State Tax Commission of Missouri

 

BGI LLC,                                                        )

)

Complainant,                )

)

v.                                                         )           Appeal No.      07-89563

)        

JAMES STRAHAN, ASSESSOR,                  )

TANEY COUNTY, MISSOURI,                    )

)

 Respondent.                )

 

ORDER NUNC PRO TUNC

CHANGING CAPTION OF DECISION AND ORDER

 

Decision and Order issued August 19, 2008 is corrected nunc pro tunc in the caption by striking the words: PHILIP MUEHLHEAUSLER, ASSESSOR, ST. LOUIS COUNTY, MISSOURI, and inserting in lieu thereof the words:  JAMES STRAHAN, ASSESSOR, TANEY COUNTY, MISSOURI.

In all other respects said Decision and Order is confirmed and ratified as written with the correction herein made.

SO ORDERED August 22, 2008.

STATE TAX COMMISSION OF MISSOURI

W. B. Tichenor

Senior Hearing Officer

 

 

 

 

 

 

 

DECISION AND ORDER

 

HOLDING

 

Valuation of the Assessor is SET ASIDE.  Hearing Officer finds Complainant presented Substantial and persuasive evidence to prove the true value in money of the subject property.

True value in money for the subject property for tax years 2007 and 2008 is at $1,500,000, commercial assessed value of $480,000.

Complainant appeared by Counsel Bruce McCurry, Chaney & McCurry, Springfield, Missouri.

Respondent appeared by Counsel, Robert R. Paulson, II, Forsyth, Missouri.

Case 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, 2007.

SUMMARY

Complainant appeals, on the ground of overvaluation, the assessment of the subject property by the Assessor.  The Assessor did not send out a change notice, so there was no appeal to the Board.  The Assessor determined an appraised value for the property of $2,619,500, assessed value of $838,240, as commercial property.  Complainant proposed a value of $2,330,000, assessed value of $745,600, in its Complaint for Review of Assessment and a value of $1,500,000, assessed value of $480,000 in its exhibits.   

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

Complainant’s Evidence

Complainant submitted the following exhibits which are received into evidence.  There were no objections to any of the exhibits. 

Exhibit

Description

A

Appraisal of Subject by Roberts & Associates

B

Assessment Information- 2935 W. 76 Blvd

C

Assessment Information – Subject Property

D

Written Direct Testimony of Joe R. Roberts

E

Written Direct Testimony of W. L. Gehrs, Jr.

 

Respondent’s Evidence

Respondent did not file any exhibits or written direct testimony.  When Respondent fails to offer evidence of value, he appears to consent to the value presented by Complainant’s prima facie case (qui tacet consentire videtur - a party who is silent appears to consent)

FINDINGS OF FACT

1.         Jurisdiction over this appeal is proper.  No Change Notice was sent by the Assessor.  Exhibit E, Q & A 7.  Complainant timely appealed to the State Tax Commission (12/3/07) upon receipt of the 2007 Tax Bill on the property under appeal.  Complaint for Review of Assessment/2007 Tax Bill.

2.         By Order dated July 17, 2008, Respondent was given until and including

August 5, 2008 to advise the Hearing Officer in writing if he desired to cross-examine Complainant’s witnesses.  Failure to respond to the Order was deemed as waiver of cross-examination and consent to having the case submitted and decided on Complainant’s exhibits.

3.         The subject property is located at 3005 W. Highway 76, Branson, Missouri.  The property is otherwise known as the Hall of Fame Motor Inn.  The property is identified by parcel number: 18-1.0-02-001-001-016.00.   The property consists of approximately 4.1 acres improved by a 143 unit motel, with supporting amenities.  A portion of the motel was constructed in 1984 and additions were made in 1993 and 1994.  Exhibit A.

4.         There was no evidence of new construction and improvement to the subject property from January 1, 2007, to January 1, 2008.

5.         Complainant’s evidence was substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2007, to be $1,500,000, as proposed, assessed value of $480,000.  Exhibits A, D & E.           

CONCLUSIONS OF LAW AND DECISION

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.

No Presumption Assessor’s Value Correct

            In appeals before the Commission, there is no presumption that the assessor’s valuation is correct.  Section 138.431.3 RSMo.

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 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 are 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 both 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.

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, 2007.  Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, at 897.  There is no presumption that the taxpayer’s opinion is correct. The taxpayer in a Commission appeal still bears the burden of proof.  The taxpayer is the moving party seeking affirmative relief.   Therefore, the Complainant bears the burden of proving the vital elements of the case, i.e., the assessment was “unlawful, unfair, improper, arbitrary or capricious.”  See, 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).  Industrial Development Authority of Kansas City v. State Tax Commission of Missouri, 804 S.W.2d 387, 392 (Mo. App. 1991).

 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).

The testimony of Complainant’s sole Member and Manager, State Certified Appraiser, Joe R. Roberts and exhibits, established a fair market value for the subject property of $1,500,000.   The value put forth on the Complaint form had been placed there by Complainant’s accountant as the value taken from the 2004 valuation of the property by the State Tax Commission Decision.  There was no evidence in the record to establish the value of $2,330,000 as the true value in money of the property as of January 1, 2007.

ORDER

The assessed valuation for the subject property as determined by the Assessor of Taney County for the subject tax day is SET ASIDE.

The assessed value for the subject property for tax years 2007 and 2008 is set at $480,000.

Respondent 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.  Said application must be in writing addressed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, MO 65102-0146, and a copy of said application must be sent to each person at the address listed below in the certificate of service. 

  Failure to state specific facts or law upon which the appeal is based will result in summary denial.  Section 138.432, RSMo 2000.

The Collector of Taney County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending a filing of an Application for Review, unless said taxes have been disbursed pursuant to a court order under the provisions of 139.031.8 RSMo.

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 August 19, 2008.

STATE TAX COMMISSION OF MISSOURI

W. B. Tichenor

Senior Hearing Officer