ROBERT HUXEL,	)
	)
Complainant,	)
	)
v.	)		Appeal Number 03-57005
	)
BILL OVERSCHMIDT, ASSESSOR,	)
FRANKLIN COUNTY, MISSOURI,	)
	)
Respondent.	)

Decision of the Franklin County Board of Equalization sustaining the assessment made by the Assessor, AFFIRMED, true value in money for the subject property for tax years 2003 and 2004 set at $107,000, assessed value of $20,330.

Complainant appeared pro se.

Respondent appeared by Counsel, Mark Vincent, County Counselor.

Case heard and 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 Franklin County Board of Equalization which sustained the valuation of the subject property. The Assessor determined an appraised value of $107,000 (assessed value of $20,300, as residential property). Complainant proposed no value but brought a claim of overpayment of taxes in prior years. Respondent offered evidence in support of the valuation sustained by the Board. A hearing was conducted on November 13, 2004, at the Franklin County North Annex Building, Union, Missouri.

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. The Exhibit A was received into evidence on behalf of Complainant. The exhibit consisted of the following pages:

Exhibit A1    Copy of Complaint for Review of Assessment.

Exhibit A2    Property record card showing the corrected dimensions of Complainant=s house and the correction of the base square footage from 1,368 to 1,298.

Exhibit A3    Notice of Assessed value dated 5/6/03, showing a fair market value of $110,390, assessed value of $20,974, based upon the base square footage of 1,368.

Exhibit A4    Notice of Assessed value dated 6/9/03, showing a fair market value of $107,000, assessed value of $20,330, based upon the base square footage of $1,298.

Exhibit A5    Board of Equalization decision affirming the valuation of $107,000 as showing by the June, 2003 Notice.

Exhibit A6    Copy of newspaper article on a refund of surplus funds paid for back taxes.

Complainant offered no opinion of value for the subject property. Complainant=s sole issue was the fact that since 1985 the base area of the subject house had been calculated by the

Assessor=s office at 1,368 square feet. In 2003, the Assessor corrected this to 1,298 square feet or 70 square feet less than that utilized before in valuing Complainant=s home.

Respondent placed into evidence the testimony of Ms. Lori Ruby, appraiser for Franklin County. The appraiser testified as to her appraisal of the subject property. The Appraisal Report, Exhibit 1, of Ms. Ruby was received into evidence. Ms. Ruby arrived at an opinion of value for the subject property of $108,000 based upon a sales comparison approach to value. In performing her sales comparison analysis, the appraiser relied upon the sales of three properties which she deemed to be comparable to the subject property. Ms. Ruby also performed a cost approach which provided an indicated value of $107,650.

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

2. The subject property is located at 118 Dawn Drive, Washington, Missouri. The property is identified by locator number 10-8-27.0-4-007-140.000. The property consists of 83 by 212 foot lot, improved by a one-story, vinyl-sided frame, single-family structure of fair quality construction. The house was built in 1967, and appears to be in fair condition. The residence has a total of five rooms, which includes three bedrooms, two baths, and contains 1,298 square feet of living area. There is a full basement, which has minimal finished living area. The house has an attached one-car garage. Exhibit 1.

3. There was no evidence of new construction and improvement from January 1, 2003, to January 1, 2004.

4. Complainant offered no evidence challenging the valuation established by the Board of $107,000.

5. The properties relied upon by Respondent=s appraiser in performing her appraisal were comparable to the subject property for the purpose of making a determination of value of the subject property. The properties were located on the subject=s street. Each sale property sold at a time relevant to the tax date of January 1, 2003. The sale properties were comparable to the subject in style, quality of construction, condition, room count, bedrooms and baths, living area, location and other amenities. Exhibit 1.

6. The appraiser made various adjustments to the comparable properties for differences which existed between the subject and each comparable. The adjustments made appear to be appropriate and in accordance with generally accepted appraisal standards.

7. Respondent did not advocate an increase in the value of the subject property over that determined by Respondent=s mass appraisal methodology. Respondent=s evidence was substantial and persuasive to support the value of the subject, as of January 1, 2003, to be $107,000, as originally determined by the Assessor and sustained by the Board.

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, even if simply to sustain the value made by the Assessor (which is not presumed to be correct), 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; Exhibit 1.

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).

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).

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).

Complainant offered no opinion of value and admitted in his testimony he was not challenging the value of $107,000.

The valuation sustained by the Board is affirmed. True value in money for the subject property as of January 1, 2003 is, set at $107,000.

Complainant=s sole issue on appeal is that the Assessor had mistakenly valued his property since 1985 based on a base square footage of living area which was 70 square feet larger than his home actually is. Since this mistake was not discovered by either the Complainant or the Assessor until 2003, Complainant could not challenge the valuation in the prior years, but that he should receive a refund in taxes which he contends were over paid.

Complainant=s Exhibit A6 references a situation in which the Franklin County Commission is reported to have authorized a Arefund for overpayments of back taxes.@ However, there are two important points relative to this news story. First, this refund was made by action of the Franklin County Commission, not the State Tax Commission. Apparently, the Franklin County Commission was acting within it appropriate jurisdiction in this matter. Second, the refunds referenced in Exhibit A6 relate to instances where there were purchasers at tax sales and the amount of back taxes had apparently been stated incorrectly at the tax sales and the therefor a refund was required. Quite simply, the refund by the County Commission does not establish a precedent upon which the State Tax Commission may order Franklin County to make any sort of refund to Complainant.

The Commission is without any jurisdiction to order Franklin County to repay any taxes alleged to have been overpaid for the years 1985 through 2002. Since no appeal was properly filed with the Commission by Complainant for any of those years, the Commission cannot now enter an order setting the assessed value for the property for each of the assessment cycles for that period and order the Collector to make a refund on taxes which were never protested by Complainant. Accordingly, Complainant=s request for a refund of alleged overpayment of taxes must be denied.

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

The assessed value for the subject property for tax years 2003 and 2004 is set at $20,330.

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 Franklin 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 10, 2003.

STATE TAX COMMISSION OF MISSOURI

W. B. Tichenor

Hearing Officer