minerals Corp v. STC, 854 S.W.2d 526, 529 (App. E.D.1993)
A review of the record establishes that the subject property was sold for $29,900 ($29,701 and a fee of $199). The manufacturer contributed $10,000 in the form of a rebate directly to the seller and Complainant contributed $19,900. In other words, the seller received $29,900 from two sources: the manufacturer and Complainant.
Since the subject property was not listed in the October issue of the NADA, Respondent was required to use information that would fairly estimate the true value in money of the subject property. Respondent utilized the March 2017 edition of the NADA price guide. The NADA price guide provided a value of $30,690. Respondent’s use of the March 2017 was appropriate. Further, Complainant’s Exhibit F reports values of the 2017 Nissan Leaf in three configurations ranging from $30,680 to $36,790. Respondent’s valuation fell within the low end of the reported range.
Summary and Conclusion
The Hearing Officer found Complainant did not present substantial and persuasive evidence to establish the TVM of the subject property as of January 1, 2017 to be $19,701. STC finds that a reasonable mind could have conscientiously reached the same result as the Hearing Officer based on a review of the entire record. Hermel, Inc. v. STC, 564 S.W.2d 288 (Mo. 1978); Black v. Lombardi, 970 S.W.2d 378 (Mo. App. E.D. 1998).
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 St. Louis 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 22nd day of January, 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 22nd day of January, 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
STATE TAX COMMISSION OF MISSOURI
| YUE PAN, | ) | |
| ) | ||
| Complainant, | ) | |
| ) | ||
| v. | ) | Appeal No. 17-112793 |
| ) | Account No. I00690302 | |
| JAKE ZIMMERMAN, ASSESSOR | ) | |
| ST. LOUIS COUNTY, MISSOURI, | ) | |
| ) | ||
| Respondent. | ) |
DECISION AND ORDER
HOLDING
The assessment made by Respondent Jake Zimmerman, Assessor, St. Louis County, Missouri, (Respondent) is AFFIRMED. Complainant Yue Pan (Complainant) did not present substantial and persuasive evidence to establish that his opinion of the true value in money (TVM) of the subject property as of January 1, 2017, was correct.
Complainant appeared pro se.
Respondent appeared by Counsel Edward Corrigan.
Case heard and decided by Senior Hearing Officer Amy S. Westermann (Hearing Officer).
ISSUE
Complainant appealed on the ground of overvaluation. Respondent set the TVM of the subject property at $30,690. Complainant did not file an appeal with the St. Louis County Board of Equalization (BOE). Complainant appealed directly to the State Tax Commission (the STC).[1] The STC takes this appeal to determine the true value in money for the subject property as the property existed on January 1, 2017, under the economic conditions as they existed on January 1, 2017. The value as of January 1 of the odd numbered year remains the value as of January 1 of the following even numbered year unless there is new construction or improvement to the property. Section 137.115.1 RSMo.
The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.
FINDINGS OF FACT
- Jurisdiction. Jurisdiction over this appeal is proper. Complainant timely appealed to the State Tax Commission.
- Evidentiary Hearing. The issue of overvaluation was presented at an evidentiary hearing on September 19, 2018, at the St. Louis County Government Administration Building, 41 South Central Avenue, Clayton, Missouri.
- Identification of Subject Property. The subject property is identified by account number I00690302. It is further identified as a 2017 Nissan Leaf S automobile, Vehicle Identification Number (VIN) 1N4BZ0CP8HC303194. (Exhibit 3)
- Description of Subject Property. The subject property is a silver 2017 Nissan Leaf S electric automobile with automatic transmission. (Complaint; Exhibit 3)
- Assessment. Respondent valued the subject property at $30,690, as of January 1, 2017. (Exhibit G)
- Complainant’s Evidence. Complainant opined that the subject property’s TVM as of January 1, 2017, was $19,701. To support his opinion of value, Complainant offered the following evidence:
| Exhibit | Description | Objection | Ruling |
| Exhibit A | Affidavit of Tom Bommarito | Hearsay: witness not present to be cross examined/irrelevant | Admitted to be given weight appropriate in light of all of the evidence; ruling at evidentiary hearing RESCINDED and Exhibit A is hereby excluded (see additional explanation in Discussion section) |
| Exhibit B | Printed copy of web page from Bommarito Automotive Group, https://www.bommarito.com | Hearsay: no foundation | Admitted to be given weight appropriate in light of all of the evidence |
| Exhibit C | Photo and contact information for Tom Bommarito | Hearsay: no foundation | Admitted to be given weight appropriate in light of all of the evidence |
| Exhibit D | Copy of McFarland v. Boyer, STC Appeal No. 17-34013 (March 27, 2018) | Hearsay/irrelevant/improperly draws a legal conclusion | STC takes judicial notice of prior decisions |
| Exhibit E | Copy of Brewer v. Bishop, STC Appeal No. 14-66002 (March 12, 2015) | Hearsay/irrelevant/improperly draws a legal conclusion | STC takes judicial notice of prior decisions |
| Exhibit F | Printed copy of Google search “2017 nissan leaf range,” showing (1) battery range for 2017 Nissan Leaf compared to 2017 Chevrolet Bolt BV, 2017 Tesla Model 3, and 2017 Chevrolet Volt; (2) manufacturer suggested retail prices for 2017 Nissan Leaf model configurations as $30,680 for S model, $34,200 for SV model, and $36,790 for SL model | Hearsay: no foundation | Admitted to be given weight appropriate in light of all of the evidence |
| Exhibit G | Complainant’s 2017 Personal Property Tax Receipt (page 1) and Complainant’s 2018 Personal Property Declaration form (page 2) | No objection to page 1; irrelevant as to page 2 | Page 1 –Admitted; Page 2 – excluded as irrelevant |
| Exhibit H | Printed copy of email correspondence between Complainant and Suzanne Strain | No objection | Admitted |
Complainant testified in his own behalf. Complainant testified that he paid $19,701 for the subject property and that the subject property must be taxed on the actual purchase price he paid. Complainant testified that he did not receive any rebate for the subject property. Complainant testified that he purchased the subject property from Bommarito Nissan, which is the “number one” dealership in Missouri and not a struggling dealership. Complainant testified that the poor distance range of the battery of the 2017 Nissan Leaf as compared to other electric cars supports a conclusion that the fair market value of the subject property in December 2016 was $10,000 less than the manufacturer’s suggested retail price (MSRP). Complainant testified that the key issue to be decided by the factfinder is the actual purchase price, which determines the TVM on the relevant tax date. Complainant argued that neither the National Automobile Dealers Association (NADA) nor Respondent has the expertise to make such a determination but that a car dealership has such expertise.
On cross examination, Complainant testified that he is not an appraiser and has no background appraising motor vehicles for third parties.
- Respondent’s Evidence. Respondent opined that the TVM of the subject property as of January 1, 2017, was $30,690. To support his opinion of value, Respondent offered the following evidence:
| Exhibit | Description | Objection | Ruling |
| Exhibit 1 | Copy of March 2017 edition NADA price guide showing (1) vehicle information for 2017 Nissan Leaf Hatchback 5D S Electric; (2) Central Region; (3) 7,500 miles; (4) Base MSRP $30,680; (5) Typically Equipped MSRP $31,545; (6) Trade-In values N/A; (7) hand written note of Suzanne Strain $30,680 x .3333= $10,230 | Irrelevant | Admitted |
| Exhibit 2 | Section 137.115 | No legal objection | Admitted |
| Exhibit 3 | Printed copy of email correspondence between Complainant and Suzanne Strain; copy of Bommarito Buyer’s Order dated 12/30/16 showing MSRP $31,935, sale price $29,701, Nissan rebate $10,000, Administrative Fee $199, Balance Due on Delivery $19,900, and the words “NO TRADE”; letter dated 01/04/18 signed by Todd Eversgerd salesman from Bommarito Automotive Group stating the sale price of the subject property was $19,701 plus administrative fee of $199 | No legal objection | Admitted |
Respondent also offered the testimony of Suzanne Strain (Strain), who is the manager of the personal property section of Respondent’s office. Strain testified that she used the online version of the March 2017 edition NADA price guide to value the subject property because the 2017 Nissan Leaf was not listed in the October 2016 edition of NADA price guide. Strain testified that she used the MSRP reported in the March 2017 edition NADA price guide because no trade-in values were reported for the 2017 Nissan Leaf. Strain testified that the first time trade-in values for the 2017 Nissan Leaf were reported was not until the October 2017 edition of NADA price guide. With regard to Exhibit 1, Strain testified that after she input the VIN for the subject property, the other information concerning make, model, region, mileage, base MSRP, and typically-equipped MSRP “was autopopulated.” Strain testified that she used the MSRP values reported by NADA to value the subject property. Strain testified that when a taxpayer appeals his or her mass appraisal assessment of a vehicle, the assessor looks at the specific vehicle at issue and looks at NADA and the MSRP. Strain testified that in Complainant’s case the disagreement about TVM centered on the rebate that had been applied to the sale price of the subject property. Strain testified that Respondent believed the rebate should not be subtracted in determining the TVM of the subject property.
On cross examination, Strain testified that she had received copies of documents from Complainant, which showed a rebate had been applied to the sale price of the subject property. Strain testified that she had exchanged email with Complainant explaining that a vehicle is not worth less because a rebate was applied to the MSRP or to the sale price. Strain testified that the sale price of a vehicle does not always reflect the TVM. Strain testified that in reviewing Complainant’s claim of overvaluation, she was not provided with any documentation to indicate that the TVM of the subject property was anything other than the MSRP reported by NADA.
On re-direct examination, Strain testified that Complainant had included a copy of his buyer’s order of the subject property in an email exchange. The buyer’s order showed the MSRP was $31,935, the sale price was $29,701, the Nissan rebate was $10,000, the administrative fee was $199, and the balance due on delivery was $19,900. (Exhibit 3) Strain testified that she had specifically informed Complainant that the rebate would not be disregarded in valuing the subject property. Strain testified that the assessment of the subject property was consistent with the requirements of Section 137.115.9 in that Respondent used the best information available to determine the TVM as of January 1, 2017.
- Presumption of Correct Assessment Not Rebutted. Complainant’s evidence was not substantial and persuasive to establish his opinion of the TVM of subject personal property as of January 1, 2017.
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 Board of Equalization, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious. Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo.
Basis of Assessment
The Constitution mandates that real property and tangible personal property be assessed at its value or such percentage of its value as may be fixed by law for each class and for each subclass. Article X, Sections 4(a) and 4(b), Mo. Const. of 1945. The constitutional mandate is to find the true value in money for the property under appeal. By statute, real property and tangible personal property are assessed at set percentages of true value in money. Section 137.115.5 RSMo (2000) as amended. Personal property shall be assessed at 33-1/3%. Section 137.115.1.
Standard for Valuation
Section 137.115 requires that property be assessed based upon its true value in money. True value in money is defined as the price that the subject property would bring when offered for sale by one willing but not obligated to sell it and bought by one willing or desirous to purchase but not compelled to do so. Rinehart v. Bateman, 363 S.W.3d 357, 365 (Mo. App. W.D. 2012); Cohen v. Bushmeyer, 251 S.W.3d 345, 348 (Mo. App. E.D. 2008); Greene County v. Hermel, Inc., 511 S.W.2d 762, 771 (Mo. 1974). True value in money is defined in terms of value in exchange and not in terms of value in use. Stephen & Stephen Properties, Inc. v. State Tax Commission, 499 S.W.2d 798, 801-803 (Mo. 1973). It is the fair market value of the subject property on the valuation date that is pertinent. Hermel, Inc., v. State Tax Commission, 564 S.W.2d 888, 897 (Mo. banc 1978). Market value is the most probable price in terms of money which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeable and assuming the price is not affected by undue stimulus. In sum, true value in money is the fair market value of the subject property on the valuation date. Hermel, Inc., 564 S.W.2d at 897.
Recommended Guide for Automobile Valuation
The assessor of each county and each city not within a county shall use the trade-in value published in the October issue of the NADA Official Used Car Guide, or its successor publication, as the recommended guide of information for determining the true value of motor vehicles described in such publication. Section 137.115.9. The assessor shall not use a value that is greater than the average trade-in value in determining the true value of the motor vehicle without performing a physical inspection of the motor vehicle. Id. For vehicles two years old or newer from a vehicle’s model year, the assessor may use a value other than average without performing a physical inspection of the motor vehicle. Id. In the absence of a listing for a particular motor vehicle in the October issue of the NADA Official Used Car Guide, the assessor shall use such information or publications which in the assessor’s judgment will fairly estimate the true value in money of the motor vehicle. Id.
Investigation by Hearing Officer
In order to investigate appeals filed with the Commission, the Hearing Officer may inquire of the owner of the property or of any other party to the appeal regarding any matter or issue relevant to the valuation, subclassification, or assessment of the property. Section 138.430.2 RSMo (2000) as amended. The Hearing Officer’s decision regarding the assessment or valuation of the property may be based solely upon his inquiry and any evidence presented by the parties or based solely upon evidence presented by the parties. Id.
Complainant’s Burden of Proof
To obtain a reduction in assessed valuation based upon an alleged overvaluation, the Complainant must prove the true value in money of the subject property on the subject tax day. Hermel, Inc., v. State Tax Commission, 564 S.W.2d 888, 897 (Mo. banc 1978).
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.” Westwood Partnership, 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).
To prevail, the taxpayer must prove his opinion of value is correct through 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). See also, 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). A taxpayer does not meet his burden if evidence on any essential element of his case leaves the Commission “in the nebulous twilight of speculation, conjecture and surmise.” See Rossman v. G.G.C. Corp. of Missouri, 596 S.W.2d 469, 471 (Mo. App. E.D. 1980).
Weight to be Given Evidence
The Hearing Officer is not bound by any single formula, rule, or method in determining true value in money and is free to consider all pertinent facts and estimates and give them such weight as reasonably they may be deemed entitled. The relative weight to be accorded any relevant factor in a particular case is for the Hearing Officer to decide. St. Louis County v. Security Bonhomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977); St. Louis County v. STC, 515 S.W.2d 446, 450 (Mo. 1974); Chicago, Burlington & Quincy Railroad Company v. STC, 436 S.W.2d 650 (Mo. 1968).
Discussion
Complainant’s evidence was neither substantial nor persuasive to support an opinion as to the true market value of the subject property as of January 1, 2017. Substantial evidence is that which is relevant, adequate, and reasonably supports a conclusion. Cupples Hesse Corp., 329 S.W.2d at 702. Persuasive evidence is that which causes the trier of fact to believe, more likely than not, the conclusion advocated is the correct conclusion. Id.
Exhibit A Is Not Admissible
Exhibit A was an affidavit dated September 11, 2018, and attested to by Tom Bommarito (Bommarito), General Manager of Bommarito Nissan (the dealership) in Hazelwood, Missouri. Bommarito attested that he was “well qualified” to comment on the fair market value of the subject property due to his lengthy career as an automobile dealer in the St. Louis area. Bommarito attested that Complainant’s purchase price of the subject property on December 30, 2016, “was $19,701 plus admin fee of $199 . . . [which was the] true value of the vehicle at that time . . . and not $29,701 as stated in other documents.” (Exhibit A) Bommarito attested that the dealership had sold 10 new 2017 Nissan Leaf models in December 2016 at “a significant discount from the MSRP price.” (Exhibit A) Bommarito attested that the vehicles were “not distressed merchandise” but that the “range of the 2017 Nissan Leaf hindered its value: max range about 107 miles on local driving and even less on highway.” Bommarito further attested that “these cars were heavily marked down because the value of a used one at that time was about $3000-5000 for a 2013-2014 model on a trade-in and $6000-8000 for retail.” (Exhibit A)
Respondent objected to Exhibit A as hearsay. Complainant did not present the affiant at the Evidentiary Hearing for cross examination. The Hearing Officer noted the objection but admitted Exhibit A to be given the weight deemed appropriate in light of all of the evidence.
Upon further review of Exhibit A, the affidavit constituted out-of-court statements by the affiant, the accuracy and veracity of which could not be tested through cross-examination because Complainant did not present the affiant. Section 536.070(12) of the Missouri Administrative Procedures Act provides:
In any contested case:
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.
(Emphasis added.)
Although technical rules of evidence are not controlling in administrative hearings, fundamental rules of evidence apply. Homa v. Carthage R-IX School District, 345 S.W.3d 266, 282 (Mo. App. S.D. 2011); see also Luscombe v. Missouri State Bd. of Nursing, 2013 WL 68899 (Mo. App. W.D. 2013) at *13. When proper objection is made and preserved, statements in violation of evidentiary rules do not qualify as competent and substantial evidence to support an agency’s decision. Homa, 345 S.W.3d at 282, quoting Dorman v. State Bd. of Registration for Healing Arts, 62 S.W.3d 446, 454 (Mo. App. W.D. 2001).
Section 536.070(7) requires an administrative tribunal to receive proffered evidence into the record regardless of any evidentiary objections. “Reception of hearsay or other inadmissible evidence does not dictate a reversal unless there is not sufficient competent evidence to sustain the decision.” Homa, 345 S.W.3d at 282 (quotation omitted). However, in a case before the STC, “[h]earsay evidence, if an objection is interposed thereto, may not be utilized by the Commission as a basis for a finding of fact or decision in an ad valorem tax appeal.” Hess Construction Co. v. State Tax Commission, 579 S.W.2d 645 (Mo.App.1979).
Complainant did not file or provide Respondent with Exhibit A eight days or more in advance of the Evidentiary Hearing, pursuant to Section 536.070(12). Therefore, Respondent’s objection to the affidavit, raised when Complainant offered Exhibit A into evidence, was timely. The affiant attested that Complainant purchased the subject property for $19,701 plus an administration fee of $199 on December 30, 2016, which was $10,000 less than the MSRP. The affiant attested that he was “well qualified to comment on the fair market value” of the subject property, implying that he was expert in the field of automobile pricing. However, Complainant did not produce the affiant to be cross examined by Respondent with regard to his expert opinion of the fair market value, which is equivalent to TVM, of the subject property as of January 1, 2017. Consequently, Exhibit A is hearsay not admissible under an exception to the rule against hearsay and may not be utilized by the Commission as a basis for a finding of fact or decision in this appeal. The prior ruling admitting Exhibit A is hereby rescinded; Exhibit A is excluded.
Even if Exhibit A were admissible, it does not constitute substantial and persuasive evidence of the TVM of the subject property as of January 1, 2017, and would have carried little weight in light of other evidence of value; rather, Exhibit A constitutes the affiant’s description of the factors he believed to be affecting the sales of 2017 Nissan Leaf automobiles at the dealership in December 2016. Exhibit A does not provide a snapshot of the overall market for the 2017 Nissan Leaf from which the factfinder could conclude the TVM of the subject property.
Other Evidence of TVM
The Supreme Court of Missouri has held that evidence of the actual sales price of property is admissible to establish value at the time of an assessment, provided that such evidence involves a voluntary purchase not too remote in time. The actual sale price is a method that may be considered for estimating true value. St. Joe Minerals Corp. v. STC, 854 S.W.2d 526, 529 (App. E.D. 1993)
The evidence in the record as a whole established that the actual amount paid for the subject property on December 30, 2016, was a total of $29,900 ($29,701 plus a fee of $199). The manufacturer contributed $10,000 in the form of a rebate issued directly to the dealership, and Complainant contributed $19,900. Stated another way, the seller, which was the dealership, received $29,701 plus a fee of $199 for a total of $29,900 from two sources: the manufacturer and Complainant. In determining the TVM of the subject property, the fact finder cannot ignore the manufacturer’s contribution to the sale price in the form of the rebate. Although Complainant argued that he did not receive the rebate for the subject property, the evidence clearly shows that Complainant received the benefit of the rebate in that it reduced the balance he owed for the subject property on delivery. Even assuming, arguendo, that the rebate was “universal” to buyers of the 2017 Nissan Leaf from the dealership in December 2016, the rebate did not reduce the TVM of the vehicle; rather, the rebate was an incentive intended to encourage potential buyers to purchase the 2017 Nissan Leaf from the dealership.
Because the subject property was not listed in the October 2016 edition NADA price guide, the average trade-in value of the subject property was not available for estimating the property’s TVM on January 1, 2017. At the time of assessment, Respondent did not know the actual sale price of the subject property. Respondent then properly turned to “information or publications which in the assessor’s judgment will fairly estimate the true value in money of the motor vehicle,” pursuant to Section 137.115.9. Respondent utilized the March 2017 edition of NADA price guide to estimate the TVM of the subject property.
Notably, Complainant’s own exhibit, Exhibit F, supported Respondent’s valuation of the subject property’s TVM. Exhibit F was a printed copy of a Google search Complainant had conducted to show comparisons between the mileage range of the battery in the 2017 Nissan Leaf versus the mileage ranges of the batteries other manufacturer’s electric cars. The search results also reported the values of the 2017 Nissan Leaf in three configurations, which ranged from $30,680 to $36,790. (Exhibit F) Respondent’s valuation of the subject property fell within the low end of the reported range. (Exhibit F) Consequently, based on the totality of the evidence, one cannot reasonably conclude that the subject property had a TVM of $19,701 as of January 1, 2017.
ORDER
The TVM for the subject property as determined by Respondent is AFFIRMED. The assessed value for the subject property for tax years 2017 and 2018 is $10,229 ($30,690 TVM), as of January 1, 2017.
Application for Review
A party may file with the Commission an application for review of this decision within thirty days of the mailing date set forth in the Certificate of Service for this Decision. The application shall contain specific facts or law as grounds upon which it is claimed the decision is erroneous. Said application must be in writing addressed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, MO 65102-0146, and a copy of said application must be sent to each person at the address listed below in the certificate of service.
Failure to state specific facts or law upon which the application for review is based will result in summary denial. Section 138.432, RSMo
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 October 23, 2018.
STATE TAX COMMISSION OF MISSOURI
Amy S. Westermann
Senior Hearing Officer
Certificate of Service
I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 23rd day of October, 2018, to: Complainants(s) counsel and/or Complainant, the County Assessor and/or Counsel for Respondent and County Collector.
Jacklyn Wood
Legal Coordinator
[1] The undisputed evidence established that Complainant purchased the subject property on December 30, 2016. Complainant received the tax bill for the subject personal property in October or November 2017, after the deadline for filing an appeal with the BOE had passed. Complainant filed a Complaint for Review of Assessment of the subject property directly with the STC on December 26, 2017. The STC accepted the Complaint for Review, assigned an appeal number, and assigned the Hearing Officer to the case. At the start of the Evidentiary Hearing, Counsel for Respondent filed a motion to dismiss the appeal on the ground that the STC’s jurisdiction is derivative of the BOE’s jurisdiction and, because Complainant did not appeal the assessment to the BOE and the BOE did not issue findings and a notice of decision, the STC does not have jurisdiction over the instant appeal. Following argument of the parties, the Hearing Officer took the motion under advisement with the case. Given that Complainant did not receive the tax bill until after the deadline for filing an appeal with the BOE had passed, Complainant properly filed the appeal directly with the STC. The motion to dismiss is hereby denied.