EMANUEL L. GREENBERG,	)
	)
Complainant,	)
	)
v.	)		Appeal Number 03-30003
	)
MICHAEL O=FLAHERTY,	)
DIRECTOR OF ASSESSMENT,	)
JACKSON COUNTY, MISSOURI,	)
	)
Respondent.	)

 DECISION AND ORDER

HOLDING

The value determined by the Board of Equalization is SET ASIDE. The correct value for the subject property is $556,950 (assessed value $105,820).

The issue in this case is the true value in money of Complainant=s property on January 1, 2003, and January 1, 2004.

A hearing was conducted on January 22, 2004, before Hearing Officer Luann Johnson, at the Jackson County Courthouse, Kansas City, Missouri. Complainant appeared by counsel, Marsha A. Friedman. Respondent appeared by counsel, Michael LeVota.

The property under appeal is a 1,525 square foot condominium unit located on the 8th floor of AThe Walnuts.@ Respondent originally appraised the property at a market value of $728,000 (assessed value $138,320). The Board of Equalization reduced value to $585,000 (assessed value $111,150). Complainant asserts a value of $465,000 (assessed value $88,350). At hearing Respondent presented an appraisal report demonstrating a value under the market approach of $596,400 (assessed value $113,320). There is no presumption that the assessor=s valuation is correct. There is a presumption that the Board of Equalization=s value is correct.

Complainant introduced the following Exhibits:

Exhibit 1 - Appraisal report of Mark R. Cox, a state certified appraiser.

Exhibit 2 - An estimate of $28,030 to replace the windows.

Exhibit 3 - A three page summary, prepared by the county, indicating the value of various condominium units in The Walnuts.

Exhibit 4 - Answer to Complainant=s interrogatory 7 indicating the Board of Equalization values on other condominium units in The Walnuts.

Exhibit 5 - An M.L.S. listing for unit 4B at The Walnuts showing a listing price of $895,000 and a sale price of $835,000.

Exhibit 6 - An M.L.S. listing for unit 3A at The Walnuts showing a listing price of $560,000 and a sale price of $500,000.

Exhibit B - A chart prepared by the county showing the county=s 2003 values on the various different units in The Walnuts; sales information for some of the units; and a table showing sales information used for time adjustments.

Respondent introduced an appraisal report of Cynthia Ann Kerschbaum, a certified appraiser, which was marked Exhibit A.

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

2. The subject of this appeal is a 1,525 square foot condominium unit located in the complex commonly known as AThe Walnuts.@ The complex is located two blocks south of the County Club Plaza. The subject unit contains two bedrooms and 2.5 baths. The quality and condition of the unit is good. Functional utility is described as average. Other amenities include a garden view, assigned storage, covered storage for one car and a fireplace. Monthly dues provide a doorman until midnight and secured elevator access. The buildings are 75 years old but the units have an effective age of 15 years. The condominium conversion occurred in 1978. The property is identified as parcel number 30-537-01-02-00-0-00-000, more commonly known as 5049 Wornall Road, Unit 8-E, Kansas City, Jackson County, Missouri. (Exhibits 1, A).

3. Both appraisers used substantially the same methodology in appraising the subject property. However, Complainant=s appraiser asserts that differences in floor height are not recognized as affecting value because the units are sold based upon what is available at the time. A realtor working in the buildings agreed with this analysis. Respondent=s appraiser, on the other hand, asserts that such differences in floor height do affect market value and prepared a paired sales analysis demonstrating that unit values increase as floor height increases.

4. Respondent=s appraiser=s analysis indicated a generally upward trend in value based upon floor height. However, that trend was not wholly continuous, with a unit on the second floor and a unit on the sixth floor selling for more than a unit on the eighth floor; and with a unit on the fifth floor selling for more than a unit on the seventh floor.

5. Removing the adjustments for floor height in Respondent=s appraisal indicates adjusted sales prices of comparable sales as $556,950, $469,360 and $589,700. All comparable sales were located in The Walnuts and sold between February 2002 and March 2003, dates relevant to the valuation of the subject property. The comparable properties utilized by Respondent=s appraiser were on the first, fourth and seventh floor while the subject property is on the eighth floor. After removing the floor adjustment, the comparable sales had gross adjustments of 29%, 21% and 29%. The comparable requiring the fewest number of adjustments indicated a value of $556,950 before adjustment for floor height. That comparable was located on the seventh floor.

6. Complainant=s appraiser used two sales from The Walnuts and one from another condominium in the neighborhood. The sales occurred between January 2002 and June 2002, dates relevant to the valuation of the subject property. The adjusted sales prices of the comparable sales indicated a value for the subject property of $466,000, $440,000 and $466,000. The comparable properties used by Complainant=s appraiser were on the first, second, and third floors while the subject property is located on the eighth floor. Complainant=s appraiser made no adjustments for floor height. Gross adjustments for his comparables were 23.2%, 12.0% and 17.5%.

7. The evidence suggests that floor height has some influence on value at least some of the time. But, because the impact is not sufficiently quantified, it is not possible to make an adjustment for floor height in this case. However, Respondent has provided a sale of a similar unit located on the seventh floor. That unit sold for $787,500 in February of 2002. After adjustment for size and superior condition, that comparable suggested a value for the subject property of $556,950, a sum slightly less than the value determined by the Board of Equalization. Said value is also near the midrange of proposed values - without floor height adjustments - ($440,000; $466,000; $466,000; $469,360; $556,950; $585,800 [Board of Equalization]; and $589,700).

8. The most likely price the subject property would sell for on the tax day was $556,950.

9. No evidence was presented which suggested that any new construction or property improvements occurred after January 1, 2003. Therefore, the value established for 2003 shall also be the value for tax year 2004.

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 purchased by one desiring 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 which a specified interest in real property is likely to bring under the following conditions:

1. Consummation of a sale occurs as of a specified date;

2. An open and competitive market exists for the property interest appraised;

3. The buyer and seller are each acting prudently and knowledgeably;

4. The price is not affected by undue stimulus;

5. The buyer and seller are typically motivated;

6. Both parties are acting in what they consider their best interest;

7. Marketing efforts were adequate and a reasonable time was allowed for exposure to the open market;

8. Payment was made in cash in U.S. dollars or in terms of financial arrangements comparable thereto; and

9. The price represents the normal consideration for the property sold, unaffected by special or creative financing or sales concessions granted by anyone associated with the sale.

In order to prevail, Complainant must present an opinion of market value and then must present 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.

ASubstantial@ evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959). APersuasive@ 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, 27 S.W.2d 50, 53 (Mo. App. 1975).

The valuation of real property is not an exact science and decisions concerning value can never be more than educated guesses based upon the interpretation of historical data.

In this case, the pivotal dispute between the experts was whether or not a height impacted value. Complainant=s appraiser presented no market evidence on this point and Respondent=s market evidence was inconclusive. Consequently, this hearing officer determined that the best way to resolve the height factor issue was to review the sale that most closely resembled the height of the subject property. In this manner, the height dispute is minimized because the impact - or lack of impact - would be reflected in the value of the seventh floor unit.

After adjustments for size and condition, the seventh floor unit indicates a value for the subject unit of $556,950.

At hearing, Complainant testified that his unit was less desirable than some of the other units because his unit still had all of the old windows which would cost in excess of $28,000 to replace; and because his heating had not been upgraded and he had no way to regulate the heat in his apartment. These are significant obsolescence problems. However, Respondent=s appraiser made a $126,000 adjustment for the superior condition of the seventh floor unit. This adjustment is sufficient to cover the costs of the upgrades which the subject unit needs.

The assessed valuation for the subject property for tax year 2003, as determined by the Board of Equalization, is SET ASIDE. The Clerk is hereby ordered to put a new value of $556,950 (assessed value $105,820) on the property for tax years 2003 and 2004.

A party may file with the Commission an application for review of a hearing officer decision within thirty (30) days of the mailing of such decision. The application shall contain specific detailed 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.

If an application for review of a hearing officer 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 Jackson 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 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 5, 2004.

STATE TAX COMMISSION OF MISSOURI

Luann Johnson

Hearing Officer

On February 5, 2004, Hearing Officer Luann Johnson entered her Decision and Order (Decision) setting aside the assessment by the Jackson County Board of Equalization and found fair market value for the property under appeal to be $556,950.

Complainant timely filed (March 1, 2004) his Application for Review of the Decision. Complainant was given leave to file a Supplement to the Application for Review. This was filed on March 24, 2004. Respondent filed his Response on March 8, 2004.

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 she 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 her 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=s Application for Review and the Supplement thereto was simply and arguing of various conclusions reached by the Hearing Officer. Complainant failed to set forth any legal claim or basis as a ground to find the Hearing Officer had abused her discretion or acted in an arbitrary or capricious manner. Complainant simply had an opinion as to the fair market value of the property different from that determined by the Hearing Officer. In other words, Complainant failed to state specific grounds upon which it was claimed the decision was erroneous.

The points set forth in the Application for Review had to do with various aspects of the Hearing Officer=s Decision, all of which had to do with the weight to be afforded the evidence on the record. The weight to be given the evidence is generally a matter for the Hearing Officer to decide. The fact that someone else might give more weight to some other aspect of the evidence does not raise a sufficient challenge to overturn the Hearing Officer=s Decision.

In virtually every appeal in which there are two different appraisal reports, the party which did not prevail could always put forth the type of arguments which Complainant raises in his Application for Review. In point of fact very similar arguments could have been advanced by Respondent had he elected to file an Application for Review. However, any such arguments as to the weight that should be given evidence would have been no more persuasive than those advanced by Complainant.

It is clear Hearing Officer Johnson considered and weighed all of the evidence and arrived at a conclusion of value that is supported by the evidence in this record. The fact that her final conclusion of value is less than that determined by the Board, and less than that proffered by Respondent=s appraiser, but more than that presented by Complainant=s evidence demonstrates on its face that the Decision gave some weight to various aspects of evidence present on both sides in this case. However, nothing that Complainant has raised establishes a failure to properly apply the appropriate law to the facts.

It is not necessary that the Commission understand the exact mental process that a Hearing Officer applies in any given case to arrive at a conclusion of value. It is only necessary that the evidence on the record be such that a reasonable mind could have reached the same conclusion. That is clearly the case in this appeal. In the absence of specific facts of error or specific errors in applying the law, the Application for Review must be summarily denied. Difference of opinion as to how evidence should be viewed and weighed does not constitute sufficient ground to overturn or modify the Hearing Officer=s Decision.

The Hearing Officer did not err in her 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