MICHAEL BENNETT,	)
	)
Complainant,	)
	)
v.	)		Appeal Number 03-10172
	)
PHILIP MUEHLHEAUSLER, ASSESSOR,	)
ST. LOUIS COUNTY, MISSOURI,	)
	)
Respondent.	)

Decision of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor, SET ASIDE, Hearing Officer finds true value in money for the subject property for tax years 2003 and 2004 to be $48,700, assessed value of $9,250.

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 the true value in money for the subject property on January 1, 2003.

Complainant appeals, on the ground of overvaluation, 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 $49,400 (assessed value of $9,390, as residential property). Complainant proposed a value of $42,000 (assessed value of $7,980). A hearing was conducted on April 15, 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. Exhibit A consisting of 16 photographs of the subject house and garage was received into evidence. Complainant also offered into evidence the following exhibits:

Exhibit B A copy of newspaper listing of sales of properties in the subject zip code.

Exhibit C A copy of newspaper listing of sales of properties in the subject zip code.

Exhibit D A copy of a real estate listing from the Internet.

Exhibit E A copy of the original real estate listing on the subject property at the time of Complainant=s purchase.

Exhibits B, C, D and E were objected to by Counsel for Respondent. Objection was sustained and said exhibits were excluded from evidence.

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 $48,700 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.

Exhibit 2 a MLS listing on property at 514 Millman, showing a current listing price of $89,900 was received into evidence. This exhibit was only offered and received in response to testimony by Complainant relative to an alleged earlier sale of the property at 514 Millman. It presented no evidence as to fair market value of the subject property on January 1, 2003.

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 423 Millman, Ferguson, Missouri. It is identified by locator number 11H510206. The property consists of a .14 of an acre lot. It is improved by a 1 story vinyl sided single-family structure of average quality construction. The house was built in 1947 and appears to be in average condition. The residence has a total of 5 rooms, which includes 2 bedrooms, 1 bath and contains 837 square feet of living area. There is a full basement and a detached 1-car garage. There was no listing or sale of the property within the three years prior to January 1, 2003. Exhibit 1, p. 5.

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 $42,000.

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 3 blocks of the subject. Each sale property sold at a time relevant to the tax date of January 1, 2003. The properties were similar to the subject in location, style, quality of construction, age, condition, room and bedroom count, number of baths, living area and other amenities. Exhibit 1, pp. 6-7.

6. The comparables were described as follows:

Comparable 1 (539 Ames - 3 blocks northeast of the subject) sold in September 2001 for $50,000. This property consists of a .16 of an acre lot improved by a 1 story aluminum sided single-family structure of average quality construction. The house was built in 1954 and appears to be in average condition. The residence has a total of 5 rooms, which includes 3 bedrooms, 1 bath and contains 816 square feet of living area. There is a full basement. There is no garage or car port.

Comparable 2 (514 Superior - 2 blocks east of the subject) sold in September 2001 for $54,000. This property consists of a .21 of an acre lot improved by a 1 story vinyl sided single- family structure of average quality construction. The house was built in 1948 and appears to be in fair to average condition. The residence has a total of 5 rooms, which includes 2 bedrooms, 1 bath and contains 837 square feet of living area. There is a full basement. There is no garage or car port.

Comparable 3 (528 Ames - 3 blocks northeast of the subject) sold in May 2001 for $48,500. This property consists of a .16 of an acre lot improved by a 1 story vinyl sided single- family structure of average quality construction. The house was built in 1954 and appears to be in average condition. The residence has a total of 5 rooms, which includes 2 bedrooms, 1 bath and contains 992 square feet of living area. There is a full basement. There is no garage or car port.

7. The appraiser made various adjustments to the comparable properties for differences which existed between the subject and each comparable. All adjustment 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 -$500 or 1% of the sales price. The net adjustments for Comparable 2 amounted to -$5,000 or 9.26% of the sales price. The net adjustments for Comparable 3 amounted to -$1,100 or 2.27% of the sales price.

9. The adjusted sales prices for the comparables calculated to $49,500, $49,000 and $47,400, respectively. The appraiser concluded on a $48,700 value which calculated to a value per square foot of $58.18 compared with the sales prices per square foot of living area for the comparables of $61.27, $64.52 and $48.89.

10. Respondent did not have to meet a standard of clear, convincing and cogent evidence in this appeal, under the provisions of Section 137.115, RSMo, as he was not seeking to sustain the original valuation presumed to have been made by a computer, computer-assisted method or a computer program.

11. Respondent=s evidence met the standard of substantial and persuasive to establish the value of the subject, as of January 1, 2003, to be $48,700.

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).

The presumption in favor of the Board is not evidence. A presumption simply accepts something as true without any substantial proof to the contrary. In an evidentiary hearing before the Commission, the valuation determined by the Board, even if simply to sustain the value made by the Assessor (which is not presumed to be correct), is accepted as true only until and so long as there is no substantial evidence to the contrary.

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. 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).

Respondent, when advocating a value different from that determined by the original valuation or a valuation made by the Board of Equalization, must meet the same burden of proof to present substantial and persuasive evidence of the value advocated as required of the Complainant under the principles established by case law. Hermel, Cupples-Hesse, Brooks, supra.

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).

Complainant=s opinion of value of $42,000 was not supported by any evidence which is recognized and accepted by the courts of this state or by the Commission. In the absence of evidence to support and to substantiate an owner=s opinion of value, that opinion has no probative value. This is because it is not demonstrated to have been based upon the proper elements or a proper foundation for the valuation of real property.

The photographs received into evidence are helpful to understand the general condition of the subject house and garage. However, photographs do not establish fair market value, nor do they establish the appropriate amount of adjustment, if any, that should be made to comparable properties in a sales comparison appraisal. According, while the photographs have relevance, they provide no basis upon which a value of $42,000 can be established.

Complainant=s other exhibits were excluded. Newspaper listings or Internet listings that only provide the address and sale price of properties, without additional data to demonstrate and establish a true level of comparability for purposes of an appraisal have no probative value and lack any relevancy. In like manner, the original listing for a property, unless it is at a time relevant to the appropriate tax date (usually within 2 or 3 years, depending on a given property) is not probative to establish fair market value.

The appraisal report of Mr. Lincoln constitutes substantial and persuasive evidence to establish fair market value of the property and warrants a small reduction in value from that originally determined by the Assessor. The sale properties relied upon called for a minimal amount of adjustments for the small amount of differences between the comparables and the subject. The sales selected were those that were the best possible available to the appraiser for this appraisal problem.

Complainant failed to present substantial and persuasive evidence to establish that his opinion of value was based upon proper elements and a proper foundation so as to accord any probative value to it. Respondent establish the fair market value by substantial and persuasive evidence relying upon an accepted and recognized approach to the valuation of real property. The fair market value for the subject property as established by Respondent=s appraisal was $48,700 as of January 1, 2003.

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 SET ASIDE.

The assessed value for the subject property for tax years 2003 and 2004 is set at $9,250.

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 April 21, 2004.

STATE TAX COMMISSION OF MISSOURI

W. B. Tichenor

Hearing Officer

On April 21, 2004, Hearing Officer W. B. Tichenor entered his Decision and Order (Decision) setting aside the assessment by the County Board of Equalization sustaining the Assessor=s original valuation and found the true value in money for the property under appeal to be $48,700.

Complainant timely filed (5/12/04) his Application for Review of the 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=s letter setting forth his Application for Review expressed his opinions about the appeal process, questioned the exclusion of exhibits and asserted that alleged deteriorating values in the subject neighborhood were not considered. Complainant failed to set forth any legal claim or basis as a ground to find the Hearing Officer had abused his 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. In the absence of specific facts of error or specific errors in applying the law, the Application for Review must be summarily denied.

As to concerns relative to the appeal process, a review of the record does not reveal that there was any improper handling of the appeal by the Hearing Officer. The Respondent has the right to present the evidence of an appraisal performed by a staff appraiser. There is nothing improper in permitting the appraiser to testify and present his appraisal.

The claim regarding the exclusion of certain exhibits offered by the Complainant presents no basis to overturn or modify the Hearing Officer=s Decision. A proper objection was made by Respondent=s Counsel. The Hearing Officer properly ruled on the objection, sustaining it and thereby excluding the documents which were offered. The Hearing Officer addressed why newspaper listings and the original sale listing on the property were not relevant at page 12 of the Decision.

Finally, as to Complainant=s assertion of property values in the subject neighborhood deteriorating, there is simply no evidence in this record to support such a claim. Furthermore, the evidence presented by Respondent clearly demonstrated that homes like the subject, that are withing 2 or 3 blocks of Complainant=s home were selling in a range of $48,000 to $54,000 in a relevant time frame to the January 1, 2003, valuation date. Complainant=s claim on this matter simply was not supported by any substantial and persuasive evidence. Respondent=s evidence clearly established the value of $48,700 as found by the Hearing Officer.

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