WILEY WELBORN,	)
	)
Complainant,	)
	)
v.	)		Appeal Number 04-49003
	)
CURTIS KOONS, ASSESSOR,	)
CASS COUNTY, MISSOURI,	)
	)
Respondent.	)

Complainant has failed to present substantial and persuasive evidence demonstrating that his property would sell for no more than $15,220 on January 1, 2004. The value of $20,070 (assessed value $6,690) as determined Assessor and approved by the Board of Equalization, is AFFIRMED.

The issue in this the true value in money of one 2003 Buick Rendezvous CX, two wheel drive automobile on January 1, 2004.

Complainant appeals the assessment of his 2003 Buick Rendezvous CX on the ground of overvaluation. Said vehicle was valued by the Assessor at $20,070. The Board of Equalization approved said value.

On March 10, 2005, an evidentiary hearing was held before Tax Commission hearing officer, Luann Johnson, at the Cass County Courthouse in Harrisonville, Missouri. Complainant and Respondent appeared pro se.

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

2. The parties do not dispute the highest and best use of the subject property.

3. The property under appeal is a 2003 Buick Rendezvous CX 4 door sport utility vehicle, serial number 3G5DA03E33S505606. Complainant Ex. 2.

4. Complainant purchased the Buick Rendezvous on April 23, 2003, for $19,988.00. The mileage at the time of purchase was 17,345. Complainant Ex. 2.

5. Complainant traded in a 1999 Buick Century 4 door sedan. He was given a trade in allowance of $6,987 for this vehicle. Complainant Ex. 2.

6. On the tax day, January 1, 2004, the subject vehicle had 35,000 miles.

7. In his appeal, Complainant asserted a market value of $13,550. Complaint for Review of Assessment. At hearing, Complainant orally amended his pleading to assert a market value of $15,220. Complainant’s opinion of value is taken from NADA books published after the tax day. Complainant’s Ex. 2, 3.

8. The assessor is required to use the October, 2003, NADA book to determine value for the subject property on January 1, 2004. Section 137.115.9, RSMo 2000.

9. The October 2003 NADA trade in value for a similar vehicle was $22,170 (assessed value $7,390). Respondent Ex. A, pg. 4. After an adjustment for mileage, the Assessor determined the market value of the vehicle to $20,070 (assessed value $6,690).

10. The true value in money of the subject property on January 1, 2004, was at least $20,070.

True value in money is the fair market value of the property on the valuation date, and is a function of its highest and best use, which is the use of the property which will produce the greatest return in the reasonably near future. Aspenhof Corp. v. State Tax Commission, 789 S.W.2d 867, 869 (Mo. App. 1990).

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 who is 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).

In Westwood Partnership v. Gogarty, 103 S.W.3d 152 (Mo. App. E.D. 2003), the court of appeals stated:

There is no longer an automatic presumption regarding the correctness of an assessor's valuation. Section 138.431.3. This statutory change from the previous situation in which the assessor's valuation was presumed to be correct does not mean that there is now a presumption in favor of taxpayer. The taxpayer in a Commission tax appeal still bears the burden of proof and must show by a preponderance of the evidence that the property was improperly classified or valued. Industrial Development Authority of Kansas City v. State Tax Commission of Missouri, 804 S.W.2d 387, 392 (Mo. App.1991).

In Reeves v. Snider, 115 S.W.3d 375 (Mo. App. S.D. 2003), the court of appeals described the taxpayer's burden as follows:

Taxpayers were the moving parties seeking affirmative relief, and as such, they bore the burden of proving the vital elements of their case, i.e., the assessments were "unlawful, unfair, improper, arbitrary or capricious. Cupples Hesse Corp. v. State Tax Comm'n, 329 S.W.2d 696, 702 (Mo.1959); Westwood P'ship v. Gogarty, 103 S.W.3d 152, 161[8] (Mo. App. 2003); 84 C.J.S. Taxation §§ 710, 726. This is true regardless of the existence or non-existence of the challenged presumption. As the Supreme Court of Missouri explained, "even were we to hold that it [the presumption] has been overcome, the burden of proof on the facts and inferences would still remain on petitioner, for it is the moving party seeking affirmative relief. Cupples, 329 S.W.2d at 702[16]. See also 84 C.J.S. Taxation § 710, which states: "Even where there is no presumption in favor of the assessor's ruling, if no evidence is offered in support of the complaint, the reviewing board is justified in fixing the valuation complained of in the amount assessed by the assessor." To prevail, Taxpayers had to "present an opinion of market value and then ... present substantial and persuasive evidence that the proposed value is indicative of the market value of the subject property on tax day." Daly v. P.D. George Co., 77 S.W.3d 645, 651 (Mo. App. 2002).

Substantial evidence is that evidence which, if true, has probative force upon the issues, i.e., evidence favoring facts which are such that reasonable men may differ as to whether it established them, and from which the Commission can reasonably decide an appeal on the factual issues. 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).

The assessor of each county and each city not within a county shall use the trade-in value published in the October issue of the National Automobile Dealers’ Association Official Used Car Guide, or its successor publication, as the recommended guide of information for determining the true value of motor vehicles described in such publication. Section 137.115.9, RSMo 2000.

Complainant has failed to present substantial and persuasive evidence tending to indicate that the Assessor and Board of Equalization overvalued his property or that the value placed on the property is unlawful, unfair, improper, arbitrary or capricious.

The assessed value determined by the Assessor and approved by the Board of Equalization, is AFFIRMED.

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 Cass 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 April 8, 2005.

STATE TAX COMMISSION OF MISSOURI

Luann Johnson

Hearing Officer