State Tax Commission of Missouri

 

CHESTER L. BOEKE,                                    )

)

Complainant,                )

)

v.                                                         )           Appeal Number 05-32536

)                        

SCOTT SHIPMAN, ASSESSOR,                  )

ST. CHARLES COUNTY, MISSOURI,         )

)

 Respondent.                )

 

 

DECISION AND ORDER

 

HOLDING

 

Decision of the St. Charles County Board of Equalization reducing the assessment made by the Assessor, SET ASIDE, true value in money for the subject property for tax years 2005 and 2006 set at $160,000, assessed value of $30,400.

Complainant appeared pro se.

Respondent appeared by Counsel, Charissa Mayes, Assistant County Counselor.

Case heard and decided by Senior Hearing Officer W. B. Tichenor.

ISSUE

The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2005.

SUMMARY

Complainant appeals on the ground of overvaluation the decision of the St. Charles County Board of Equalization, which reduced the valuation of the subject property.  The Assessor determined an appraised value of $168,120 (assessed value of $31,940, as residential property).  The Board reduced the value to $151,430, assessed value of $28,770.  Complainant proposed a value of $145,000 (assessed value of $27,550).  A hearing was conducted on February 28, 2005, 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’s Evidence

Complainant testified in his own behalf.  He stated his opinion of fair market value was $145,000, based on Exhibit B.  Exhibit B was one page of a CMA (Competitive Market Analysis) Report by Coldwell Banker Gundaker on which eight properties are listed.  The subject was not listed on this document.  Complainant offered into evidence Exhibit A – Opinion article from Suburban Journal of February 12, 2006, by Jerry Smith; Exhibit C letter to Complainant from Dennis Hess, Review Appraiser for Respondent.  Exhibits A and B were objected to by Counsel for Respondent.  Objections were sustained.  Exhibits were excluded from evidence as hearsay and irrelevant on the issue of the fair market value of the subject property.  Exhibit C was received into evidence, but provided no support for Complainant’s opinion of value.

Respondent’s Evidence

Respondent offered into evidence the Appraisal Report (Exhibit 1) of Mr. Steven D. Riney, Supervisor of Residential Property for St. Charles County.  Mr. Riney testified as to his appraisal of the subject property.  Exhibit 1 was received into evidence.  Mr. Riney arrived at an opinion of value for the subject property of $160,000 based upon a sales comparison approach to value.  In performing his sales comparison analysis, the appraiser relied upon the sales of six split foyer or split level properties which he deemed to be comparable to the subject property.

Mr. Riney adjusted for various differences between each comparable and the subject.  The adjustments as a percentage of sale prices of the comparables were less than 12.5%, 5.6%, 15.2%, 4.4%, less than 1% and 20.1% for the five properties respectively.  The adjusted sales prices calculated to $166,190, $159,760, $166,000, $156,630, $178,320 and $159,780.  The median adjusted sales price was $162,880.  Mr. Riney gave equal weight to each sale.  The average adjusted sales price was $164,447, rounded to $164,450.  The per square foot indicated value at $160,000 was $121.21.  This falls in the range of the unadjusted per square foot sales prices of $142.43, $117.36, $126.54, $128.21, $113.64 and $104.23.

FINDINGS OF FACT

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 3114 Arrow Rock Dr, St. Charles, Missouri.  The property is identified by locator number 3-0037-4933-00-20.  The property consists of a .42 of an acre lot improved by a one-story split foyer single-family residence, constructed in 1970 containing 1,320 square feet of living area.

3.         There was no evidence of new construction and improvement from January 1, 2005, to January 1, 2006.

4.         Complainant’s evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Assessor and the Board and establish the true value in money as of January 1, 2005, to be $145,000.

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 .19 of a mile to less than 3 miles of the subject.  Each sale property sold at a time relevant (4/04 – 6/05) to the tax date of January 1, 2005.  The sale properties were similar to the subject in style, quality of construction, age, condition, room, bedroom and bathroom count, living area, location, site size and other amenities.  Exhibit 1.  The adjustments made by the appraiser to arrive at his conclusion of value were appropriate to bring the comparables in line with the subject for purposes of the appraisal problem.

6.         Respondent’s evidence met the standard of substantial and persuasive evidence to establish the value of the subject, as of January 1, 2005, to be $160,000 and thereby rebut the presumption of correct assessment by the Assessor and the Board.

CONCLUSIONS OF LAW

Jurisdiction

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.

Board of Equalization Presumption

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 is accepted as true only until and so long as there is no substantial evidence to the contrary. 


Presumption on Assessor’s Value

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).

Rebutting of Presumption of Correct Assessment

            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.

Standard for Valuation

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

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.

Opinion Testimony by Experts

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).

Complainant’s Burden of Proof

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, 2005.  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).

Owner’s Opinion of Value

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). 

Methods of Valuation

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).


DECISION

The owner’s opinion of fair market value may always be given in an appeal before the Commission.  However, such opinion of value without substantial and persuasive evidence to support that opinion possesses no probative weight or benefit on the issue of fair market value.  In the present case, Mr. Boeke’s opinion is based on a MCA.  This type of document has never been recognized by the Courts of this state, the Commission or the appraisal industry as an appropriate method for appraising real property for ad valorem tax purposes.  Accordingly, Mr. Boeke’s opinion of fair market value can be given no weight or value in the present case, as that opinion is not based upon proper elements or a proper foundation. 

The appraisal of Mr. Riney presented substantial and persuasive evidence of the fair market value of the subject property.  Accordingly, the presumption of correct assessment by the Board, as well as any presumption of correct assessment by the assessor, was rebutted.  The fair market value of the subject based upon the evidence in this record is to be set at $160,000.

ORDER

The assessed valuation for the subject property as determined by the Board of Equalization for St. Charles County for the subject tax day is SET ASIDE.

The assessed value for the subject property for tax years 2005 and 2006 is set at $30,400.

Complainant 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 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 March 10, 2006.

STATE TAX COMMISSION OF MISSOURI

 

 

_____________________________________

W. B. Tichenor, Senior Hearing Officer

 

Certificate of Service

 

I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 10th  day of  March, 2006, to:  Chester Boeke, 3114 Arrow Rock, St. Charles, MO 63303, Complainant; Charissa Mayes, Assistant County Counselor, 100 North Third Street, Room 216, St. Charles, MO 63301, Attorney for Respondent; Scott Shipman, Assessor, 201 North Second, Room 247, St. Charles, MO 63301-2870; Amy Gann, Registrar, 100 North Third Street, Suite 206, St. Charles, MO 63301; Barbara Walker, Collector, 201 North Second Street, Room 134, St. Charles, MO 63301.

 

 

___________________________

Barbara Heller

Legal Coordinator