RLDS CHURCH, d/b/a )
WHITE OAK LIVING CENTER, )
)
Complainant, )
)
v. )      Appeals Number 99-30060 and 99-30061
)
ROBERT M. BOLEY, )
DIRECTOR OF ASSESSMENT, )
JACKSON COUNTY, MISSOURI, )
)
Respondent. )

DECISION AND ORDER

HOLDING

Each tax exemption case is peculiarly one which must be decided upon its own facts. It is the public policy of the state that property actually and regularly used exclusively for charitable purposes shall be exempt from taxation, and taxing authorities are not to be permitted to defeat that policy by unreasonable or unrealistic application of the "strict construction" rule. Missouri United Methodist Retirement Homes v. State Tax Commission, 522 S.W.2d 745, 751 (Mo. banc 1975).

However, Complainant has a "substantial burden" to establish that the property in question qualifies for an exemption. Franciscan Tertiary Province v. State Tax Commission, 566 S.W.2d 213, 224 (Mo. banc 1978).

Complainant has failed to meet its "substantial burden" to establish that the dominant use of the subject property is to provide a "gift" as that term is defined in Salvation Army v. Hoehn, 188 S.W.2d 826, 830 (Mo. banc 1945), therefore, Complainant is not entitled to a tax exemption for its White Oak Living Center.

The decision of the Assessor and the Board of Equalization to deny exemption is AFFIRMED. The value placed on the property is AFFIRMED.

SUMMARY

Complainant appeals the partial non-exempt status of its real and personal property located in Jackson County, Missouri for tax year 1999.

On August 29, 2000, an evidentiary hearing was held before State Tax Commission hearing officer Luann Johnson at the Jackson County Courthouse in Kansas City, Missouri. Complainant was represented by Thomas Bennett, Esq. Respondent was represented by Michael A. LeVota, Esq. Both parties filed briefs after the close of the hearing.

ISSUE

The only issue in this case is Complainant's entitlement to an exemption. Complainant does not dispute the market value of its real or personal property.

FINDINGS OF FACT

1. Jurisdiction over these appeals is proper. Complainant timely appealed to the State Tax Commission from the decisions of the Jackson County Board of Equalization.

2. The real property in Appeal Number 99-30061 is located at 1415 West White Oak, Independence, Jackson County, Missouri and identified as parcel number 26-320-15-68-01. Respondent valued this property at $11,808,000 (assessed value $571,520). Complainant does not dispute this value. Of this value, $8,800,000 is apportioned to the skilled nursing center and is exempt from taxation, as discussed in Finding of Fact Number 6, below.

3. The property in Appeal Number 99-30060 is business personal property located at the White Oak Living Center and identified as parcel number 9906022. Respondent valued this property at $116,000 (assessed value $38,660). Complainant does not dispute this value. Because we find that Complainant's real property is not entitled to an exemption, we likewise find that the personal property is not entitled to an exemption.

4. Complainant is a not-for-profit religious corporation and is exempt from income taxation under the Internal Revenue Code. Providing services to the poor is part of Complainant's religious mission.

5. The subject real property ("White Oak") is a 82 unit (126 bed) residential care facility. It sits adjacent to and shares some resources with Complainant's 300 bed skilled nursing facility ("Rosewood") and is part of a larger complex that includes independent living facilities.

6. Half of the beds in Rosewood are occupied by Medicaid recipients. For individuals seeking admission to a skilled nursing center, Medicaid entitlement is determined by a review of that individual's total assets. Respondent has held that the activities at Rosewood are a charitable use of property and, thus, Rosewood is exempt from ad valorem taxation.

7. In Missouri, a parcel may be subdivided into exempt and non-exempt uses. Barnes Hospital v. Leggett, 589 S.W.2d 241 (Mo. 1979). For the purposes of this decision, the use and operation of the Rosewood facility is not indicative of the status of the White Oak facility.

8. White Oak contains 82 apartment units. The units range in size from 130 square feet, which rents for $500 per month, to a 700 square foot unit, which rents for $1,800 per month for a single individual. The larger units can also accept a second resident. The charge for the second resident is $500 per month (Ex. C8). The number of units of each size and the distribution of the 126 beds among the 82 units is unknown. The units are licensed with the State of Missouri as either a "Residential Care Facility I" or a "Residential Care Facility II."

9. The units are designated as "assisted living." Residents are substantially self-sufficient but some services, including three daily meals, are provided. Residents also have access to various social activities. One of the requirements for admission is a physician's statement. However, it is unclear from the record how much medical attention is actually required for, or provided to, these residents.

10. Most of the residents at White Oak pay the full cost of their living units. However, on the tax day, three received some sort of Medicaid assistance and three received oblation (charity) assistance from Complainant (Tr. 18). Since the tax day, Medicaid recipients have increased to five. Unlike the skilled nursing facility where Medicaid entitlement is based upon total assets, Medicaid entitlement for rental assistance in a residential care facility such as White Oak is based upon income. The income requirement for Medicaid assistance at this level is unknown (Tr. 11). Like Medicaid, Complainant bases its admission requirements on income rather than assets (Tr. 19). The income level Complainant requires for admission to the facility is also unknown. Some people are turned away because of inability to pay (Tr. 21-22). The number of people who are turned away was characterized as "not very many."

11. The stipulation of fact states that Complainant provides "free charitable care at an approximate 10% level." (Stip. pg. 4). This statement is misleading. Complainant has 126 beds but has only eight individuals receiving assistance now and had only six receiving assistance on the tax day. And, even if we assume that each individual who currently receives assistance has a separate unit, which would more closely equate to a 10% ratio, the stipulation is still misleading because those individuals are not 100% subsidized.

12. White Oak's monthly income ranges from $75,000 to $85,000. Complainant's current monthly contribution, in the form of rent forgiveness, is $3,000 to $3,500 (Tr. 20). The amount of this contribution on the tax day is unknown.

13. Complainant presented no guidelines governing admission of low-income residents, nor did it present any guidelines or regulations governing its decision to provide rental assistance. Complainant's witness articulated one situation where a resident in a $1,500 per month unit was being providing $500 per month in rental assistance. No explanation was given for why this individual was not transferred to a unit that he could afford without financial assistance (Tr. 18-19). Consequently, we cannot find that Complainant's contribution to this individual was charity, as that term is understood for tax exemption purposes. Likewise, we can not find that Complainant's Medicaid recipients were needy. While all needy people are low-income; not all low-income people are needy. It is entirely possible for retired persons to have low-income and still have assets which take them beyond the level of need required to justify charitable assistance.

14. As part of their retirement package, Complainant's ministers receive a $100 per month reduction in their rent at White Oak. All retired ministers are promised admission to Rosewood, the skilled nursing facility.

There are currently four senior ministers at White Oak; nineteen senior minsters in the independent living facility who will be going into White Oak, and 14 senior ministers who have already gone into Rosewood. It is anticipated that approximately 160 senior ministers will come into the retirement facilities in the next five to ten years (Tr. 24 - 26).

The agreement between Complainant and the retired ministers is contractual. While it may diminish a claim for charitable exemption should a significant number of White Oak's units become occupied by retired ministers, under the current circumstances, the number of resident ministers does not impact Complainant's claim for a charitable exemption.

15. No endowment is required for admission to White Oak. Residents rent units on a month-to-month basis. No resident has been evicted for inability to pay rent.

16. White Oak pays rent to Complainant. The rental amount corresponds with the principal and interest that Complainant pays on the bond issue that was used to finance the construction and remodeling of the White Oak facility. There have been times when White Oak has not been able to meet its rental obligation. The amount of shortfall in unknown. White Oak attempts to charge enough rent to its residents to "break even," but this goal has not always been implemented (Tr. 21).

17. Complainant has failed to present substantial evidence demonstrating that the use of its property is for the benefit of an indefinite number of persons and directly or indirectly benefits society. Therefore, Complainant has failed to demonstrate that it is entitled to a charitable exemption.

18. Likewise, Complainant has failed to demonstrate that it is entitled to a religious exemption because it has failed to demonstrate that the use of its property is actually used for religious worship.

CONCLUSIONS OF LAW

Burden of Proof

Although a taxing statute is construed strictly against the state, an exemption statute is strictly construed against the one claiming the exemption. State ex rel. Union Electric Co. v. Goldberg, 578 S.W.2d 921, 923 (Mo. banc 1979).

In order to prevail, Complainant must demonstrate by substantial and persuasive evidence, that it is entitled to an exemption.

Substantial evidence is that evidence which, if true, has probative force upon the issues, i.e., evidence favoring facts which are such that reasonable men may differ as to whether it established them, and from which the Commission can reasonably decide an appeal on the factual issues. 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).

Complainant bears the burden of establishing, by substantial evidence, every element to support its claim for tax relief. The failure to establish an essential element results in the failure of Complainant to carry its burden of proof. Steward v. Goetz, 945 S.W.2d 520 (Mo. App. 1997); Breckenridge v. Meierhoffer-Fleeman Funeral Home, Inc., 941 S.W.2d 609 (Mo. App. 1997). Complainant fails to prove its case, when the evidence on an essential element leaves the trier of fact in the nebulous twilight of speculation, conjecture and surmise. Rossman v. G.F.C. Corp of Mo., 596 S.W.2d 469, 472 (Mo. App. 1980); Hawkins v. Whittenberg, 587 S.W.2d 358, 261 (Mo. App. 1979); Shelton v. Bruner, 449 S.W.2d 673, 680 (Mo. App. 1969).

Statutory Exemptions

Properties which can be exempted from taxation are set out within our Constitution and the statutes enacted to enforce that Constitution, to wit:

. . .all property, real and personal, not held for private or corporate profit and used exclusively for religious worship, for schools and colleges, for purposes purely charitable, . . .may be exempt from taxation by general law but any such law may provide for approximate restitution to the respective political subdivisions of revenues lost by reason of the exemption. All laws exempting from taxation property other than the property enumerated in this article, shall be void. Article X, Section 6, Mo. Const. of 1945.

In support of this Constitutional provision, the Legislature has enacted Section 137.100, RSMo 1994, which provides in relevant part:

The following property shall be exempt from taxation:

(5) All property, real and personal, actually and regularly used exclusively for religious worship, for schools and colleges, or for purposes purely charitable and not held for private or corporate profit, except that the exemption herein granted does not include real property not actually used or occupied for the purpose of the organization but held or used as investment even though the income or rentals received therefrom is used wholly for religious, education or charitable purposes; Section 137.100, RSMo 1994.

Case Law on Charitable Use

In order for a property to be exempt from taxation for state, county or local purposes, the

following tests must be met:

1. The property must be actually and regularly used exclusively for a charitable purpose, as charity is defined by Salvation Army v. Hoehn, 188 S.W.2d 826 (Mo. banc 1945). "Charity" is therein defined as ". . .a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their hearts under the influence of education or religion, by relieving their bodies of disease, suffering or constraint, by assisting them to establish themselves for life, or by erecting or maintaining the public buildings or works or otherwise lessening the burdens of government." Salvation Army at 830.

2. The property must be owned and operated on a not-for-profit basis. The property "must be dedicated unconditionally to the charitable activity in such a way that there will be no profit, presently or prospectively, to individuals or corporations. Any gain achieved in use of the building must be devoted to achievement of the charitable objectives of the project." Franciscan Tertiary Province v. State Tax Commission, 566 S.W.2d 213, at 224 (Mo. banc 1978).

3. The dominant use of the property must be for the benefit of an indefinite number of persons and must directly or indirectly benefit society generally. "It is required that there be the element of direct or indirect benefit to society in addition to and as a result of the benefit conferred on the persons directly served by the humanitarian activity." Franciscan at 224. See also, Barnes Hospital v. Leggett, 589 S.W.2d 241 (Mo. banc 1979).

DISCUSSION

Complainant's Argument

Complainant articulates the issue in this case as follows:

Is a state licensed Residential Care facility entitled to exemption from property taxation when it is owned by a religious institution, operated not-for-profit, subsidized by the religious body to lessen the burdens of government and serves an indefinite number of people by relieving them of disease, burden or constraint?

Complainant premises it claim for exemption on the following facts:

Complainant's evidence and arguments miss the mark. It is well settled that the mere provision of senior housing and medical care is not enough to entitle an entity to an exemption. Cape Retirement Community v. Kuehle, 798 S.W.2d 201 (Mo. App. 1990). The fact that a property is owned by a religious organization does not establish the right to either a religious or a charitable exemption. Likewise, the fact that White Oak is state regulated and the fact that White Oak is not self-sufficient, are not controlling factors. Indeed, even the fact that White Oak assists some of its residents in the payment of their monthly charges, is not the controlling factor.

"It is not enough that the benefits relieve burdens from those directly participating, society as well must gain. The use of the property taken from the tax rolls must relieve some public obligation such as reducing the likelihood that persons will become public charges or will be forced into living conditions conducive to increasing society's problems. In some measure, this third element [of the Franciscan test] extracts a quid pro quo in consideration for tax relief. In Franciscan this condition was found to be satisfied [inasmuch as] the situation of the tenants was such that the burden of their care and housing would fall to the public without the project to fill that need." Community Park Village v. STC, 652 S.W.2d 179, 181-182 (Mo. App. 1983). And, while it is true that occupants do not have to be destitute in order for an organization to receive a charitable exemption, there must be some showing that occupants "would be relegated to substandard living conditions without the project or that they could not afford accommodations rented on the open market." Community Park, supra at 182. This is the element that Complainant has failed to establish.

The fact that some residents are not able to pay the rents charged by Complainant does not establish that Complainant is providing a benefit to society. This is especially evident in those instances where Complainant is subsidizing individuals who, but for the size of their living unit, could afford to pay Complainant's designated rent.

The fact that such individuals can maintain a larger living unit through Complainant's generosity is a benefit to the particular individual but no recognizable benefit to society. And, because we have no information about the remaining two residents who receive similar "oblations", we can draw no conclusions as to whether Complainant's subsidy for these individuals actually benefits society.

Even the admittance of a few individuals who qualify for Medicaid does not, in and of itself, establish that Complainant's dominant purpose is to provide a benefit to society. Complainant's admission policies are based on income level, rather than asset level. While all needy people are low-income; not all low-income people are needy. This is especially true in the retirement community where individuals may have accumulated substantial assets.

In Evangelical Retirement Homes v. STC, 669 S.W.2d 548, 556 (Mo. 1984), the Supreme Court stated:

"The essence of the charitable nature of homes for the aged is that they accommodate the ability to pay of the less financially fortunate elderly. It is in this manner that the home in Franciscan achieved a public benefit. This is not to say that a home for the aged, in order to be charitable, may not require reimbursement from those financially able to fend for themselves. Nor must the home be prevented from subsidizing those services provided free or at a reduced cost by charging those able to pay at a price above cost, as long as it does not generate private or corporate profit. However, the operation of a charitable home for the aged must take into account the ability to pay of the entire spectrum of the aged."

The "ability to pay," or lack thereof, requires an examination of more than merely the income of the individuals.

While we agree with Complainant's contention that the court found a similarity in the operation of charitable retirement homes and charitable hospitals, we do not find that the similarity was based upon the provision of medical care to the exclusion of all other factors. Citing Community Memorial Hospital v. City of Moberly, 422 S.W.2d 290, 295 (Mo. 1967), the Evangelical court stated:

"This precept is aptly demonstrated in cases pertaining to hospitals, an analogous charity, which state: [P]roviding of hospital facilities for the sick in a not-profit manner rises to a charitable purpose tax-exempt status if the same is available to both rich and poor."

* * * * *

This is not to say that a hospital may not accept payment for its services from those able to pay. However, "[a] hospital cannot . . .without losing its character as a public charitable hospital, receive pay patients to such an extent as will exhaust its accommodations and prevent its receiving and extending hospital service to the usual and ordinary number of indigent patients applying for admission."

In Community Memorial, the court found that the hospital always had beds open for, and never turned away, indigent patients applying for admission. However, the Evangelical court denied exempt status to the taxpayer in spite of the fact that the taxpayer was providing medical services, because the taxpayer's admission policies effectively screened individuals who did not have the resources to pay for their care.

In this case, we find that Complainant is also turning people away who do not have the resources to pay its fees. While it is not always wrong to turn away needy individuals, without a more thorough knowledge of Complainant's financial requirements, screening processes and the "usual and ordinary number" of needy people who have applied for admission, we cannot find that accepting three to five Medicaid recipients, for a 126 bed facility, is sufficiently persuasive to establish a charitable purpose which would warrant a tax exemption for the entire facility.

Moreover, even the acceptance of Medicaid recipients, who might properly fall in the category of "needy," might not be sufficient to establish a charitable purpose. Complainant also needed to demonstrate that it was providing something that Medicaid recipients, because of their restricted funds, could not otherwise obtain.

In a recent case dealing with medical clinics, Twitty v. State Tax Commission, 896 S.W.2d 680 (Mo. App. 1995), the court denied exempt status to a not-for-profit medical clinic, finding that the clinic was doing little more than competing with for-profit clinics, and reasserted the requirement that the party claiming a tax exemption must demonstrate that it is providing something that is not otherwise available to those it was seeking to serve. The court stated:

" . . . many provisions of the contract indicated that the [subject] clinic was functioning much the same as any other medical clinic being operated for profit. While such a comparison is not controlling, it can be useful in determining whether property is exempt from taxation pursuant to Section 137.100(5).

* * * * *

There is no indication that this clinic's method of operation differs from other physicians' offices in the . . . area. Fees are charged. The amount of fees charged a particular patient depends on what services were provided. Some are collected. Some are not."

Here, there is nothing magical about operating a residential care facility. Such a facility could exist equally well in either the for-profit or not-for-profit sector. It could charge the same rents, provide the same services, and experience the same profits or losses. If the not-for-profit organization is acting in all ways like the for-profit organization, its not-for-profit status will not be persuasive to establish a right to a tax exemption. To prevail, a not-for-profit organization needs to distinguish itself by demonstrating that it is providing a service that, but for its generosity, the burden for the provision of such service would fall upon society, as a whole.

Respondent's Argument

Respondent argues that the low percentage of subsidies provided to Complainant's residents demonstrates that Complainant operates more like a self-supporting development which should not be exempted, citing to Village North, Inc. v. State Tax Commission of Missouri, 799 S.W.2d 197 (Mo. App. 1990). We do not agree that Village North stands for the proposition that a low percentage of subsidy indicates a non-exempt self-supporting development. In Village North the skilled care portion was granted an exemption because it demonstrated that it was providing a benefit to society by furnishing care that its patients would not otherwise be able to receive. The non-skilled care portion failed to obtain an exemption because its use of endowments and life care contracts effectively screened out individuals who did not have the resources to pay the endowments.

We address this issue here because we do not want the parties to be misled about our decision. While the number of individuals helped is certainly relevant, economic aspects alone do not control in charitable exemption cases and cannot be substituted for a benefit analysis under Salvation Army, supra, and Franciscan, supra. The fact that a facility is self-supporting does not destroy an otherwise valid tax exempt status. A tax exempt organization is allowed to operate in the black and even to make a profit. Community Park, supra.

Each tax exemption case must be decided upon its own facts. It is a public policy in this state to grant tax exemptions to property that is actually and regularly used exclusively for charitable purposes. Missouri United Methodist Retirement Homes v. State Tax Commission, 522 S.W.2d 745, 751 (Mo. banc 1975).

Under certain circumstances, it is possible for an organization to provide only a small percentage of free or below cost care to indigents and still maintain a tax exempt status, if it is providing service to the "usual and ordinary number of indigent [individuals] applying for [assistance] under proper rules and regulations adopted by the managing authority." Community Memorial, supra at p. 295; Affiliated Medical Transport v. State Tax Commission, 755 S.W.2d 646 (Mo. App. 1988).

CONCLUSION

While we recognize that we must exercise care to insure that our construction of the law is not so strict as to negate the legislature's intent, we must also exercise care to insure that exemptions are not granted in cases where, as here, Complainant has failed to demonstrate, by substantial and persuasive evidence, that the dominant use of the property is for the benefit of an indefinite number of persons and directly or indirectly benefits society generally.

Complainant also suggests that there may be a possibility of exemption by nature of its religious mission. We agree that Complainant's religious works are intertwined with its charitable works. However, because the operation of a residential care facility is not within the definition of "religious worship" under Section 137.100(5), RSMo, any issue of exemption on the basis of religion must comport with the requirements of charitable exemptions. And, since we have found that Complainant has failed to establish the elements necessary to find a charitable exemption, we do not need to further address Complainant's religious mission.

ORDER

The assessed value as determined by the Assessor and approved by the Board of Equalization for the personal property in Appeal Number 99-30060 is hereby AFFIRMED.

The assessed value as determined by the Assessor and approved by the Board of Equalization for the White Oak real property in Appeal Number 99-30061 is hereby AFFIRMED. The Rosewood portion of the parcel (market value = $8,800,027), remains exempt.

A party may file with the Commission an application for review of a hearing officer decision within thirty (30) days of the mailing of such decision. The application shall contain specific detailed 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.

If an application for review of a hearing officer 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 Jackson 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 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 January 29, 2001.

STATE TAX COMMISSION OF MISSOURI

Luann Johnson

Hearing Officer

 

ORDER

DENYING APPLICATION FOR REVIEW

OF HEARING OFFICER DECISION

On January 29, 2001, Hearing Officer Luann Johnson entered her Decision and Order (Decision) affirming the decision of the Assessor and the Board of Equalization to deny exemption for the subject real and personal property.

Complainant's Grounds for Review

Complainant timely filed its Application for Review of the Decision. Respondent timely filed its Response in opposition to granting review of the Hearing Officer Decision The grounds stated in the Application for Review were:

1. The Hearing Officer misapplied the "substantial and persuasive" evidence rule.

2. Specific Findings of Fact are contrary to the evidence.

3. Hearing Officer's Conclusions of Law are erroneous because they rest upon findings contrary to, or not supported by, the evidence.

4. The Conclusions of Law demonstrate that the Hearing Officer held the church to a "substantial burden" standard of proof, rather than the standard prescribed by law.

DECISION

Misapplication of Substantial and Persuasive Evidence Rule

The Commission, upon review of the Decision and evidence, is not persuaded that the Hearing Officer misapplied the evidence rule which requires the Complainant to present substantial and persuasive evidence to support the grant of an exemption. Complainant takes hold of the fact that the Hearing Officer referred to the Complainant's burden of proof as substantial.

Hearing Officer Johnson set out in detail the standard of law for the granting of an exemption. She correctly referenced that exemption statutes are to be strictly construed against the one claiming the exemption. State ex rel. Union Electric Co. v. Goldberg, 578 S.W.2d 921, 923 (Mo. banc 1979). The fact that at places in her Decision where she referred to Complainant's burden as substantial does not equate to a misapplication of the evidence rule. The Commission does not read the Decision to require evidence of greater weight than would satisfy a preponderance of the evidence test. The Commission finds no basis to support a determination that the Hearing Officer acted in an arbitrary or capricious manner or abused her discretion in applying the burden of proof standard. Hermel, Inc. v. STC, 564 S.W.2d 888 (Mo. 1978); Black v. Lombardi, 970 S.W.2d 378 (Mo. App. E.D. 1998); Holt v. Clarke, 965 S.W.2d 241 (Mo. App. W.D. 1998); Smith v. Morton, 890 S.W.2d 403 (Mo. App. E.D. 1995).

The Hearing Officer did not err in her application of the burden of proof standard as challenged by Complainant. The Complainant's point is not well taken.

*****

Specific Findings of Fact Contrary to the Evidence

Complainant challenges the determinations made by the Hearing Officer in Findings of Fact 7, 9, 11, 13 and 14. The Commission upon review of the specific Findings of Fact and the record concludes that the challenged Findings are not contrary to the evidence and that there is evidence which reasonably supports the Findings.

The Hearing Officer is free to consider all pertinent facts 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).

The Hearing Officer as the trier of fact may consider the testimony of a witness and give it as much weight and credit as she may deem it entitled to when viewed in connection with all other circumstances. The Hearing Officer is not bound by the opinions of experts who testify on an issue, but may believe all or none of the expert's testimony and accept it in part or reject it in part. St. Louis County v. Boatmen's Trust Co., 857 S.W.2d 453, 457 (Mo. App. E.D. 1993); Vincent by Vincent v. Johnson, 833 S.W.2d 859, 865 (Mo. 1992); Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. 1991); Curnow v. Sloan, 625 S.W.2d 605, 607 (Mo. banc 1981).

The Commission will not lightly interfere with the Hearing Officer's Decision and substitute its judgment on the credibility of witnesses and weight to be given the evidence for that of the Hearing Officer as the trier of fact. Black v. Lombardi, supra; Lowe v. Lombardi, 957 S.W.2d 808 (Mo. App. W.D. 1997); Forms World, Inc. v. Labor and Industrial Relations Com'n, 935 S.W.2d 680 (Mo. App. W.D. 1996); Evangelical Retirement Homes v. STC, 669 S.W.2d 548 (Mo. 1984); Pulitzer Pub. Co. v. Labor and Indus. Relations Commission, 596 S.W.2d 413 (Mo. 1980); St. Louis County v. STC, 562 S.W.2d 334 (Mo. 1978); St. Louis County v. STC, 406 S.W.2d 644 (Mo. 1966).

The facts found by the Hearing Officer are supported by substantial evidence upon the whole record. A reasonable mind could have conscientiously reached the same result based on a review of the entire record. Phelps v. Metropolitan St. Louis Sewer Dist., 598 S.W.2d 163 (Mo. App. E.D. 1980).

The Hearing Officer did not err in her determinations as challenged by Complainant. The Complainant's points are not well taken.

*****

Conclusions of Law Erroneous

Complainant's argument is nothing more than a simple exercise in boot-strapping. The argument is that since Findings of Fact 7, 9. 10, 11, 13 and 14 are not proper that the application of the conclusions of law to these facts is erroneous. Since the record supports the challenged Findings of Fact as previously determined, Complainant's argument on this point will not pull its case up to the level of obtaining tax exemption.

The Hearing Officer did not err in her application of the relevant case and statutory law as challenged by Complainant. The Complainant's point is not well taken.

*****

Complainant held to a an Erroneous Standard of Proof

Complainant's argument is simply a restatement, for all intents and purposes, of its first point. The Decision and record in this appeal does not show that the Hearing Officer held the Complainant to any standard of proof for an exemption for taxation other than the appropriate standard set forth by statute and case law. Complainant's evidence, upon the whole record, was not sufficient to establish that the test set forth by Franciscan Tertiary Province v. STC, 566 S.W.2d 213 was met.

The Hearing Officer did not err in her application of the standard of proof as challenged by Complainant. The Complainant's point is not well taken.

*****

ORDER

The Commission upon review of the record and Decision in this appeal, finds no grounds upon which the Decision of the Hearing Officer should be reversed or modified. Accordingly, the Decision is affirmed.

Judicial review of this Order may be had in the manner provided in Sections 138.470 and 536.100 to 536.140, RSMo within thirty days of the date of the mailing of this Order.

SO ORDERED April 16, 2001.

STATE TAX COMMISSION OF MISSOURI

Bruce E. Davis, Commissioner

Sam D. Leake, Commissioner