DEAN ALINDER,	)
	)
Complainant,	)
	)
v.	)		Appeal Number 03-32571
	)
SCOTT SHIPMAN, ASSESSOR,	)
ST. CHARLES COUNTY, MISSOURI,	)
	)
Respondent.	)

Decision of the St. Charles 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 is set at $151,490, assessed value of $28,780.

Complainant appeared pro se.

Respondent appeared by Counsel, Charissa Mayes, Assistant 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 St. Charles County Board of Equalization which sustained the valuation of the subject property. The Assessor determined an appraised value of $151,490 (assessed value of $28,780, as residential property). Complainant proposed a value of $130,000 (assessed value of $24,700). A hearing was conducted on February 3, 2004, at the St. Charles County Administration Building, St. Charles, 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. His opinion of value for the subject property of $130,000 was based upon the general condition of the subject house, various elements of deferred maintenance and the purchase of the subject property in 1999 for $130,000. Complainant offered into evidence three exhibits.

Exhibit A consisted of (1) a listing of needed repairs to the subject house, with estimates as to the cost for such repairs and (2) four photographs of an erosion condition on the subject lot.

Exhibit B was a copy of a June 9, 2001 real estate agent=s letter giving an opinion of fair market value of the subject property to be $130,000.

Exhibit C was a copy of the April 6, 2001 Notice of Real Estate Assessment on the subject property.

Counsel for Respondent objected in part to Exhibit A and Exhibits B and C. The Objection was sustained as to the cost numbers on the listed of needed reapers in Exhibit A and as to the objections to Exhibits B and C. Exhibit A was received as to the other items contained therein. See, DECISION, infra, as to discussion of admissibility and relevance of Complainant=s evidence.

Mr. Alinder requested that official notice be taken of the Hearing Officer=s Decision on the subject property in Appeal No. 00-33000, setting the fair market value at $130,000.

Respondent placed into evidence the testimony of Mr. Steven D. Riney, appraiser for St. Charles County. The appraiser testified as to his appraisal of the subject property. The Appraisal Report, Exhibit 1, of Mr. Riney was received into evidence. Mr. Riney arrived at an opinion of value for the subject property of $165,000 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. A cost approach was also performed which resulted in an indicated value of $146,720.

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

2. The subject property is located at 146 Shelbourne Dr., St. Charles, Missouri. It is identified by map number 6-0018-4956-00-89, parcel number 083020A000. The property consists of a .32 of an acre lot improved by a one-story brick and frame house with a continuous wall foundation, asphalt shingles, gables roof, carpet and vinyl flooring. The house has seven rooms, with three bedrooms and one and a half bathrooms. There are 2,430 square feet of living area. The house was built in 1977. It has an unfinished basement, a two-car attached garage and a two car basement garage.

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

4. The 1999 sale of the subject property was not at a time relevant for the purpose of arriving at the fair market value of the subject property as of January 1, 2003. The Decision in Appeal 00-33000 was not relevant as to the fair market value of the subject property on January 1, 2003.

5. 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 $130,000.

6. 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 to 8 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 location, site, quality of construction, age, condition, design and appeal, bedroom and bathroom count and other amenities.

7. The comparables were described as follows:

Comparable 1 (3624 Runnymeade Dr. - 2 blocks northwest of the subject) sold in July 2002 for $210,600. This property consists of a lot similar in size to the subject improved by a one-story brick and frame house, built in 1976. The house has eight rooms, with three bedrooms and two baths, with 2,162 square feet of living area, an unfinished basement and a two-car attached garage.

Comparable 2 (3024 W. Adams St. - 8 blocks southeast of the subject) sold in May 2002 for $148,500. This property consists of a lot similar in size to the subject improved by a one-story brick and frame house, built in 1965. The house has five rooms, with three bedrooms and two baths, with 1,840 square feet of living area, an unfinished basement and a two-car attached garage.

Comparable 3 (3608 Runnymeade Dr. - 2 blocks northwest of the subject) sold in May 2002 for $185,000. This property consists of a lot similar in size to the subject improved by a one-story brick and frame house, built in 1976. The house has seven rooms, with three bedrooms and one bath, with 1,789 square feet of living area, an unfinished basement and a two-car attached garage.

Comparable 4 (3609 Runnymeade Dr. - 2 blocks west of the subject) sold in March 2001 for $220,000. This property consists of a lot similar in size to the subject improved by a one- story frame house, built in 1977. The house has seven rooms, with three bedrooms and two and a half baths, with 2,671 square feet of living area, an unfinished basement and two-car attached garage.

8. The appraiser made various adjustments to the comparable properties for differences which existed between the subject and each comparable. The adjustments were appropriate to account for differences between the subject and the comparables. The appraiser properly account for the generally inferior condition of the subject property in his adjustments.

9. The net adjustments for Comparable 1 amounted to -$48,410 or 22.9% of the sales price. The net adjustments for Comparable 2 amounted to -$7,810 or 5.3% of the sales price. The net adjustments for Comparable 3 amounted to -$33,050 or 17.9% of the sales price. The net adjustments for Comparable 4 amounted to -$38,050 or 17.3% of the sales price.

10. The adjusted sales prices for the comparables calculated to $162,190, $140,690, $151,950 and $181,950, respectively. The appraiser concluded on a $165,000 value which calculated to a value per square foot of $67.90 compared with the sales prices per square foot of living area for the comparables of $97.41, $80.71, $103.41 and $82.37.

11. Respondent=s evidence met the standard of clear, convincing and cogent evidence to establish the value of the subject, as of January 1, 2003, to be $151,490, 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).

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, p. 4.

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 $151,490, 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. Charles 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.

The evidence presented by Complainant failed to establish the fair market value of the subject property. Stating an opinion of value based simply upon the general deteriorated condition of the property and a prior sale approximately four years prior to tax date is not sufficient to meet the taxpayer=s burden of proof. It fails to establish either the proper elements or a proper foundation for the owner=s opinion. It leaves the owner=s opinion as simply an opinion without any substantiation. Such an opinion has no probative value.

Due to the fact that often in pro se appeals before the Commission, taxpayers will come forward with various documents they desire to offer into evidence which are in no manner probative on the issue of true value in money or any collateral issues, it is appropriate to give some consideration as to why Mr. Alinder=s Exhibits were not persuasive to establish or support his opinion of value. Furthermore, this case presents the opportunity for the Hearing Officer to provide some direction as to the Commission=s position relative to cost estimates for repairs.

Exhibit A was the listing by Complainant of needed repairs to the subject house with a listing of cost estimates. The cost estimates for each item were the result of oral discussions the taxpayer had with some unnamed individual who is in construction and/or repair work. No actual signed, dated and detailed bids were offered in support of the cost estimates.

A document listing needed repair and maintenance items by an owner is admissible. However, the listing of cost estimates based upon statements made to the owner by some unidentified individual is hearsay and will generally be excluded by this Hearing Officer, upon objection. On the other hand, it has generally been the practice of the Commission and this Hearing Officer to accept into evidence copies of repair estimates which are on the letterhead or a estimate sheet of a identified company, that is dated as to when the estimate was given, which sufficiently identifies the estimate as applicable to the property under appeal and is signed by someone on behalf of the company.

Notwithstanding that a hearsay objection is generally applicable to such repair estimates, such repair estimates will usually be received into evidence on the ground that it forms the basis for the owner=s opinion as to the cost for repairs. Furthermore, such repair bids are often helpful in actually providing support for adjustments made by an appraiser for either the Assessor or the taxpayer. Furthermore, it has been found to be the practice of various appraisers when testifying before the Commission to place reliance on such repair estimates. Therefore, even though an owner is not an expert for appraisal purposes, the offering of an estimate which generally is given consideration by an appraiser is very similar to permitting the appraiser to rely on hearsay information in forming an opinion.

In this appeal, because there was no substantiation, as described above, as to the listed costs for repairs, that portion of Exhibit A was excluded upon Counsel for Respondent=s Objection.

Taxpayers are usually very interested in getting photographs into evidence to establish the various condition factors that they deem detract from the value of their property. In virtually all cases such photographs are received into evidence. However, taxpayers need to be aware that photographs establish no dollar value for what is being shown. In other words, photographs do little, if anything to establish fair market value.

It is always good for a Hearing Officer to see a photograph that illustrates the exact repair or deferred maintenance problem. As the saying goes, a picture is worth a thousand words. However, no matter how good the picture may be, it doesn=t tell the Hearing Officer anything as to how much the factor represented in the photograph detracts from the property=s fair market value. It only demonstrates a condition factor.

In this instance, the subject property suffers from erosion toward the back of its lot. However, the photographs demonstrate nothing as to how much this factor detracts from the value of the property. The cost of correcting the erosion problem will not necessarily translate into the same dollars in market value. Mr. Riney make an adjustment for this factor to his comparables of $20,000 to $40,000. This appears to be more than an adequate adjustment to account for the erosion issue.

Exhibit B was excluded on grounds of hearsay and relevancy. The letter is pure hearsay. Without the writer of the letter being present to testify as to his opinion of value the letter is not admissible. Furthermore, the letter is dated June 9, 2001 and does not give a date that the opinion of value would be applicable. It is clear it is not applicable to January 1, 2003. Therefore it has no relevance in the present case.

Exhibit C was excluded on the simple ground of relevancy. What the Assessor may have assessed the subject property for in another assessment cycle does nothing to prove the fair market value as of a later assessment cycle. In this instance, there is no probative value to what the fair market value for 2001 happened to be as determined by the Assessor of St. Charles County. Mr. Alinder wished to offer this document to show that he had been over taxed in 2001. That issue was and is not before the Hearing Officer. Notices of assessment, even for the year in dispute do not have probative value as to fair market value since there is no presumption that the Assessor=s value is correct.

Complainant requested the Hearing Officer to take official notice of his prior Decision in Appeal No. 00-33000.

Agencies shall take official notice of all matters of which the courts take judicial notice. Section 536.070(6), RSMo. Courts will take judicial notice of their own records in the same cases. State ex rel. Horton v. Bourke, 129 S.W.2d 866, 869 (1939); Barth v. Kansas City Elevated Railway Company, 44 S.W. 788, 781 (1898). In addition, courts may take judicial notice of records in earlier cases when justice requires - Burton v. Moulder, 245 S.W.2d 844, 846 (Mo. 1952); Knorp v. Thompson, 175 S.W.2d 889, 894, transferred 167 S.W.2d 105 (1943); Bushman v. Barlow, 15 S.W.2d 329, 332 (Mo. banc 1929)) - or when it is necessary for a full understanding of the instant appeal. State ex rel. St. Louis Public Service Company v. Public Service Commission, 291 S.W.2d 95, 97 (Mo. banc 1956).

The 2000 Decision found the fair market value of the subject property to be $130,000 based upon the actual sale of the property during 1999. There was no other basis for the Decision. The 1999 sale is no longer a timely sale in light of the evidence in this appeal of more recent sales in the subject neighborhood in 2001 and 2002. 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. St. Joe Minerals Corp. v. STC, 854 S.W.2d 526 (App. E.D. 1993). Complainant=s reliance upon either the 1999 sale of the subject or the Hearing Officer=s prior Decision is misplaced. Neither fact constitutes substantial and persuasive evidence that a willing buyer and willing seller would have agreed upon a sale price of $130,000 on January 1, 2003.

When the taxpayer offers essentially nothing more than an opinion of value based upon the fact that the property under appeal is in a generally deteriorated condition and a four year old sale will not be sufficient to support the opinion presented. Any opinion of value must be supported by an approach or methodology to value which is recognized by the Commission and the Courts of this state or by an actual market transaction at a time relevant to the tax date. The owner=s opinion standing alone does not possess the weight necessary to establish fair market value.

Respondent=s evidence in the form of the sales comparison approach was sufficient to clearly and convincingly establish the value of $151,490. Although at first glance it would appear some of the net adjustments made by Mr. Riney were rather large, upon closer examination it can easily be determined that such adjustments were warranted to account for the generally inferior condition of the subject on which Mr. Alinder based his complaint. However, the essential difference between the opinion offered by Mr. Alinder and that presented by Mr. Riney is that Mr. Riney utilized an accepted and recognized methodology of valuation.

Mr. Riney located comparable properties which had sold and then adjusted for differences between each comparable and the subject. More specifically, Mr. Riney took into account the matters of deferred maintenance and needed repairs and allocated a dollar adjustment to account for these important factors. Specifically, Mr. Riney recognized and adjusted for the erosion problem of the subject lot. By the utilization of this methodology, there is a rational basis upon which to establish a fair market value. The value arrived at of $165,000 more than establishes that the subject property is not overvalued at $151,490 as originally determined by the Assessor and sustained by the Board.

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

The assessed value for the subject property for tax years 2003 and 2004 is set at $28,780.

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. Charles 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 February 20, 2004.

STATE TAX COMMISSION OF MISSOURI

W. B. Tichenor

Hearing Officer