DALE E. HAUSER,	)
	)
Complainant,	)
	)
v.	)		Appeal Number 03-47001
	)
EDDIE WHITWORTH, ASSESSOR,	)
CAMDEN COUNTY, MISSOURI,	)
	)
Respondent.	)

Decision of the Camden County Board of Equalization sustaining the assessment made by the Assessor, SET ASIDE, Hearing Officer finds true value in money for the subject property for tax years 2003 and 2004 to be $93,000, assessed value of $17,670.

Complainant appeared pro se.

Respondent appeared in person and by Counsel, William Icenogle, Prosecuting Attorney.

Case heard by Hearing Officer Aimee L. Smashey.

Case decided by Hearing Officer W. B. Tichenor.

The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2003.

Complainant appeals the decision of the Camden County Board of Equalization which sustained the valuation of the subject property. The Assessor determined an appraised value of $96,000 (assessed value of $18,240, as residential property). Complainant proposed a value of $90,000 (assessed value of $17,100) on the Complaint for Review of Assessment. A hearing was conducted on October 30, 2003, at the Camden County Courthouse, Camdenton, Missouri.

Pursuant to Section 138.431.4, RSMo, this appeal has been transferred to Hearing Officer W. B. Tichenor, for rendering of a decision. The decision reached by Hearing Officer Tichenor has been reviewed by Hearing Officer Smashey and she concurs in the Decision and Order entered herein.

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

Complainant testified in his own behalf. He offered his opinion of value for the subject property to be $88,000. The following exhibits were received into evidence on behalf of Complainant.

Exhibit A    Copy of Assignment of Lease and Novation.

Exhibit B    Sales Comparisons.

Exhibit C    Closing Statement, Appraisal and Sales Contract.

Respondent testified in his own behalf. Respondent also placed into evidence the testimony of Mr. Loren K. Woodard, Missouri State Certified General Appraiser. The appraiser testified as to his appraisal of the subject property. The Appraisal Report, Exhibit 1, of Mr. Woodard was received into evidence. Mr. Woodard arrived at an opinion of value for the subject property of $93,000 based upon a sales comparison approach to value. In performing his sales comparison analysis, the appraiser relied upon the sales of six properties which he deemed to be comparable to the subject property.

The following exhibits were also received into evidence on behalf of Respondent.

Exhibit 2    Copy of Property Record Card on Subject.

Exhibit 3    Copy of Sales Listing on Units 1504 and 702 of Breakwater Bay Condominiums.

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

2. The subject property is located in the Breakwater Bay Club Condominium development at Osage Beach, Missouri. The property is identified by parcel number 83530110.201 and is otherwise known as Unit 301 of the subject condominium.

3. There was no evidence of new construction and improvement from January 1, 2003, to the date of hearing, accordingly in the absence of any new construction and improvement having been done during November and December, 2003, the value for tax year 2003 will be the value for tax year 2004.

4. Complainant=s evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2003, to be $90,000, as proposed on the Complaint for Review of Assessment or $88,000 as offered at the evidentiary hearing.

5. The properties relied upon by Respondent=s appraiser in performing his appraisal were comparable to the subject property for the purpose of making a determination of value of the subject property. The properties were located within the Breakwater Bay Club development. Each sale property sold at a time relevant to the tax date of January 1, 2003. The sale properties were similar to the subject based upon location, common elements and recreation facilities, floor location, design and appeal, quality of construciton, age, condition, room count, living area and other amenities.

6. The comparables were described as follows:

Comparable 1 (Unit 301 - subject, Builiding 3) sold in December 2001 for $101,000 (including dock, private water craft-PWC, slip, power lift, appliances and furniture). This Unit is the subject. It is a first floor unit, approximatley 15 years of age, with an effective age of 10-12 years. It has 4 rooms, 2 bedrooms and 2 bathrooms. The Unit has 1,129 square feet of living area.

Comparable 2 (Unit 201 - Building 2) sold in May 2003 for $95,000 (no dock, PWC, slip or lift, but with appianaces and furniture). The Unit is identical to the subject.

Comparable 3 (Unit 302 - Building 3) sold in April 2002 for $ 120,900 (including dock, PWC, slip and appliances). This Unit is a third floor unit, approximatley 15 years of age, with an effective age of 10-12 years. It has 5 rooms, 3 bedrooms and 3 bathrooms. The Unit has 1,570 square feet of living area.

Comparable 4 (Unit 305 - Building 3) sold in July 2001 for $95,000 (including dock slip, appianaces and furniture). The Unit is identical to the subject.

Comparable 5 (Unit 303 - Building 3) sold in December 2001 for $114,900 (including dock, PWC, slip, lift, appianaces and furniture). The Unit is identical to the subject, except it has a half bath and 91 more square feet of living area than the subject.

Comparable 6 (Unit 205 - Building 2) sold in September 2001 for $100,000 (with a dock slip, appianaces and furniture). The Unit is identical to the subject.

7. The appraiser made various adjustments to the comparable properties for differences which existed between the subject and each comparable. Adjustments made were appropriate for the valuation of the subject property in the present appeal. Adjustments for time, dock and living area were supported by a paired sales analysis.

8. The net adjustments for Comparable 1 amounted to -$8,980 or 8.9% of the sales price. The net adjustments for Comparable 2 amounted to -$4,160 or 4.4% of the sales price. The net adjustments for Comparable 3 amounted to -$30,620 or 25.4% of the sales price. The net adjustments for Comparable 4 amounted to -$5,200 or 5.5% of the sales price. The net adjustments for Comparable 5 amounted to -$13,161 or 11.5% of the sales price. The net adjustments for Comparable 6 amounted to -$4,800 or 4.8% of the sales price.

9. The adjusted sales prices for the comparables calculated to $92,020, $90,840, $90,280, $89,800, $101,739 and $95,200, respectively. The appraiser concluded on a $93,000 value which calculated to a value per square foot of $82.38 compared with the sales prices per square foot of living area for the comparables of $89.46, $84.15, $77.01, $84.15, $94.18 and $$88.57.

10. Respondent=s evidence met the standard of substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the value of the subject, as of January 1, 2003, to be $93,000.

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.

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).

The presumption in favor of the Board is not evidence. A presumption simply accepts something as true without any substantial proof to the contrary. In an evidentiary hearing before the Commission, the valuation determined by the Board is accepted as true only until and so long as there is no substantial evidence to the contrary.

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

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).

Market value is the most probable price in terms of money which a property should bring in competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeable and assuming the price is not affected by undue stimulus.

Implicit in this definition is the consummation of a sale as of a specific date and the passing of title from seller to buyer under conditions whereby:

1. Buyer and seller are typically motivated.

2. Both parties are well informed and well advised, and each acting in what they consider their own best interests.

3. A reasonable time is allowed for exposure in the open market.

4. Payment is made in cash or its equivalent.

5. Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.

6. The price represents a normal consideration for the property sold unaffected by special financing amounts and/or terms, services, fees, costs, or credits incurred in the transaction.

Real Estate Appraisal Terminology, Society of Real Estate Appraisers, Revised Edition, 1984; See also, Real Estate Valuation in Litigation, J. D. Eaton, M.A.I., American Institute of Real Estate Appraisers, 1982, pp. 4-5; Property Appraisal and Assessment Administration, International Association of Assessing Officers, 1990, pp. 79-80; Uniform Standards of Professional Appraisal Practice, Glossary.

Duty to Investigate

In order to investigate appeals filed with the Commission, the Hearing Officer has the duty to 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. The Hearing Officer=s decision regarding the assessment or valuation of the property may be based solely upon its inquiry and any evidence presented by the parties, or based solely upon evidence presented by the parties. Section 138.430.2, RSMo.

The Hearing Officer is not bound by any single formula, rule or method in determining true value in money, but 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).

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 he 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 the issue of reasonable value, 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).

If specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert on that subject, by knowledge, skill, experience, training, or education, may testify thereto.

The facts or data upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reliable, the facts or data need not be admissible in evidence. Section 490.065, RSMo; Courtroom Handbook on Missouri Evidence, Wm. A. Schroeder, Sections 702-505, pp. 325-350; Wulfing v. Kansas City Southern Industries, Inc., 842 S.W.2d 133 (Mo. App. E.D. 1992).

Respondent, when advocating a value different from that determined by the original valuation or a valuation made by the Board of Equalization, must meet the same burden of proof to present substantial and persuasive evidence of the value advocated as required of the Complainant under the principles established by case law. Hermel, Cupples-Hesse, Brooks, supra.

In order to prevail, Complainant must present an opinion of market value and substantial and persuasive evidence that the proposed value is indicative of the market value of the subject property on January 1, 2003. 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). 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).

The owner of property is generally held competent to testify to its reasonable market value. Boten v. Brecklein, 452 S.W.2d 86, 95 (Sup. 1970). The owner=s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation. Shelby County R-4 School District v. Hermann, 392 S.W.2d 609, 613 (Sup. 1965).

Missouri courts have approved the comparable sales or market approach, the cost approach (replacement or construction) and the income approach as recognized methods of arriving at fair market value. St. Joe Minerals Corp. v. STC, 854 S.W.2d 526, 529 (App. E.D. 1993); Aspenhof Corp. v. STC, 789 S.W.2d 867, 869 (App. E.D. 1990); Quincy Soybean Company, Inc., v. Lowe, 773 S.W.2d 503, 504 (App. E.D. 1989), citing Del-Mar Redevelopment Corp v. Associated Garages, Inc., 726 S.W.2d 866, 869 (App. E.D. 1987); and State ex rel. State Highway Comm=n v. Southern Dev. Co., 509 S.W.2d 18, 27 (Mo. Div. 2 1974).

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. The actual sales price, between a willing seller who is not obligated to sell and a willing buyer who is not compelled to buy, establishes an outer limit on the value of real property. St. Joe Minerals Corp. v. STC, 854 S.W.2d 526 (App. E.D. 1993).

The owner=s opinion of value was founded upon his development of a sales comparison of four 2 bedroom, 2 bathroom units in the Breakwater Bay development. Notwithstanding Mr. Hauser=s past employment as a real estate broker and his rendering of broker opinions in bank foreclosures, the Hearing Officer is not persuaded that Complainant qualifies as an expert in the appraisal of real property for purposes of presenting an appraisal before the Commission. Exhibit B and Mr. Hauser=s testimony with reference to his sales comparison grid were not established to have been based upon proper elements or a proper foundation. Therefore, in light of the entirety of evidence on this record, the owner=s opinion was not deemed to have probative value for purposes of establishing a fair market value as of January 1, 2003 for Unit 301 of $88,000.

The appraisal report and testimony of Mr. Woodard constitutes substantial and persuasive evidence to establish that the fair market value of the subject property as of January 1, 2003, was $93,000. The Woodard appraisal was the evidence which was probative on the valuation issue in this appeal. The sales data on Units 301, 201, 305 and 205, all being identical to the subject, provides a very sound basis for the valuation performed by Respondent=s appraiser. The two additional sales provide further substantiation relative to the value concluded by the appraiser.

The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization for Camden County for the subject tax day is SET ASIDE.

The assessed value for the subject property for tax years 2003 and 2004 is set at $17,670.

A party 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 this appeal 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 Camden 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. 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 December 23, 2003.

STATE TAX COMMISSION OF MISSOURI

W. B. Tichenor

Hearing Officer