PHILIP & DOROTHY HELFRICH,	)
	)
Complainants,	)
	)
v.	)		Appeals Number 00-10146 & 00-10147
	)
MAURICE M. GOGARTY, ASSESSOR,	)
ST. LOUIS COUNTY, MISSOURI,	)
	)
Respondent.	)

HOLDING

Decisions of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor, AFFIRMED.

Complainants appeared not.

Respondent appeared by Counsel, Paula J. Lemerman, Associate County Counselor.

Case heard and decided by Chief Hearing Officer, W. B. Tichenor.

ISSUE

The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2000.

SUMMARY

Complainants appeal the decisions of the St. Louis County Board of Equalization which sustained the valuation of the subject property. The Assessor determined an appraised value of $45,210 (assessed value of $8,590, as residential property) for each of the subject properties. Complainant proposed a value of $39,475 (assessed value of $7,500) for each of the properties in the Complaint for Review of Assessment filed in each appeal. An evidentiary hearing was set for May 1, 2001, at the St. Louis County Government Center, Clayton, Missouri. Respondent appeared by Counsel and filed an appraisal report in each appeal (Exhibit 1). Complainants appeared not.

The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.

Complainants' Evidence

No evidence was presented on behalf of Complainants.

Respondent's Evidence

Respondent placed into evidence the Appraisal Report, Exhibit 1, of Mr. Bruce Fenwick in each appeal. Mr. Fenwick arrived at an opinion of value for each of the subject properties of $47,000 based upon a sales comparison approach to value. In performing his sales comparison analysis, the appraiser relied upon the sales of properties which he deemed to be comparable to the subject property.

FINDINGS OF FACT

1. Jurisdiction over this appeal is proper. Complainants timely appealed to the State Tax Commission from the decision of the St. Louis County Board of Equalization.

2. The subject property in Appeal 00-10146 is located at 4248 Kay Lane, Unit 7, Blackwoods Chalet Condominium, St. Louis County, Missouri, Locator number 26H230638. The subject property in Appeal 00-10147 is located at 4230 Kay Lane, Unit 6, Blackwoods Chalet Condominium, St. Louis County, Missouri, Locator number 26H230748. Each property consists of a one-story, brick condominium structure of average quality construction, built in 1975, containing a total of five rooms, which includes two bedrooms, one full bath and 850 square feet of living area.

3. There was no evidence of new construction and improvement from January 1, 1999, to January 1, 2000.

4. Respondent's evidence met the standard of clear, convincing and cogent to sustain the original assessment by the Assessor, which had been sustained by the Board. Adjustments made by Respondent's appraiser were appropriate and accounted for the relevant differences between the comparables and the subject. The three comparable properties utilized by the appraiser in each appraisal, consisted of condominium units of the same size, configuration, and age, on the same street , in the same condominium development which had sold in a period from June to September, 1998, in a range from $47,900 to $49,000.

Jurisdiction

The Commission has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious. Article X, section 14, Mo. Const. of 1945; Sections 138.430, 138.431, RSMo. 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. Section 138.431.4, RSMo.

Board of Equalization Presumption

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). There is no presumption that the assessor's valuation is correct. Section 138.431.3, RSMo.

Standard for Valuation

Section 137.115, RSMo 1994, 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. 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). It is the fair market value of the subject property on the valuation date. Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, 897 (Mo. banc 1978).

Respondent's Burden of Proof

The Respondent has imposed upon him by the provisions of Section 137.115.1, RSMo, the burden of proof to present clear, convincing and cogent evidence to sustain a valuation on residential property which is made by a computer, computer-assisted method or a computer program. There is a presumption in these appeals that the original valuation, which was sustained by the Board of Equalization, was made by a computer, computer-assisted method or a computer program. There was no evidence to rebut the presumption, therefore, in order to sustain the valuation of the subject properties at $45,210, appraised value, Respondent's evidence must come within the guidelines established by the legislature and must clearly and convincingly persuade the Hearing Officer as to the value sought to be sustained.

The statutory guidelines for evidence to meet the standard of clear, convincing and cogent include the following:

(1) The findings of the assessor based on an appraisal of the property by generally accepted appraisal techniques; and

(2) The purchase prices from sales of at least three comparable properties and the address or location thereof. As used in this paragraph, the word comparable means that:

(a) Such sale was closed at a date relevant to the property valuation; and

(b) Such properties are not more than one mile from the site of the disputed property, except where no similar properties exist within one mile of the disputed property, the nearest comparable property shall be used. Such property shall be within five hundred square feet in size of the disputed property, and resemble the disputed property in age, floor plan, number of rooms, and other relevant characteristics.

Section 137.115.1(1) & (2).

Clear, cogent and convincing evidence is that evidence which clearly convinces the trier of fact of the affirmative proposition to be proved. It does not mean that there may not be contrary evidence. Grissum v. Reesman, 505 S.W.2d 81, 85, 86 (Mo. Div. 2, 1974). The quality of proof, to be clear and convincing must be more than a mere preponderance but does not require beyond a reasonable doubt. 30 AmJur2d. 345-346, Evidence section 1167. "For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder's mind is left with an abiding conviction that the evidence is true." Matter of O'Brien, 600 S.W.2d 695, 697 (Mo. App. 1980).

Complainants' Burden of Proof

In order to prevail, Complainants 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, 2000. Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, at 897. Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See, Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959). 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. Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975).

DECISION

Complainants elected to not appear and present any evidence, therefore, they could not meet their burden of proof.

Respondent's evidence met the burden of proof to establish the value of the subject properties.

ORDER

The assessed valuations for the subject properties as determined by the Assessor and sustained by the Board of Equalization for St. Louis County for the subject tax day are AFFIRMED.

The assessed value for the subject property in Appeal No. 00-10146 for tax year 2000 is set at $8,590.

The assessed value for the subject property in Appeal No. 00-10147 for tax year 2000 is set at $8,590.

Complainants may file with the Commission an application for review of this decision within thirty (30) days of the mailing of such decision. The application shall contain specific grounds upon which it is claimed the decision is erroneous. Failure to state specific facts or law upon which the appeal is based will result in summary denial. Section 138.432, RSMo 1994.

If an application for review of this decision is made to the Commission, any protested taxes presently in an escrow account in accordance with these appeals shall be held pending the final decision of the Commission. If no application for review is received by the Commission within thirty (30) 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 these appeals. If any or all protested taxes have been disbursed pursuant to Section 139.031(8), RSMo, either party may apply to the circuit court having jurisdiction of the cause for disposition of the protested taxes held by the taxing authority.

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 June 5, 2001.

STATE TAX COMMISSION OF MISSOURI

W. B. Tichenor

Chief Hearing Officer