State Tax Commission of Missouri

STEVEN AND SALLY ZIMMERLY, )

)

Complainants, )

)

v. ) Appeal Number 05-34011

)

RANDY HOLMAN, ASSESSOR, )

JEFFERSON COUNTY, MISSOURI, )

)

Respondent. )

ORDER

AFFIRMING HEARING OFFICER DECISION

UPON APPLICATION FOR REVIEW

On March 23, 2006, Chief Counsel R. Randall Turley, acting as Hearing Officer, entered his Decision and Order (Decision) affirming the assessment by the Jefferson County Board of Equalization.

Complainants timely filed a letter with photographs which the Commission will treat as an Application for Review of the Decision. Respondent filed on April 28, 2006, his Motion to Exclude Complainant’s letter of April 18 and the attached photographs.

CONCLUSIONS OF LAW

Standard Upon Review

The Hearing Officer 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 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).

DECISION

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 letter of April 18, 2006, addresses only the matter of what is shown by the photographs attached to the letter. These photographs were not offered into evidence at the trial of this case. Therefore, the Motion to Exclude is granted, as a party cannot offer exhibits into evidence after the close of the hearing. Furthermore, Complainant Steven Zimmerly testified as to his having deer on the subject property. (Tr. 7, Line 19 – Tr. 8 – Line 13). Complainants present no basis in their Application for Review upon which the Commission can find that the Hearing Officer erred in his decision. There is no allegation the Hearing Officer misapplied the law to the facts.

ORDER

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 May 16, 2006.

STATE TAX COMMISSION OF MISSOURI

Bruce E. Davis, Chairman

Jennifer Tidwell, Commissioner

Charles Nordwald, Commissioner

DECISION AND ORDER

HOLDING

Decision of the Jefferson County Board of Equalization sustaining the assessment made by the Assessor, AFFIRMED, Hearing Officer finds true value in money for the subject property for tax years 2005 and 2006 to be $58,000, assessed value of $7,000.

Complainant Steven Zimmerly appeared pro se.

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

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

ISSUE

The Commission takes this appeal to determine the correct valuation of the subject property as of January 1, 2005.

SUMMARY

Complainants appeal, on the ground of misgraded agricultural land, the decision of the Jefferson County Board of Equalization, which sustained the valuation of the subject property. The Assessor determined an appraised value of $58,000, assessed value of $7,000, as vacant and unused agricultural land. Complainant proposed the subject property be assessed at agricultural grade 7. A hearing was conducted on February 17, 2006, at the Jefferson County Courthouse, Hillsboro, 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 and offered his opinion that the property should be placed in the agricultural grade of 7 and valued accordingly.

Respondent’s Evidence

Respondent placed into evidence the testimony of Mr. Cary Dean Blum, Real Estate Supervisor for the Jefferson County Assessor. Respondent’s Classification Summary and Exhibits 1 through 9 were received into evidence.

FINDINGS OF FACT

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 2807 Marble Springs Road, Barnhart, Missouri. The property is identified by locator number 11-1.0-02.0-005. The property consists of 36.44 acres of wood land. There are no residential or agricultural structures on the property.

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 Board and establish that the property should be agricultural grade land as of January 1, 2005.

5. The subject property is not subject to any systematic plan for timber harvest or timber stand improvement. It does not have agricultural livestock running on it. No farm crops are being grown on it. The property is vacant and unused agricultural land and is to be assessed at 12% of its fair market value.

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).

In order to prevail, Complainants must present an opinion of agricultural grade for their property and substantial and persuasive evidence that the subject property qualifies for agricultural grading as of 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).

Assessment of Agricultural Land

Under Missouri law, if property is actively used for agricultural or horticultural purposes, it shall be valued based upon 12% of its productive value. Sections 137.016, 137.017, 137.021, 137.022, and 137.115, RSMo. Forested land may have an active agricultural use if it is subject to a systematic plan for timber harvest or timber stand improvement. King v. Raines, STC Appeal 95-73006, 2/13/96. Land that is vacant and unused, with no agricultural use, shall be assessed at 12% of its market value. Sections137.016.5 and 137.017.4, RSMo.

DECISION

Complainants failed to establish the subject property is being used for an agricultural purpose which would qualify it to be valued according to agricultural land grades. By law the Complainants’ property must be valued as vacant and unused agricultural land at its fair market value. Section 137.017.4, RSMo.

Respondent has assessed the subject land at 125 of its market value. Complainant argues that a former assessor indicated to him that timber land should be assessed at grade 7 agricultural. Under Missouri law, if property is actively used for agricultural or horticultural purposes, it may be valued based upon 12% of its productive value. If no active agricultural use can be shown, the property must be assessed at 12% of its market value. While the application of individual judgment by assessors in deciding whether an active agricultural use exists may vary slightly among counties, the facts in this case support Respondent’s assessment of the subject property as vacant and unused agricultural land assessed at 12% of its market value. The presumptions of correct assessment by the Assessor and the Board stand.

ORDER

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 AFFIRMED.

The assessed value for the subject property for tax years 2005 and 2006 is set at $7,000.

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 March 23, 2006.

STATE TAX COMMISSION OF MISSOURI

_____________________________________

R. Randall Turley, Chief Counsel

Certificate of Service

I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 23^rd day of March, 2006, to: Steven Zimmerly, 2807 Marble Springs Road, Barnhart, Mo 63012, Complainant; David Senkel, One Thurman Court, P.O. Box 800, Hillsboro, MO 63050, Attorney for Respondent; Randy Holman, Assessor; Janet McMillian, Clerk; Beth Mahn, Collector, Jefferson County Courthouse, Hillsboro, MO 63050.

____________________________

Barbara Heller, Legal Coordinator