DONALD R. DUNCAN,	)
	)
Complainant,	)
	)
v.	)		Appeal Number 03-47000
	)
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 $170,000, assessed value of $32,300.

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 $152,400 (assessed value of $28,960, as residential property). Complainant proposed a value of $137,000 (assessed value of $26,030). 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. Complainant proposed a value of $137,000 for the subject condominium unit (Unit 45) based upon that being the appraised value determined by the Assessor for Unit 50.

The following exhibits were received into evidence on behalf of Complainant.

Exhibit A    A photograph of Buildings 12 and 13 of the Shores of Camelot Condominium where the subject is located.

Exhibit B    Copy of Contract for Sale and Purchase of Unit 50, Building 13 of Shores of Camelot Condominums.

Exhibit C    Copy of Form 1099-C - Proceeds from Real Estate Transactions on Unit 50, showing gross proceeds of $143,300.

Exhibit D    Copy of 2003 Notice of Real Property Assessed Value on Unit 50.

Exhibit F    Affidavit of Susan Stoltman.

Exhibit G Comparison between 1301-2 Buckingham, Unit 50 and 1291-1 Buckingham, Unit 45.

Exhibit E, a copy of the Board Decision, was not received into evidence as this document constitutes a part of the Complaint for Review of Assessment that is filed with the Commission.

The Complaint for Review of Assessment listed Discrimination as a ground for appeal. No evidence was presented which addressed the discrimination issue. Therefore, this ground for appeal was deemed waived by Complainant upon failure to present evidence to show an intentional plan of discrimination by the assessing officials resulting in an assessment of the subject property at a greater percentage of value than other property, generally, within the same class within the same taxing jurisdiction.

Respondent testified as to the valuation of condominium developments and units within Camden County for the 2003 assessment cycle. 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 $170,000 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. Exhibit 1 initially indicated an appraised value of $180,000. Upon direct examination, Mr. Woodard changed his concluded value to $170,000 based upon an error in the description of the subject and an error in the description of one of his comparables.

The following exhibits were received into evidence on behalf of Complainant.

Exhibit 2    Listings of properties in The Shores of Camelot as of October 24, 2003.

Exhibit 3    Property Record Card for the subject property.

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 at 1291-1 Buckingham, Camdenton, Missouri. The property is identified by uniform parcel number 7-8-34-0-6-32.101. It is otherwise known as Unit 45, Building 12, The Shores of Camelot. The property consists of a 4th level condominium unit of good quality construction, approximately 12 years in age, in good condition. The unit has 1,570 square feet of living area on two levels, with two bedrooms and two bathrooms. There is a two car garage available to the unit (Tr. 15, Line 9).

3. There was no evidence of new construction and improvement from January 1, 2003, to the date of the hearing, in the absence of a new construction and improvement during November or December, 2003, the valuation for tax year 2003 will also apply 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 $137,000, as proposed.

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 sale properties were located within The Shores of Camelot. Each sale property sold at a time relevant to the tax date of January 1, 2003. The sale properties were all 4th level units, on the lake front, with 1,570 square footage of living area, and a one car garage.

6. The comparables were identified as follows:

Comparable 1 (Unit 41, Building 11) sold in April 2002 for $179,500.

Comparable 2 (Unit 22, Building 6) sold in September 2001 for $173,700.

Comparable 3 (Unit 34, Building 9) sold in July 2001 for $170,000.

Comparable 4 (Unit 50, Building 13) sold in July 2002 for $165,000.

Comparable 5 (Unit 65, Building 17) sold in May 2002 for $167,000.

Comparable 6 (Unit 3, Building 9) sold in April 2002 for $167,000. The Unit number of this comparable was apparently in error, since Unit 3 would not be in Building 9. Information was take from the MLS by the appraiser. Tr. 30, Line 20 - Tr. 32, Line 16.

7. The appraiser made various adjustments to the comparable properties for differences which existed between the subject and each comparable.

8. The net adjustments for Comparable 1 amounted to -$330 or less than 1% of the sales price. The net adjustments for Comparable 2 amounted to +$14,439 or 8.32% of the sales price. The net adjustments for Comparable 3 amounted to +$14,400 or 8.48% of the sales price. The net adjustments for Comparable 4 amounted to -$12,212 or 7.41% of the sale price. The net adjustments for Comparable 5 amounted to +$2,768 or 1.66% of the sale price. The net adjustments for Comparable 6 amounted to +$4,020 or 2.41% of the sale price.

9. The adjusted sales prices for the comparables calculated to $179,170, $188.139, $184,400, $152,788, $169,768 and $171,020, respectively. The appraiser concluded on a $170,000 value which calculated to a value per square foot of $108.28 compared with the sales prices per square foot of living area for the comparables of $114.33, $110.64, $108.28 and $105.10, $106.37 and $106.37.

10. Appraisal of Mr. Woodward, with his adjusted value of $170,000 constituted substantial and persuasive evidence to establish the value of the subject, as of January 1, 2003, to be $170,000.

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).

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.

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).

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).

The evidence offered by the Complainant was not substantial and persuasive to establish a value of $137,000 for the subject property - Unit 45. The theory upon which Mr. Duncan relies for his opinion of value of $137,000 is that he agreed to with the Assessor for a valuation of $137,000 for Unit 50, Building 13. Complainant asserts that since Unit 45 and Unit 50 are Aas far as size and structure, ... they are to the square inch identical,@ the subject should be valued at $137,000. Tr. 5, Lines 9-13. The fatal flaw to Mr. Duncan=s concept of value is that an agreed to appraised value on Unit 50 between the taxpayer and the Assessor does not establish the fair market value of Unit 45.

Complainant=s concept of value is not an approach that has been recognized by either the Commission or the Courts of this state. Mr. Duncan=s opinion is not based upon proper elements or a proper foundation. Therefore it has no probative value in this case. Likewise, the sale of Unit 50 for $165,000, which included the garage space, and three boat slips, with some household furnishing, does not establish the fair market value for Unit 45. The old rule is AOne sale does not a market make.@ The exception being that the sale of the subject, assuming it is established to be open market, does at least set the upper limit of value.

Mr. Woodward was of the opinion that the July 2002 sale of Unit 50 was not indicative of the market and no weight was given to it. Exhibit 1, p. 3. The Hearing Officer is likewise not persuaded that the Unit 50 sale price provides a good indicator of fair market value. By Complainant=s own testimony Unit 50 was not exposed to an open market for a normal period of marketing time. This factor brings into question whether the July 2002 transaction was actually representative of fair market value, in light of the sales prices of the other properties shown on this record.

Apparently, Respondent agreed to reduce Unit 50 from $143,300 to $137,000 by making a deduction of $6,300 for items of personal property. Tr. 9, Lines 16-18. The Hearing Officer does not propose to second guess the Assessor as to his methodology or motivation for the reduction. The Hearing Officer does note that if the personal property deduction of $6,300 (however it was determined) had been taken from the total purchase price of $165,000, the value indicated for the condo, garage and boat slips would have been $158,700. Quite simply, a comparison of the Unit 50 sale price to the other five comparable properties utilized by Mr. Woodard shows that even at $165,000, Unit 50 sold at the lowest per square foot price of any of the sale properties.

The agreed to appraised value for Unit 50 is neither persuasive nor probative as to the fair market value of Unit 45 on January 1, 2003. Just as offers of settlement are inadmissable to establish value in proceedings before the Commission, (Rule 408, Mo. Evidence Restated), an actual negotiated settlement on a property that was never on appeal before the Commission has no probative value on the issue of true value in money of another property. No weight is given to the agreed to value for Unit 50 for purposes of this decision.

The evidence presented on behalf of the Respondent in the form of Mr. Woodard=s appraisal (Exhibit 1) constitutes substantial and persuasive evidence. Said evidence is not only sufficient to affirm the Board=s decision, the presumption of correctness which was not rebutted by Complainant, but to establish a fair market value of $170,000, as opined by Mr. Woodard in his testimony. (Tr. 27, Lines 13-14).

The Hearing Officer notes that Mr. Woodard mistakenly provided the description of the subject as being a unit with 6 rooms, 3 bedrooms and 3 and a half bathrooms. In point of fact, this description applies to Unit 50 and not Unit 45. Unit 45 actually contains 5 rooms, 2 bedrooms and 2 bathrooms. Exhibit G. Mr. Woodard acknowledged this mistake in his direct testimony and explained that it occurred due to his having simply mixed up the two units as to their unit numbers when he inspected them. Tr. 27, Lines 2-12. This resulted in the description of Unit 50, used as Comparable 4 being also in error. In other words, the description in the Woodard appraisal of the subject (Unit 45) was actually the description of Unit 50 and the description of Comparable 4 (Unit 50) was actually the description of the subject. This mistake is not fatal to Exhibit 1, nor does not detract from the weight that can and must be given the Woodard appraisal report.

In reviewing the appraisal, it is observed that Mr. Woodard provided a detailed and well support analysis for his adjustments for time, garage, dock and furniture. The use of a paired sales analysis for such adjustments is always appropriate where an appraiser has the sales data upon which to conduct such an analysis. Such an analysis always lends strength to the appraiser=s concluded opinion of value. Upon review of the Woodard calculations for these factors, the Hearing Officer finds the adjustments made, derived from the various paired sales analysis, are appropriate and were appropriately applied to the appraisal problem, with the corrections hereafter noted by the Hearing Officer.

The Hearing Officer concurs that an adjustment for difference in floor plans per se was not necessarily warranted, given the fact that all sales properties utilized were of the same square footage as the subject. Mr. Woodard elected to not make an adjustment for the difference in bedroom and bathroom count between the subject and the comparables. He did in his comments on page 3 recognize that the 2 bedroom and 2 bathroom sales (Comparables 5 & 6) indicated a value Aconsiderable less@ than comparables 1 through 3.

The direct comparison between comparable 1 and comparables 5 and 6, all which sold within 14 days of each other shows that comparable 1 commanded a sales price of $12,500 more than sales 5 and 6. The only difference between comparable 1 and comparables 5 and 6 is that comparable 1 has 3 bedrooms and 3 and a half baths, while comparables 5 and 6 have 2 bedrooms and 2 baths.

If a time adjustment, as determined by Mr. Woodard, of .75% is utilized to adjust comparable 2 to the sales date of comparables 5 and 6, the time adjusted sales price would be $182,200. Applying the same calculation to comparable 3 results in a time adjusted sales price of $180,800. Therefore, a paired sales analysis between the 2 bedroom, 2 bath and the 3 bedroom, 3.5 bath sales (Comp. 3 actually is a 3 bath unit), establishes value differences of $12,500, $15,200 and $13,800.

Mr. Woodard did not make an adjustment to Comps. 1, 2 and 3, because he had mistakenly treated the subject as a 3 bedroom and 3.5 bath unit. The Hearing Officer is persuaded that an downward adjustment to Comps. 1, 2 and 3 is justified in light of the above analysis. An adjustment of -$13,000 is supported by the paired sales analysis to account for the fact that these three sales had an additional bedroom and 1 to 1.5 additional baths than the subject.

Mr. Woodward made an adjustment to Comp. 2 of +$7,300 for the fact that this comparable did not have a garage and he was appraising the subject as a one garage unit. This was justified by his paired sales analysis for this factor. However, given the fact that Unit 45 (the subject) actually has two garages (Tr. 15, Line 9) an adjustment is called for to the comparables. Since Unit 45 is a two garage unit and comparables 1, 3, 5 and 6 are all one garage units, the adjustment that must be made to make these comparables like the subject in the appraisal is a +$7,300 adjustment to each comparable. As to Comp. 2, the Hearing Officer concludes that an adjustment of +$10,500 is appropriate to account for Unit 45 having two garages and Comp. 2 having none.

Applying the corrected bed/bathroom adjustments and the garage adjustment results in new indicated values for Unit 45. The adjustments for time, deck/dock slip, and furniture which Mr. Woodard originally made are deemed appropriate and not in need of any correction. The net adjustments to the previously adjusted sales prices based only on the bed/bath and garage adjustments set out above would be as follows: Comp. 1 -$5,700; Comp. 2 -$2,500; Comp. 3 -$5,700; Comp. 5 +$7,300 and Comp. 5 +$7,300.

When these amounts are added to the adjusted sales prices originally established in Exhibit 1, the following adjusted sales prices are now concluded: Comp. 1 = $173,470; Comp. 2 = $185,639; Comp. 3 = $178,700; Comp. 5 = $177,068; Comp. 6 = $178,320. These adjusted sales values provide a range of per square foot values from $110.50 to $118.25, with a median of $113.58, and an average of 113.79.

The Hearing Officer has analyzed the twelve listings provided in Exhibit 2. It is recognized the listings are from October, 2003, some 10 months after tax date. The Hearing Officer finds these listings, although they are only listings and not actual sales, to be helpful in providing a check against the Woodard appraisal with the adjustments calculated by the Hearing Officer above. The per square foot listing prices for the twelve listings ranges from $105.05 to $139.90, with a median of $119.25 and a mean of $117.84.

From the above discussion and analysis, the Hearing Officer is persuaded that the evidence on this record will support a valuation of $170,000 as testified to by Respondent=s expert witness. In arriving at this conclusion, the Hearing Officer recognizes that had Mr. Woodard be able to make the recalculations and analysis which the Hearing officer has performed that he might have arrived at a different opinion of value. It is also acknowledged that Mr. Woodard might take exception to some of the adjustments calculated by the Hearing Officer.

The discussion and analysis was performed as a check against the opinion of $170,000 offered by Mr. Woodard, which was provided without the benefit of detailed recalculations as the Hearing Officer has done. The evaluation was not performed to be a substitute for the Woodard appraisal, but rather to verify that the opinion of value of $170,000 is easily supported on this record. Therefore, the true value in money for the subject property as of January 1, 2003, is set at $170,000.

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 AFFIRMED.

The assessed value for the subject property for tax years 2003 and 2004 is set at $32,300.

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

ORDER NUNC PRO TUNC

Decision and Order dated December 23, 2003, is amended nunc pro tunc on page 17 under ORDER, by striking the word AAFFIRMED@ and inserting in lieu thereof the words ASET ASIDE.@ In all other respects said Decision and Order is ratified.

SO ORDERED: December 31, 2003.

STATE TAX COMMISSION OF MISSOURI

W. B. Tichenor

Hearing Officer

ORDER NUNC PRO TUNC

Decision and Order dated December 23, 2003, is amended nunc pro tunc on page 17 under ORDER, by striking the word AAFFIRMED@ and inserting in lieu thereof the words ASET ASIDE.@ In all other respects said Decision and Order is ratified.

SO ORDERED: December 31, 2003.

STATE TAX COMMISSION OF MISSOURI

W. B. Tichenor

Hearing Officer

ORDER

On December 23, 2004, Hearing Officer W. B. Tichenor entered his Decision and Order (Decision) setting aside the assessment by the County Board of Equalization and finding true value in money for the property under appeal to be $170,000, assessed value of $32,300 as residential property.

Complainant timely filed (January 16, 2004) his Application for Review of the Decision. By Order of the Commission dated January 26, 2004, Respondent was given until and including February 26, 2004, to file any Response. Respondent elected to file no Response.

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).

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, 970 S.W.2d 378 (Mo. App. E.D. 1998); 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).

Complainant set forth nine allegations of error relative to the Hearing Officer=s Decision. Seven of those allegations (items a through g) relate to matters of the weight and sufficiency of the evidence upon which the finding of value was made by the Hearing Officer. The two remaining allegations of error address the increase in the property=s valuation and the entering of an Order Nunc Pro Tunc.

The first seven assertions made by Complainant are nothing more than a rehashing of the evidence in the appeal. The Commission notes that the Hearing Officer discussed in detail the evidence which Complainant presented in this appeal. (Decision, pp. 11-13) The Hearing Officer=s discussion provides sound reasoning for his conclusion that Complainant failed to prove value under the applicable case law. The Hearing Officer then addressed in detail the appraisal evidence present by Respondent upon which he made his finding of value. (Decision, pp.13 - 17).

A review of the record in the present appeal provides support for the determinations made by the Hearing Officer. There is competent and substantial evidence to establish a sufficient foundation for the Decision of the Hearing Officer. A reasonable mind could have conscientiously reached the same result based on a review of the entire record. The Commission finds no basis to support a determination that the Hearing Officer acted in an arbitrary or capricious manner or abused his discretion as the trier of fact and concluder of law in this appeal. 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); Phelps v. Metropolitan St. Louis Sewer Dist., 598 S.W.2d 163 (Mo. App. E.D. 1980).

Complainant=s letter setting forth his Application for Review was essentially an arguing the conclusions reached by the Hearing Officer in the first seven points raised. Complainant failed to set forth any legal claim or basis as a ground to find the Hearing Officer had abused his discretion or acted in an arbitrary or capricious manner in rendering his decision. Complainant simply had an opinion as to the fair market value of the property different from that determined by the Hearing Officer based upon the evidence in the record. In other words, Complainant failed to state specific grounds upon which it was claimed the decision was erroneous. In the absence of specific facts of error or specific errors in applying the law, the Application for Review must be denied.

A brief review of the seven alleged errors relating to the evidence is warranted.

1. Complainant asserts error to disregard the testimony of Complainant as not being probative. The Hearing Officer did not disregard the testimony. He considered it and found it was not based upon proper elements under applicable case law and gave it no probative weight.

2. Complainant asserts it was error to disregard evidence of the sale of one other unit based upon Aone sale does not a market make,@ as no authority was given for the quoted material. The Hearing Officer simply quoted what is generally accepted and has been for some time by appraisers of real property. The Hearing Officer did not disregard the Complainant=s testimony as to the one sale simply based upon the quoted statement. He addressed in detail the various flaws, defects and short-comings of Complainant=s basis for fair market value. Furthermore, there was evidence of the sale of six other units at values significantly above that of the one unit upon which Complainant wanted value based. That evidence provided a very sound basis to rebut the one sale upon which Complainant wanted to base value.

3. Complainant asserts error in accepting the opinion of value by Loren K. Woodard, state certified appraiser as to the fair market value of the subject property, because Complainant has present evidence of the sale of one other unit. The sale of the one unit at a price substantially below that of other comparable units did not rebut the Woodard appraisal. The Hearing officer found the Woodard appraisal to be substantial and persuasive evidence. He did not err in this conclusion. In the absence of evidence to establish clear error on the part of a state licensed appraiser, an appraisal based upon appropriate data will always have some level of probative weight and value. In the present case, the Hearing Officer correctly determined the Woodard appraisal was in deed supported by sufficient and appropriate data. He properly afforded the Woodard evidence substantial and persuasive weight.

4. Complainant asserts it was error to accept the Woodard opinion as to the comparable sales as Woodard did not testify to the conditions set forth at pages 7 and 8 of the Hearing Officer=s Decision. The Hearing Officer did not err in this respect the conditions referenced by Complainant are the factors which are generally recognized in defining Market Value. Complainant failed to cross-examine on any of the factors or to offer evidence to establish that any of the sales utilized by Mr. Woodard were not in fact market transactions which complied with the definition of Market Value. If Complainant desired to challenge that the sales were in fact market transactions and had evidence to support that assertion it was both his prerogative and obligation to establish that point. The burden to establish that any of the sales used in the Woodard appraisal were not market transactions is on the party challenging the sale. Phoenix Redevelopment Corp. v. Walker, 812 S.W.2d 881, 883-884 (Mo. App. W.D. 1991)

5. Complainant alleges it was error to accept the Woodard opinion as to the comparable sales because the appraiser had obtained the sales from multi-list information and multi-list excludes sales where no realtor=s commission is included in the sale price. As to the use of multi-list data to obtain sales information, Complainant fails to present any statutory or case law which supports his position that an appraiser cannot rely upon such information. In point of fact it is well accepted and recognized practice within the appraisal industry to utilize such information to obtain sales for performing a sales comparison approach to value.

As to the matter of multi-list not including sales that were not transacted through a real estate agent so no sales commission was included, this matter is irrelevant. Here again, Complainant fails to present any statutory or case law to support his position. There was no error on the part of the Hearing Officer in placing weight and reliance on the appraisal of Mr. Woodard in arriving at a conclusion of fair market value.

6. Complainant alleges it was error to accept Woodard=s opinion as to his comparable sales because a realtor=s commission is not a part of fair market value of real estate for taxation. Here again, there is simply no statutory or case law support for the position asserted by Complainant. Complainant has the burden to establish that in point of fact there is some statutory or case law mandate on this point. He has failed to do so. The Hearing officer did not err in this regard.

The price that the buyer pays to the seller in an arms-length transaction is the sale price. The fact that the seller pays a commission to a realtor does not require a reduction in the sale price, because the buyer was willing to pay the price agreed to irrespective of what the sales commission may or may not have been. It has never been the practice of the Commission to increase sale prices by a set percentage when the transaction was open market, but not involving a realtor. Nor has it been the practice of the Commission to arbitrarily reduce the sale price in those instances when property sells through a realtor.

7. Complainant alleges it was error to conclude that Complainant=s only position was that an Aagreement@ between Complainant and Respondent as to the assessed value of Unit 50 (property not under appeal) required Unit 45 (the property under appeal) to be assessed the same as Unit 50. The testimony of Complainant cited by the Hearing Officer in his Decision, p. 11 (Tr. 5, Lines 9-13), reasonably can lead to the Hearing Officer=s conclusion that Complainant was relying upon a theory of value predicated upon the value agreed to for Unit 50 between the parties. The Complaint for Review of Assessment asserts not the sale price of Unit 50, but the value agreed to between the parties. It is clear that Complainant felt that Unit 50 was the Aonly true comparable.@ However, if that was the case, it defies simple logic as to why Complainant did not agree to the original value of the Assessor for Unit 45 of $152,400, which was still $12,600 less than sale price of what Complainant argues is the Aonly true comparable.@ Complainant=s asserted fair market value of $137,000 for Unit 45 was based on nothing more or less than the value agreed to between the parties for Unit 50. The Hearing Officer reached an appropriate conclusion on this matter from Complainant=s own testimony as to value.

Complainant=s points are not well taken. The Hearing Officer did not err in his determinations as challenged by Complainant on the above seven grounds.

Complainant also challenges the Hearing Officer decision based upon the fact that the Hearing Officer increased the assessed value and that an Order Nunc Pro Tunc was issued more than 90 days from the date of the hearing in this matter. Each of these points will be addressed individually.

Complainant asserts it was error for the Commission to raise the assessed valuation to an amount higher than that which was established by the Assessor and affirmed by the Board of Equalization based upon Section 138.380, RSMo which prohibits the Commission from raising any assessment without notice of the intention to do so and notice of the time and place of hearing on the subject.

Section 138.380(1) provides in relevant part as follows:

AIt shall be the duty of the state tax commission, and the commissioners shall have authority, to perform all duties enumerated in this section and such other duties as may be provided by law:

(1) To raise or lower the assessed valuation of any real or tangible personal property, including the power to raise or lower the assessed valuation of the real or tangible personal property of any individual, copartnership, company, association or corporation; provided that before such assessment is so raised, notice of the intention of the commission to raise such assessed valuation and of the time and place at which a hearing thereon will be held, shall be given to such individual, copartnership, company, association or corporation as provided in sections 138.460 and 138.470.@

Sections 138.460 and 138.470, RSMo relate to the Commission=s responsibility with reference to its inspection of the various county assessment rolls upon completion of the local boards of equalization having passed upon said assessment rolls. The cited sections do not relate to the duty of the Commission in appeals brought by taxpayers to arrive at the fair market value of the property under appeal. In other words, the Commission=s function, duties and responsibilities in the present appeal come under the provisions of the statutes dealing with appeals from the local boards and the evidentiary hearings to be conducted thereon.

The provision of Section 138.430, not Section 138.380, is the controlling statute with regard to appeals by taxpayers from local boards. The statute specifically provides that the Commission is to A... correct any assessment or valuation which is shown to be unlawful, unfair, improper, arbitrary or capricious.@ By Commission Rule 12 CSR 30-3.080(2) a hearing officer handling an appeal is to afford the parties reasonable opportunity for fair hearing and may affirm, or modify so as to correct any assessment which has been challenged by a taxpayer. In a case where the evidence establishes, as in the present appeal, that the property under appeal has been undervalued by the assessor and the board, such a valuation is improper and the Commission Ashall correct@ that valuation.

Complainant was, by the Order issued September 3, 2003, given notice of the Prehearing Conference and Evidentiary Hearing that was to be held on October 30, 2003, in this appeal. That Order specifically stated: AIt is possible the assessment might remain the same, be lowered, or raised.@ Complainant was on notice that after the evidence from both parties was presented the decision could result in an increase in value. Complainant was given full opportunity to present his evidence on the issue of the fair market value of the subject property. The increase in value was not as a result of the action of the Commission pursuant to its duties under Section 138.380 coupled with Sections 138.460 and 138.470.

The increase was proper under the statutory authority given to the Commission in Section 138.430. The Commission has no way of knowing in advance whether the evidence is going to establish a basis for an increase or not. To follow Complainant=s line of reasoning, even after having given notice of the date, time and location of the hearing and advising the taxpayer that the assessment might be increased, the Commission would then have to turn around and issue another notice and hold another hearing, after both parties had all ready presented their evidence of valuation in order to correct an improver valuation. Section 138.430 is the controlling statute with reference to appeals by taxpayers from local boards and there is no provision which requires the Commission to issue an additional notice after it has advised the parties that the valuation may be lowered, increased or remain the same.

Complainant=s point is not well taken. There was no error in the Hearing Officer valuing the property at its fair market value based upon the evidence which he found to be substantial and persuasive and which resulted in an increase in the value over what had been determined by the Assessor and sustained by the Board.

Complainant=s final point of alleged error relates to the issuance of an Order Nunc Pro Tunc which was issued on December 31, 2003 (eight days after the date the Decision and Order was issued). The Order Nunc Pro Tunc struck one word - AFFIRMED, and inserted in lieu thereof the words - SET ASIDE. This was in order to correct what was nothing more than a typographical error in the drafting of the Decision.

The opening sentence of the Order section of the Hearing Officer=s Decision and Order is essentially a boilerplate statement which reads, in this appeal: AThe 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 ... . The word AFFIRMED, or the words SET ASIDE are entered at the end of the sentence in any given case depending on the decision.

In the present case, the HOLDING at the beginning of the DECISION AND ORDER states that the ADecision of the Camden County Board of Equalization sustaining the assessment made by the Assessor, SET ASIDE, ...@ DECISION, p. 1. FINDING OF FACT 10 finds value to be $170,000. DECISION p. 6. The value that the board has sustained for the property was $152,400. DECISION p. 2. The Hearing Officer found that Complainant had failed to prove value. DECISION pp. 11 - 13. The Hearing Officer found that Respondent had presented substantial and persuasive evidence to establish the value of $170,000. DECISION pp. 13 - 17. The Hearing officer had set the assessed value for the property at $32,300. DECISION p. 17. The assessed value which has been sustained by the Board was $28,960. DECISION p. 2.

It was correct and appropriate for an Order Nunc Pro Tunc to be issued to correct the typographical error. It did not alter the substance of the Decision in any way, shape or fashion.

Complainant=s claim is that the Order was issued more than ninety (90) days since the evidentiary hearing had been conducted and that Nunc Pro Tunc order may not be used as a remedy where the court (administrative agency) failed to make an order it could have made or entered during the time allowed. It is the position of Complainant that the Commission has not jurisdiction beyond ninety (90) days from the date of the hearing. Complainant cites to the case of Brock v. Steward, 519 S.W.2d 365, 267 (Mo. App. 1975) in support of his legal claim.

Complainant=s reliance on Brock is misplaced. The Brock case dealt with a motion for a new trial. In point of fact, the Brock court specifically found that the purported amendment of a prior order Adoes not pretend to be a nunc pro tunc order.@ At 367. The court went on to say that there was nothing in the Brock record Afrom which we can deduce that this attempted order is for the purpose of correcting any error resulting from clerical mistakes ... . The Brock case did not deal with an attempt to correct a simple clerical mistake as was the case in the present appeal.

In the present case the Order Nunc Pro Tunc issued December 31, 2003, was clearly supported in the record as a simple correction of a clerical error. Furthermore, the case of Vaughn v. Kansas City Gas Co., 159 S.W.2d 690 (K. C. Ct. Of Appeals, 1942), cited in Brock provides the controlling principle relative to orders nunc pro tunc. In the Vaughn case the court found that the trial court had the right, even at a subsequent term, to make an order based upon its notes, so as to make the record speak the truth. It did not have the right to render a new judgment. At 698.

In the present case the Order Nunc Pro Tunc did not render a new judgment. It only corrected the Decision and Order to make the record Aspeak the truth.@ It rendered the one sentence corrected to be the Atruth@ in accordance with the rest of the Decision and Order as detailed above. The most recent pronouncement relative to the use of a nunc pro tunc order is set out in Foraker v. Foraker, 2004 WL 177109 (Mo. App. W.D., January 30, 2004). In Foraker the Court held (case cites omitted):

AThe purpose of the nunc pro tunc order A >is to correct some error or inadvertence in the recording of that which was actually done, but which because of that error or omission was not properly recorded [.]= @ A nunc pro tunc order A >may not be used to order that which was not actually done, or to change or modify the action which was taken.= @ A nunc pro tunc amendment A >does not lie to correct judicial errors, mistakes, or oversights, to create a new record, or to enter a judgment never made or one different from that actually rendered.= @ To determine whether a court=s order constitutes a modification of the judgment or simply a nunc pro tunc order, this court must decide whether the Aorder changes the original judgment or only the record.@ A[T]he clerical error must be discernible from the record.@ @

The error corrected by the Order Nunc Pro Tunc in this case was clearly only for the correction of a clerical error that was clearly discernible from the record and not to change the judgment.

As to the claim of Complainant that there is no authority that the Commission retains jurisdiction beyond 90 days after the date of the hearing, this point is likewise without merit. The Decision issued December 23, 2003, clearly provides that the Decision is not final. If an application for Review is filed then clearly the Commission has jurisdiction over the appeal. Section 138.432, RSMo. If there is no Application for Review filed within thirty (30) days of the Hearing Officer=s Decision then the Decision is deemed final. DECISION, p. 17; Section 138.432, RSMo. Since no final judgment had been entered as of December 31, 2003, the Order Nunc Pro Tunc to correct the clerical error could be issued. Complainant failed to cite any statute governing Commission appeals or case law which supports his proposition that the Commission has no jurisidiction over an appeal where the judgment has not become final.

Complainant=s point is not well taken. There was no error in the issuance of the order Nunc Pro Tunc as the Commission still had jurisdiction over the appeal.

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 138.432 and 536.100 to 536.140, RSMo within thirty days of the date of the mailing of this Order.

SO ORDERED April 20, 2004.

STATE TAX COMMISSION OF MISSOURI

Sam D. Leake, Chairman

Bruce E. Davis, Commissioner

Jennifer Tidwell, Commissioner