MARLO BRAIS,	)
	)
Complainant,	)
	)
v.	)		Appeal Number 02-10014
	)
PHILIP A. MUEHLHEAUSLER,	)
ACTING ASSESSOR,	)
ST. LOUIS COUNTY, MISSOURI,	)
	)
Respondent.	)

HOLDING

Decision of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor, AFFIRMED, Hearing Officer finds true value in money for the subject property for tax year 2002 to be $118,090, assessed value of $22,440.

Complainant appeared pro se.

Respondent appeared by Counsel, Paula J. Lemerman, Associate County Counselor.

Case heard and 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, 2001.

SUMMARY

Complainant appeals the decision of the St. Louis County Board of Equalization which sustained the valuation of the subject property. The Assessor determined an appraised value of $118,105 (assessed value of $22,440, as residential property). Complainant proposed a value of $90,000 (assessed value of $17,100). A hearing was conducted on May 13, 2003, at the St. Louis County Government Center, Clayton, Missouri.

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

Complainant's Evidence

Complainant testified in her own behalf. The basis for opinion of value for the subject was that she own an identical three-family apartment building, with only slightly smaller apartments at 740 Heman and it was assessed at $90,000 in 2001. No other evidence to support the owner's opinion of value was offered.

Respondent's Evidence

Respondent placed into evidence the testimony of Mr. Craig Whyman, appraiser for St. Louis County. The appraiser testified as to his appraisal of the subject property. The Appraisal Report, Exhibit 1, of Mr. Whyman was received into evidence. The appraiser arrived at an opinion of value for the subject property of $125,000 based upon a sales comparison approach to value. In performing his sales comparison analysis, the appraiser relied upon the sales of four properties which he deemed to be comparable to the subject property. Respondent's appraisal was offered for the purpose of sustaining the valuation determined by the Assessor which was sustained by the Board and not to advocate a higher value.

FINDINGS OF FACT

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

2. The subject property is located at 805 Westgate, St. Louis County, Missouri. The property is identified by locator number 18H430099. The property consists of a .13 of an acre lot improved by a three-story, brick, three-family structure of average quality construction. The apartment building was built in 1920 and appears to be in average condition. The apartment has a total of eighteen rooms, which includes six bedrooms, three baths and contains 4,152 square feet of living area. There is a full basement.

3. There was no evidence of new construction and improvement from January 1, 2001, to January 1, 2002. The property is valued for its fair market value as of January 1, 2002, under the economic conditions existing as of January 1, 2001, which is the assessment date for the 2001-02 assessment cycle.

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, 2002, to be $90,000, 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 properties were located within 2 blocks of the subject. Each sale property sold at a time relevant to the tax date of January 1, 2001. The sales properties were similar to the subject in style, quality of construction, age, condition, room count, bath count, living area (all within 500 square feet in total area to the subject) and other amenities. Exhibit 1, pp. 6-9.

6. The comparables were described as follows:

Comparable 1 (721 Interdrive - 1 block from the subject) sold in March 1999 for $125.000. This property consists of a .13 of an acre lot improved by a three-story, brick, three- family structure of average quality construction. The apartment building was built in 1927 and appears to be in average condition. The apartment has a total of eighteen rooms, which includes six bedrooms, three baths, and contains 4,654 square feet of living area. There is a full basement. Exhibit 1, pp. 6-9

Comparable 2 (739 Heman - 2 blocks from the subject) sold in July 2001 for $147,000. This property consists of a .08 of an acre lot improved by a three-story, brick, three-family structure of average quality construction. The apartment building was built in 1929 and appears to be in very good condition. The apartment has a total of eighteen rooms, which includes six bedrooms, three baths, and contains 3,990 square feet of living area. There is a full basement. Exhibit 1, pp. 6-9

Comparable 3 (6651 Clemens - 2 blocks from the subject) sold in March 2000 for $139,500. This property consists of a .09 of an acre lot improved by a three-story, brick, three- family structure of average quality construction. The apartment building was built in 1929 and appears to be in good condition. The apartment has a total of eighteen rooms, which includes six bedrooms, three baths, and contains 3,990 square feet of living area. There is a full basement. Exhibit 1, pp. 6-9

Comparable 4 (766 Kingsland - 2 blocks from the subject) sold in February 1999 for $115,000. This property consists of a .13 of an acre lot improved by a three-story, brick, three- family structure of average quality construction. The apartment building was built in 1929 and appears to be in average condition. The apartment has a total of eighteen rooms, which includes six bedrooms, three baths, and contains 3,912 square feet of living area. There is a full basement. Exhibit 1, pp. 6-9

7. The appraiser made various adjustments to the comparable properties for differences which existed between the subject and each comparable. The adjustment were appropriate to account for the various differences between the comparables and the subject. The net percentages of adjustment were within an appropriate range considering all relevant factors of comparison.

8. The net adjustments for Comparable 1 amounted to -$2,750 or -2% of the sales price. The net adjustments for Comparable 2 amounted to -$13,800 or -9% of the sales price. The net adjustments for Comparable 3 amounted to -$12,300 or -9% of the sales price. The net adjustments for Comparable 4 amounted to +$9,750 or +8% of the sales price.

9. The adjusted sales prices for the comparables calculated to $122,250, $133,200, $127,200 and $124,750, respectively. The appraiser concluded on a $125,000 value which calculated to a value per square foot of $30.11 compared with the sales prices per square foot of living area for the comparables of $26.86, $36.84, $34/96 and $29.40.

10. Respondent's evidence met the standard of clear and convincing to establish the value of the subject, as of January 1, 2001, to be $118,090.

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).

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.

No Presumption Assessor's Value Correct

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

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. Exhibit 1, p. 3.

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.

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).

Respondent's Burden of Proof

The Respondent has imposed upon him by the provisions of Section 137.115.1, RSMo, the burden of proof to present clear, convincing and cogent evidence to sustain a valuation on residential property which is made by a computer, computer-assisted method or a computer program. There is a presumption in this appeal that the original valuation, which was sustained by the Board of Equalization, was made by a computer, computer-assisted method or a computer program. There was no evidence to rebut the presumption, therefore, in order to sustain the valuation of the subject property at $118,090, appraised value, Respondent's evidence must come within the guidelines established by the legislature and must clearly and convincingly persuade the Hearing Officer as to the value sought to be sustained.

The statutory guidelines for evidence to meet the standard of clear, convincing and cogent include the following:

(1) The findings of the assessor based on an appraisal of the property by generally accepted appraisal techniques; and

(2) The purchase prices from sales of at least three comparable properties and the address or location thereof. As used in this paragraph, the word comparable means that:

(a) Such sale was closed at a date relevant to the property valuation; and

(b) Such properties are not more than one mile from the site of the disputed property, except where no similar properties exist within one mile of the disputed property, the nearest comparable property shall be used. Such property shall be within five hundred square feet in size of the disputed property, and resemble the disputed property in age, floor plan, number of rooms, and other relevant characteristics.

Section 137.115.1(1) & (2).

Clear, cogent and convincing evidence is that evidence which clearly convinces the trier of fact of the affirmative proposition to be proved. It does not mean that there may not be contrary evidence. Grissum v. Reesman, 505 S.W.2d 81, 85, 86 (Mo. Div. 2, 1974). The quality of proof, to be clear and convincing must be more than a mere preponderance but does not require beyond a reasonable doubt. 30 AmJur2d. 345-346, Evidence section 1167. "For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder's mind is left with an abiding conviction that the evidence is true." Matter of O'Brien, 600 S.W.2d 695, 697 (Mo. App. 1980).

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).

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).

Methods of Valuation

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 Increase in Value

In any case in St. Louis County where the assessor presents evidence which indicates a valuation higher than the value finally determined by the assessor or the value determined by the board of equalization, whichever is higher, for that assessment period, such evidence will only be received for the purpose of sustaining the assessor's or board's valuation, and not for increasing the valuation of the property under appeal. Section 138.060, RSMo; 12 CSR 30-3.075.

DECISION

Complainant's opinion of value was based upon only one thing, the fact that an apartment building which she owned a couple of blocks away was assessed at a lower value by the Respondent for 2001. The owner's opinion of value is not based upon proper elements or a proper foundation. There is no presumption, as a matter of law, that the assessors valuation is correct. Therefore, the value placed on the other apartment building cannot be presumed to have been correct. There was no other evidence to establish that the fair market value of the subject property was only $90,000. Furthermore, evidence was presented to establish that in 1985 Complainant had spent $110,000 in a complete rehab of the subject. Even though the rehab was 16 years prior to the tax date, it essentially rebuts any claim of the fair market value of the subject being only $90,000 for 2001-02.

Respondent's evidence was clear and convincing to sustain a value of $118,090. The four sales properties were excellent comparables to utilize in this appraisal problem. They required a very low percentage of adjustment because they were essentially identical to the subject. The four comparables present as good of evidence as an appraiser could generally hope to have available in the absence of the actual sale of the subject property.

ORDER

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

The assessed value for the subject property for tax year 2002 is set at $22,440.

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 St. Louis 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 June 3, 2003.

STATE TAX COMMISSION OF MISSOURI

W. B. Tichenor

Chief Hearing Officer