MAHADEV, LLC,	)
	)
Complainant,	)
	)
v.	)		Appeal Number 02-89508
	)
JAMES STRAHAN, ASSESSOR,	)
TANEY COUNTY, MISSOURI,	)
	)
Respondent.	)

HOLDING

Decision of the Taney County Board of Equalization reducing the assessment made by the Assessor, SET ASIDE, Hearing Officer finds true value in money for the subject property for tax year 2002 to be $1,290,000, assessed value of $412,800.

Complainant appeared by Counsel, Loren Friesen, Springfield, Missouri.

Respondent appeared by Counsel, Wm. McCullah, County Counselor.

Case submitted on exhibits, evidentiary hearing waived.

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

ISSUE

The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2002.

SUMMARY

Complainant appeals the decision of the Taney County Board of Equalization which reduced the valuation of the subject property. The Assessor determined an appraised value of $1,714,842 (assessed value of $548,750, as commercial property). The Board reduced the value to $1,523,473 (assessed value of $487,510). Complainant proposed a value of $1,000,000 (assessed value of $320,000), in its Complaint for Review of Assessment.

Evidentiary hearing was waived and case submitted on exhibits. The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.

Complainant's Evidence

Counsel for Complainant timely filed with the Commission the following exhibits.

Exhibit A  Appraisal Report of Chris Cooper, State Certified Real Estate Appraiser.

Exhibit B  Statement of Shashi and Kalpana Patel, owners of the subject property under the Complainant corporation.

Exhibit C  Affidavit of Dave Shaffer, motel/hotel broker and realtor.

Respondent's Evidence

Respondent filed no exhibits or written direct testimony in compliance with the Scheduling Order of September 12, 2002. Counsel for Respondent filed with the Commission on April 14, 2003, a Stipulation of Evidence and stipulated to the valuation reached by Mr. Cooper in Exhibit A.

FINDINGS OF FACT

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

2. The subject property is located at 3102 Falls Parkway, Branson, Missouri. It is identified by parcel number 18-1.0-11-001-001-001.000. It is more commonly known as the Travelodge Forget Me Not Motel.

3. The subject property was purchased by Complainant in April, 2000 for $1,300,000. Exhibit A, pp. 36-37; Exhibit B.

4. The sale of the subject property in April 2000 was at a time relevant for determining the economic conditions for January 1, 2001, and thereby valuing the subject as of January 1, 2002. The sale of the property in April 2002 was an open market, arm's-length transaction, which established the outer limit of the value of the property, although the Complainant/purchaser (Mr. and Mrs. Patel) may not have been fully informed as to certain factors present in the Branson area which could and did impact on the ability of the subject property to produce the stream of income which had been assumed in the April 2000 purchase. Exhibits B and C.

5. Complainant's appraiser valued the subject property at $1,290,000. Exhibit A. Complainant's owners' opinion of value was $1,000,000, based upon four different methodologies for calculating a value. Exhibit B. The opinion of Dave Shaffer, a hotel/motel broker and realtor was that the market value of the subject property in 2002 was no more than $950,000. Exhibit C.

6. Complainant's evidence was substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2002, to be $1,290,000, as set forth by Complainant's appraiser in Exhibit A and as stipulated to by Respondent.

Jurisdiction

The Commission has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious. Article X, section 14, Mo. Const. of 1945; Sections 138.430, 138.431, RSMo. The hearing officer shall issue a decision and order affirming, modifying or reversing the determination of the board of equalization, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious. Section 138.431.4, RSMo.

Board of Equalization Presumption

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization. Hermel, Inc. v. STC, 564 S.W.2d 888, 895 (Mo. banc 1978); Chicago, Burlington & Quincy Railroad Co. v. STC, 436 S.W.2d 650, 656 (Mo. 1968); May Department Stores Co. v. STC, 308 S.W.2d 748, 759 (Mo. 1958). There is no presumption that the assessor's valuation is correct. Section 138.431.3, RSMo.

The presumption in favor of the Board is not evidence. A presumption simply accepts something as true without any 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 evidence to the contrary.

Standard for Valuation

Section 137.115, RSMo 1994, requires that property be assessed based upon its true value in money which is defined as the price a property would bring when offered for sale by one willing or desirous to sell and bought by one who is willing or desirous to purchase but who is not compelled to do so. St. Joe Minerals Corp. v. State Tax Commission, 854 S.W.2d 526, 529 (Mo. App. E.D. 1993); Missouri Baptist Children's Home v. State Tax Commission, 867 S.W.2d 510, 512 (Mo. banc 1993). It is the fair market value of the subject property on the valuation date. Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, 897 (Mo. banc 1978).

Market Value

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.

Weight to be Given Evidence

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).

Trier of Fact

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).

Opinion Testimony by Experts

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).

Complainant's Burden of Proof

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, 2001. 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).

Sale of Subject

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).

Owner's Opinion of Value

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).

DECISION

The only evidence presented on this record to establish value was the evidence of Complainant. That evidence was substantial and persuasive, based upon the actual sale of the subject property at a time relevant for the tax date in an open market transaction, and the appraisal by a state certified appraiser. Complainant's appraisal although having a valuation date of April, 2002 is relevant and persuasive as to the fair market value of the property as of January 1, 2002, under the market conditions existing as of January 1, 2001. The value determined by Complainant's appraisal being stipulated to as the value for the subject property by Respondent establishes the value of $1,290,000 as being advocated by Complainant and agreed to by Respondent..

The opinion of Mr & Mrs. Patel was not based upon factors and a foundation that are generally recognized and accepted as appropriate methodology for the valuation of real property. Therefore, it is not found to have probative value sufficient to establish the $1,000,000 value advocated.

ORDER

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

The assessed value for the subject property for tax year 2002 is set at $412,800.

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 Taney 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 April 16, 2003.

STATE TAX COMMISSION OF MISSOURI

W. B. Tichenor

Chief Hearing Officer