USA VACUUM,	)
	)
Complainant,	)
	)
v.	)		Appeal Number 04-34002
	)
	)
RANDY HOLMAN, ASSESSOR,	)
JEFFERSON COUNTY, MISSOURI,	)
	)
Respondent.	)

Decision of the Jefferson 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 year 2004 to be $250,600, assessed value of $83,500.

Complainant appeared by Counsel, David G. Dempsey, St. Louis, Missouri.

Respondent appeared by Counsel, David Senkel, Hillsboro, Missouri.

Case decided by Chief Counsel, R. Randall Turley, acting as Hearing Officer.

The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2004.

Complainant appeals, on the ground of overvaluation, the decision of the Jefferson County Board of Equalization, which sustained the valuation of the subject property. The Assessor determined an appraised value of $2,388,000 (assessed value of $796,000, as personal property). Complainant proposed a value of $250,600 (assessed value of $83,500, rounded). Case submitted on exhibit of Complainant.

Pursuant to Section 138.431.4, RSMo, this appeal has been assigned to Chief Counsel, R. Randall Turley for entering a Decision and Order. The Chief Counsel, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.

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

Complainant filed Exhibit A, a verified appraisal of Nancy L. Hopkins; statement of verification attached to said Exhibit and constitutes part of said Exhibit.

Respondent filed no exhibits or written direct testimony.

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

2. The subject property is located at Koller-Craft Plastic Products, 14000 Old highway 141, Fenton, Missouri. The property is identified as Assessor’s Account Number 143031. The property consists of plastic injection molds and heat stamp dies owned by Complainant.

3. The subject property has previously been the subject of appeal to the Commission:

2000 Appeal No. 00-34004, (11/6/01) TVM – $453,035, Assessed Value – $151,012;

2001 Appeal No. 01-34018, (4/16/03) TVM – $316,710, Assessed Value – $105,570;

2002 Appeal No. 02-34036, (2/27/04) TVM – $262,348, Assessed Value – $87,450;

2003 Appeal No. 03-34022, (9/20/04) TVM – $339,900, Assessed Value – $113,300.

4. By Order dated September 3, 2004, Complainant was to file and exchange exhibits on or before February 18, 2005. Complainant complied with said Order, and on February 4, 2004, filed Exhibit A, an appraisal of the subject property, with Verified Statement of Nancy L. Hopkins. The Verified Statement established the proper foundation for receiving Exhibit A into evidence without further written direct testimony of Ms. Hopkins. Order, April 5, 2005.

5. By Order dated September 3, 2004, Respondent was to file and exchange exhibits on or before April 1, 2005, and written direct testimony on or before May 2, 2005. Respondent did not file any exhibits or written direct testimony.

6. By Order dated April 11, 2005, Respondent was given until May 2, 2005, to show cause why the case should not be submitted upon Complainant’s Exhibit. Respondent was advised "Failure to respond in writing to this Order on or before May 2, 2005, shall be deemed waiver by Respondent of the evidentiary hearing and consent for submission of the case for decision upon the verified exhibit." Respondent did not make written response to the Order of April 11, 2005.

7. Reasonable opportunity for fair hearing was afforded to the parties. No response or objection was filed to the Order of April 11, 2005. The case may be decided upon Exhibit A.

8. Exhibit A tenders an opinion of fair market value (true value in money) of $250,600. Complainant’s appraiser arrived at this value on the same basis and in accordance with the Decisions of the Commission in Appeals 02-34026 and 03-34022. Exhibit A.

9. The value set forth in Exhibit A constitutes substantial and persuasive evidence of fair market value. The fair market value of the subject property as of January 1, 2004, is $250,600, assessed value of $83,500 ($250,600/3 = $83,533.34, rounded to $83,500).

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.

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 (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). Courts may take judicial notice of their own records in prior proceedings involving the same parties and basically the same facts. In re Murphy, 732 S.W.2d 895, 902 (Mo. banc 1987); State v. Gilmore, 681 S.W.2d 934, 940 (Mo. banc 1984); State v. Keeble, 399 S.W.2d 118, 122 (Mo. 1966).

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, under Section 138.431.3 RSMot), is accepted as true only until and so long as there is no substantial evidence to the contrary.

There shall be no presumption that the assessor’s valuation is correct. Section 138.431.3, RSMo. Notwithstanding the statutory provision of section 138.431.3, enacted by the legislature in 1992 (SB 630), the Supreme Court of Missouri has held, "A tax assessor’s valuation is presumed correct." Donna Snider v. Casino Aztar/Aztar Missouri Gaming Corp., SC86181, 3/01/2005. Citing to Hermel, supra; and Cupples Hesse Corp. v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).

The presumption of correct assessment is rebutted when the taxpayer presents substantial and persuasive evidence to establish that the assessor’s or Board’s valuation is erroneous and what the fair market value should have been placed on the property. Snider, Hermel & Cupples Hesse, supra.

In every case where a taxpayer has appealed the assessment of real or personal property to the Commission and the appeal has been successful, then in the next following and all subsequent years the basis upon which the assessor must base future assessments of the subject property shall be the basis established by the successful appeal and any increases must be established from that basis. Section 137.345.5, 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, supra.

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.

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).

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, supra. 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).

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).

The proper methods of evaluation and assessment of property are delegated to the State Tax Commission. C & D Investment Co. v. Bestor, 624, S.W.2d, 835, 838 (Mo. banc 1981); Equitable Life Assurance v. STC, 852 S.W.2d 376, 379 (Mo. banc 1993); Daily v. P. D. George, 77 S.W.3d 645 (Mo. App. E. D. 2002). It is within the purview of the Hearing Officer to determine the method of valuation to be adopted in a given case. See, Nance v. STC, 18 S.W.3d 611, 615 (Mo. App. W.D., 2000); Hermel, supra; Xerox Corp. v. STC, 529 S.W.2d 413 (Mo. banc 1975).

The Commission in four separate Decisions has previously addressed the appropriate method for valuation of the property under appeal. See, Finding of Fact 3, supra. In so doing, a basis both as to the true value in money for the Complainant’s molds and the proper methodology for determining true value in money has been firmly established. The assessor did not follow the mandate of Section 137.345.5 in valuing the property under appeal. See, Basis for Future Assessments, supra.

The Commission’s prior Decisions created a statutory presumption of correct assessment by the Commission regarding Complainant’s property, a presumption that overrides the ordinary presumption of correct assessment by the Board of Equalization in the present case. The action of the Board in sustaining the Assessor’s value when that value was not based upon the value determined by the Commission and the methodology established by the Commission in the prior appeals negates any presumption of correct assessment.

The only evidence of value on this record is that presented by Complainant. Complainant has met its burden of proof. Complainant’s evidence is based upon the same methodology utilized and approved by the Commission in the 2001, 2002 and 2003 Decisions. The evidence of value presented in Exhibit A has previously been found to be substantial and persuasive evidence of value. It is likewise in this appeal. The methodology established by this and prior decisions is the basis upon which the assessment for tax year 2005 is to be made and all subsequent years. See, Basis for Future Assessments, supra.

The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization for Jefferson County for the subject tax day is SET ASIDE.

The assessed value for the subject property for tax year 2004 is set at $83,500.

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 2000.

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 Jefferson 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 11, 2005.

STATE TAX COMMISSION OF MISSOURI

R. Randall Turley

Hearing Officer