ARNIE C. DIENOFF,	)
	)
Complainant,	)
	)
v.	)		Appeal Number 03-11946
	)
PHILIP MUEHLHEAUSLER, ASSESSOR,	)
ST. LOUIS COUNTY, MISSOURI,	)
	)
Respondent.	)

Decision of the St. Louis 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 $37,600, assessed value of $7,140.

Complainant appeared pro se.

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

Case heard and decided by Hearing Officer, W. B. Tichenor.

The Commission takes this appeal to determine (1) the true value in money for the subject property on January 1, 2003; (2) whether there was an intentional plan by the assessing officials to assess the subject property at a ratio greater than the average assessment ratio for residential property in St. Louis County; and (3) whether the decision of the BOE for 2001 is controlling in this appeal.

Complainant appeals, on the ground of overvaluation, discrimination and that Complainant won his appeal in 2001 before the Board, 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 $37,600 (assessed value of $7,140, as residential property). Complainant proposed a value of $25,000 (assessed value of $4,750). A hearing was conducted on May 13, 2004, 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 testified in his own behalf. He stated his opinion of value for the subject property to be $25,000. Mr. Dienoff asserted that a sales study in the neighborhood which he had performed supported his opinion of value. He gave testimony on various matters which he felt were important to his appeal.

He discussed the increase in taxes in his neighborhood. The property is located in the Riverview Gardens School District which Mr. Dienoff testified is on probation and may lose it accreditation. A number of foreclosures have occurred in the subject neighborhood. His property is subject to the highest tax rate in the state. In 2001, Complainant appealed to the BOE and received a decision valuing his property at $27,000. Complainant asserted that other condominiums in the neighborhood were not selling. The County is pricing him out of his property. Mr. Dienoff also testified to various condition problems with the subject house.

Respondent placed into evidence the testimony of Mr. Al Lincoln, appraiser for St. Louis County. The appraiser testified as to his appraisal of the subject property. The Appraisal Report, Exhibit 1, of Mr. Lincoln was received into evidence. Mr. Lincoln arrived at an opinion of value for the subject property of $40,300 based upon a sales comparison approach to value. In performing his sales comparison analysis, the appraiser relied upon the sales of three properties which he deemed to be comparable to the subject property.

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 914 Amaral Circle, Bellefontaine Neighbors, Missouri. The property is identified by locator number 11E511033. The property consists of .07 of an acre common element lot in a condominium development. The subject condominium is a one-story brick and frame single-family structure of average quality construction. The house was built in 1986 and appears to be in average condition. The residence has a total of five rooms, which includes two bedrooms, one bath, and contains 900 square feet of living area. There is a full basement, but no garage. The property suffers from some items of deferred maintenance relating to painting, original carpeting and cracking in ceiling. Such items are not inconsistent with the general age of the subject improvement. The property was listed at an asking price of $34,900 in 2000. After being on the market less than six months it was purchased in November 2000 for $26,840 out of foreclosure in Aas is@ condition.

3. There was no evidence of new construction and improvement from January 1, 2003, to January 1, 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 $25,000.

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 less than two blocks of the subject. Each sale property sold at a time relevant to the tax date of January 1, 2003. The sale properties were similar to the subject in style, quality of construction, age, condition, room, bedroom and bathroom count, living area, location, site size and other amenities of comparability. Exhibit 1, pp. 5-12.

6. The comparables were described as follows:

Comparable 1 (918 Amaral Circle - same development at subject) sold in January 2002 for $42,500. The property consists of .07 of an acre common element lot in a condominium development. The subject condominium is a one-story brick and frame single-family structure of average quality construction. The house was built in 1986 and appears to be in average to good condition. The residence has a total of five rooms, which includes two bedrooms, two baths, and contains 900 square feet of living area. There is a full basement, but no garage.

Comparable 2 (936 Amaral Circle - same development at subject) sold in November 2000 for $31,500. The property consists of .06 of an acre common element lot in a condominium development. The subject condominium is a one-story brick and frame single-family structure of average quality construction. The house was built in 1986 and appears to be in average condition. The residence has a total of four rooms, which includes one bedroom, one bath, and contains 672 square feet of living area. There is a full basement, but no garage.

Comparable 3 (800 Amaral Circle - same development at subject) sold in June 2002 for $44,160. The property consists of .07 of an acre common element lot in a condominium development. The subject condominium is a one-story brick and frame single-family structure of average quality construction. The house was built in 1986 and appears to be in average condition. The residence has a total of five rooms, which includes two bedrooms, two baths, and contains 900 square feet of living area. There is a full basement, and a one car attached garage.

7. The appraiser made various adjustments to the comparable properties for differences which existed between the subject and each comparable. All adjustments appear to be appropriate to bring the comparables in line with the subject for purposes of the appraisal problem.

8. The net adjustments for Comparable 1 amounted to -$1,000 or 2.35% of the sales price. The net adjustments for Comparable 2 amounted to +$5,900 or 18.73% of the sales price. The net adjustments for Comparable 3 amounted to -$2,500 or 5.66% of the sales price.

9. The adjusted sales prices for the comparables calculated to $41,500, $37,400 and $41,660, respectively. The appraiser concluded on a $40,300 value which calculated to a value per square foot of $44.78 compared with the sales prices per square foot of living area for the comparables of $47.22, $46.88 and $49.07.

10. Respondent=s evidence meet a standard of clear, convincing and cogent evidence in this appeal, under the provisions of Section 137.115, RSMo, to sustain the original valuation of $37,600 presumed to have been made by a computer, computer-assisted method or a computer program.

11. Respondent=s appraisal was accepted only to sustain the original assessment made by the Assessor and not for the purpose of raising the assessment above that value.

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.

Agencies shall take official notice of all matters of which the courts take judicial notice. Section 536.070(6), 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, 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, p. 3.

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).

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 $37,600, 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. AFor 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).

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).

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.

Discrimination

In order to obtain a reduction in assessed value based upon discrimination, the Complainant must (1) prove the true value in money of their property on January 1, 2003. Koplar v. State Tax Commission, 321 S.W.2d 686, 690 (Mo. 1959); and (2) show an intentional plan of discrimination by the assessing officials resulting in an assessment of that property at a greater percentage of value than other property, generally, within the same class within the same taxing jurisdiction. Koplar, supra, at 695. Evidence of value and assessments of a few properties does not prove discrimination. Substantial evidence must show that all other property in the same class, generally, is actually undervalued. State ex rel. Plantz v. State Tax Commission, 384 S.W.2d 565, 568 (Mo. 1964). The difference in the assessment ratio of the subject property the average assessment ratio in the subject county must be shown to be grossly excessive. Savage v. State Tax Commission of Missouri, 722 S.W.2d 72, 79 (Mo. banc 1986). No other methodology is sufficient to establish discrimination. Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696 (Mo. 1958).

The evidence presented by Complainant consisted of his oral testimony. The owner=s opinion of value of $25,000 was not supported by any documentation or even any testimony which established that the opinion of value of only $25,000 for the subject property was based upon any appraisal methodology. Much of what Mr. Dienoff testified to had no bearing on a determination of fair market value as of January 1, 2003, because there was nothing to establish how any of the various topics covered in his testimony would actually impact on the value of his property.

The percentage increases in taxes from year to year or assessment cycle to assessment cycle do nothing to establish what a willing buyer and seller would agree to as a sales price on a given property. The tax rate of the subject neighborhood does not establish that the subject property=s fair market value on January 1, 2003, was only $25,000. The situation that apparently exists concerning the subject school district may or may not have some impact on value. It is clear that whatever potential or actual impact it may have would be accounted for in the sales prices from the properties which were utilized in Respondent=s appraisal since these properties would be subject to the same school district influence.

In short, none of Complainant=s testimony provided a basis upon which the Hearing Officer could determine that the opinion of value of $25,000 was based upon proper elements and a proper foundation. In the absence of making a prima facie showing on those elements, Complainant failed to carry his burden of proof. Substantial and persuasive evidence which would have established the proper elements and foundation for making a determination of value would have been well grounded in appraisal techniques that have been recognized and accepted by the courts of this state and by the Commission. Such was not the case in this appeal.

Complainant Fails To Prove Discrimination

Where there is a claim of discrimination based upon a lack of valuation consistency, Complainant has the burden to prove the level of assessment for the subject property in 2003. This is done by independently determining the market value of the subject property and dividing the market value into the assessed value of the property as determined by the assessor=s office.

Complainants must then prove the average level of assessment for residential property in St. Louis County for 2003. This is done by (a) independently determining the market value of a representative sample of residential properties in St. Louis County; (b) determining the assessed value placed on the property by the assessor=s office for the relevant year; (c) dividing the assessed value by the market value to determine the level of assessment for each property in the sample; and (d) determining the mean and median of the results.

The difference between the actual assessment level of the subject property and the average level of assessment for all residential property, taken from a sufficient representative sample in St. Louis County must demonstrate a disparity that is grossly excessive. Savage v. State Tax Commission of Missouri, 722 S.W.2d 72, 79 (Mo. banc 1986).

Complainant=s discrimination claim fails because he failed to establish the market value of his property. Without establishing the market value, the assessment ratio cannot be established. Without establishing the ratio, it cannot be establish that Complainant was being assessed at a higher percentage of market value that any other property.

However, even if Complainant had established the market value, the discrimination claim would still fail because he did not demonstrated that a statistically significant number of other residential properties within St. Louis County are being assessed at a lower ratio of market value than the subject property. Complainant presented no evidence as to the fair market values of any other properties from which a calculation of assessment ratios could be established.

Because Complainant failed to establish the market value of the property under appeal and failed to establish the subject property is being assessed at a higher percentage of market value than a statistically significant number of other properties in St. Louis County, he failed to establish discrimination.

Complainant=s final ground for appeal was not establish by substantial and persuasive evidence. The Complaint for Review of Assessment asserted that Complainant won his appeal before the Board in 2001. This fact is simply irrelevant to a valuation of the property in 2003.

Complainant provided no legal basis upon which the Hearing Officer could conclude that the valuation determined by the Board, on whatever basis in 2001, represented the fair market value of the subject property in January 2003. Even assuming Complainant had provided documentary evidence showing how the Board arrived at a value of $27,000 for the property on January 1, 2001, such evidence would have been clearly rebutted by Respondent=s appraisal report and the evidence of sales activity on the subject street showing that properties like the subject were selling in a range of $31,500 to $44,160, before adjustments.

The prior decision of the Board was not substantial and persuasive evidence to establish a value of $25,000 as proffered by Complainant.

Respondent presented clear and convincing evidence to establish a fair market value as of January 1, 2003, to be at least $37,600 for the Complainant=s property. Respondent=s appraiser developed an opinion of value relying upon an established and recognized approach for the valuation of real property, the sales comparison or market approach. The sales comparison approach is generally recognized to be the most reliable methodology to be utilized in the valuation of single-family residences.

The adjustments made the Mr. Lincoln were consistent with generally accepted guidelines for the appraisal of property of the subject=s type. The adjustments properly accounted for the various differences between the subject and each comparable. The fact that Comparable 1 only had to have a single adjustment to account for an additional bath is significant. Comparable 3 only required two adjustments to account for an additional bath and a garage. Comparable 2 required a total of four individual adjustments. The major adjustments being for the comparables smaller size and only having a single bedroom.

With Comparables 1 and 3 being the same size units as the subject, these provide the best indicators of value. However, all three comparables show a very close per square foot sale price range of $46.88 to $49.07, with an average of $47.73. This evidence eliminates any assertion by Complainant that his unit would only have a fair market value that would represent a per square foot value of less than $28 ($25,000/900 = $27.78).

The relevant evidence on this record permits only one conclusion relative the fair market value of the Complainant=s property, that is that the value is at least $37,600 as originally set by the Assessor. Accordingly, the assessment as set by the Assessor and sustained by the Board must be affirmed.

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 years 2003 and 2004 is set at $7,140.

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 May 27, 2004.

STATE TAX COMMISSION OF MISSOURI

W. B. Tichenor

Hearing Officer

AFFIRMING HEARING OFFICER DECISION

On May 27, 2004, Hearing Officer W. B. Tichenor entered his Decision and Order (Decision) affirming the assessment by the St. Louis County Board of Equalization.

Complainant timely filed his Application for Review of the Decision. The filing by Complainant was headed Hearing Before the Entire State Tax Commission; however, the Commission receives it and treats it as an Application for Review of the Hearing Officer Decision.

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).

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 filed his request for a full hearing before all of the Commissioners of the Commission. Upon review of the record in this appeal, the Commission finds no basis upon which it should conduct a hearing in this matter. The Commission may assign appeals as it deems fit to a hearing officer for disposition. Although the Commission may, in its discretion, reserve such appeals as it deems fit to be heard and decided by the full commission, a quorum thereof, or any commissioner, this appeal was not such an appeal. Section 138.431.2, RSMo 2000. The grounds stated in the Complainant=s Motion for a hearing before the Commission raise no question which requires a hearing before the Commission. The only thing necessary in response to Complainant=s filing is to review the Decision in light of the grounds stated by Complainant to see if a reversal or modification of the Decision is warranted under the facts and the law.

Complainant stated three grounds in support of his Application for Review. The grounds were:

(1) Hearing Officer was bias (sic) towards Respondent=s Counsel and only listened to the Respondent=s staff instead of doing what is fair and constitutional; and

(2) Hearing Officer=s ruling was unfair, uncapricious (sic), discriminatory in nature; and

(3) a violation of the Missouri State Constitution - AHancock Amendment.@

The Commission will address each ground stated to determine if there is a basis in law or in fact to support a reversal or modification of the Decision.

The Commission takes very seriously a claim that a Hearing Officer acted with bias in conducting a hearing. However, upon review of this record the Commission finds no basis for this assertion by Complainant. The Commission notes that the Hearing Officer at page 2 of his decision set forth a summary of the testimony offered by Mr. Dienoff. The Commission also observes that Complainant elected to not offer any documentary evidence in support of his opinion of value, but elected to simply rely upon his oral testimony, much of which appears to be in the nature of hearsay. However, since it was not objected to, the Hearing Officer made no ruling to exclude such testimony.

The Commission further notices that the Hearing Officer at pages 13 and 14 of the Decision addressed in detail the deficiencies of Complainant=s evidence on the issue of fair market value. The Commission finds no basis for bias in this. It does simply find that the Hearing Officer=s analysis on this issue is well supported by the evidence in the record.

At pages 14 to 16, the Hearing Officer discussed the various shortcomings of Complainant=s evidence relative to the claim of discrimination asserted in this appeal. Here again, there is no showing of any bias. There is a clear and concise summary of the necessary elements to maintain a claim of discrimination, none of which Complainant satisfied in his case in chief.

Finally, at page 16, the Hearing Officer specifically dealt with the Complainant=s final basis for appeal, that being that he had been successful in his 2001 appeal before the St. Louis County Board of Equalization. The Hearing Officer properly determined that the 2001 BOE Decision was not relevant for the purposes of the 2003 valuation. In this, the Hearing Officer was not acting in a biased manner, he was simply applying the appropriate law to the case before him.

In all of this the Hearing Officer properly considered what facts, as they were, proffered by Complainant and then properly applied the applicable law to those facts. In short, the Hearing Officer recognized each of the three grounds stated in Mr. Dienoff=s Complaint for Review of Assessment and dealt with each of them in a proper fashion.

Complainant provided no specific information as to how the alleged bias of the Hearing Officer was manifested during the evidentiary hearing. It is obvious the claim that the Hearing Officer only listened to the Respondent=s staff is with out any basis, since clearly, the Hearing Officer listened to the testimony of both Complainant and Respondent=s appraiser. Complainant was permitted to testify and offer his opinion of value.

In like manner, no specific information was provided as to exactly what actions of the Hearing Officer constituted unfair conduct. There is no claim nor is there anything in the record from which it can be concluded that Complainant was not provided a full opportunity for a fair hearing. Complainant, like all taxpayers who file appeals with the Commission, was provided with a pamphlet on the conduct of appeals before the Commission. The pamphlet and instructions provided gives taxpayers ample information on what needs to be presented to establish the fair market value of their property.

Complainant did not provide any detail as to how the Hearing Officer allegedly failed to carry out his responsibilities under both the Constitution and statutes of Missouri. The Decision and record in this appeal establishes that the Hearing Officer set a prehearing conference for this case. Although Complainant did not appear, the Hearing Officer provided opportunity for the Mr. Dienoff to take the appeal on to an evidentiary hearing, which Complainant elected to do. The Hearing Officer duly informed the parties of the date for the evidentiary hearing and ordered that each party was to bring at least two copies of any documents they desired to have in introduced into evidence. The evidentiary hearing was held. Respondent presented an appraisal report and testimony of an appraiser. Complainant presented no documents to support his opinion of value, but only offered his oral testimony. In all of the procedure of prehearing, evidentiary hearing and rendering of the Decision, the Commission finds the Hearing Officer acted in a proper manner to carry out his statutory and constitutional duties on behalf of the Commission.

The Commission finds nothing in this record to support the general and undocumented claim of bias, or unfair and unconstitutional conduct by the Hearing Officer. Complainant=s claim of bias and unfair and unconstitutional conduct by the Hearing Officer is not well founded.

The claim asserted by Complainant under this point, like the claim of bias is unsupported by an specific reference to conduct of the Hearing Officer. Complainant failed to provide any specific and detailed examples of any unfair conduct on the part of the Hearing Officer. The Commission upon its review finds none.

The claim that the Hearing Officer=s ruling was Auncapricious@ (sic) is not addressed in any specific manner either. To the contrary, the Commission observes from the record and the Decision nothing to support a conclusion that the Decision rendered herein is capricious in any manner, or that the Hearing Officer=s conduct in rendering same was capricious.

The assertion that the Hearing Officer=s Decision is discriminatory has no basis in fact either. Complainant makes the claim, but fails to demonstrate any facts from the record or the Decision to support this claim. The Commission=s review reveals absolutely no justification to find discriminatory conduct by the Hearing Officer.

The Decision rendered by the Hearing Officer is based upon clear and convincing evidence as propounded by Respondent=s Counsel and appraiser. There is a sound basis in fact from the evidence to support the conclusions and determinations of the Hearing Officer. Complainant failed to state specific grounds upon which it was claimed the Decision was erroneous.

Complainant=s claim of an unfair, uncapricious (sic) and discriminatory ruling by the Hearing Officer is not well founded.

For his final point Complainant makes a general assertion that somehow the Hearing Officer in rendering his Decision violated the Hancock Amendment. Due to the fact that Complainant provides no explanation, analysis or points to any facts from the record relative to this claim, the Commission is left totally in the dark as to what possible action by the Hearing Officer could be in violation of the Article X, Sections 16 through 24, generally known as AThe Hancock Amendment.@

The Commission is unaware of any part of the Hancock Amendment which was violated by the Decision rendered herein. Nor is there any provision of the Hancock Amendment which the Commission understands to have been violated by the manner in which the Hearing Officer handled the present case. In short, this is an allegation without any basis or merit.

Complainant=s Application for Review failed to state Aspecific detailed grounds upon which it is claimed the decision is erroneous.@ Section 138.432, Decision, p. 18. The general grounds stated by Complainant without a reasoned and logical analysis, and demonstration of underlying facts to support the alleged errors does not satisfy the statutory mandate. Making general assertions as grounds for review which do not tie directly to specific actions, rulings, findings, or conclusions by the Hearing Officer fails to meet the statutory standard.

This is what Complainant did in this instance. Mr. Dienoff failed to demonstrate in any instance of a specific error of fact or in applying the law by the Hearing Officer. In the absence of specific facts of error or specific errors in applying the law, the Application for Review must be summarily denied.

The Hearing Officer did not err in his determinations as challenged by Complainant.

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 July 21, 2004.

STATE TAX COMMISSION OF MISSOURI

Sam D. Leake, Chairman

Bruce E. Davis, Commissioner

Jennifer Tidwell, Commissioner

ORDER

On July 21, 2004, the Commission entered its Order Affirming Hearing Officer Decision Upon Application for Review.

On August 22, 2004, Complainant submitted to the Commission by facsimile transmission his Motion to Set Aside Decision of Commission and Order a Rehearing.

The Commission Order Affirming the Hearing Officer Decision was mailed on July 21, 2004, and stated at page 9, AJudical 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.@ Emphasis added. The decision of the Commission upon an application for review is be subject to judicial review in the time and manner provided by subsection 4 of section 138.470. Section 138.432, RSMo. The Commission decision upon an application for review is subject to judicial review as provided in Sections 536.100 to 536.140, RSMo, except that venue of proceedings is in the county where the real property is situated. Section 138.470.4, RSMo. Judicial review of an Order of the Commission may be instituted by filing a petition in the circuit court of the county of proper venue (St. Louis County, in this appeal) within thirty days after the mailing of the notice of the Commission=s final decision. Section 536.110.1, RSMo.

There is no provision for the filing of a Motion to Set Aside Decision of Commission and Order a Rehearing, under state statute or Commission rule after an Application for Review has been ruled upon as in this instance. Complainant=s proper course of action was to have filed in the Circuit Court of St. Louis County on or before August 20, 2004 (30 days after the issuance of the Commission Order Affirming Hearing Officer Decision) a Petition for Judicial Review under Section 536.110, et. seq.

The Commission is without jurisdiction to entertain Complainant=s Motion, accordingly it is denied.

SO ORDERED October 22, 2004.

STATE TAX COMMISSION OF MISSOURI

Sam D. Leake, Chairman

Bruce E. Davis, Commissioner

Jennifer Tidwell, Commissioner