State Tax Commission of Missouri

ARNIE C. DIENOFF, )

)

Complainant, )

)

v. ) Appeal No. 07-12165

)

PHILIP MUEHLHEAUSLER, ASSESSOR, )

ST. LOUIS COUNTY, MISSOURI, )

)

Respondent. )

ORDER GRANTING MOTION FOR STAY

AND

DENYING MOTION TO SET ASIDE, MOTION FOR DISCOVERY AND MOTION FOR A HEARING BEFORE COMMISSION

Complainant filed with the Commission, by email attachments on December 5, 2008, the following Motions: (1) Motion to Set Aside Decision, Judgment, Order and to Reconsider The Facts and Just Circumstances; (2) Motion for Discovery; (3) Motion for a Full Hearing Before all of the Members of State Tax Commission; and (4) Motion for Stay Order on Appeal of Review of the Commission.

Motion for Stay Granted

Motion for Stay of Order Affirming Hearing Officer Decision Upon Application for Review is granted for the purpose of ruling on Complainant’s other Motions.

Other Motions Denied

Motion to Set Aside Decision, Judgment, Order and to Reconsider The Facts and Just Circumstances; Motion for Discovery; and Motion for a Full Hearing Before all of the Members of State Tax Commission are denied. The Commission fully addressed the points raised by Complainant’s Application for Review in its Order Affirming Hearing Officer Decision Upon Application for Review, issued November 5, 2008. Complainant provided no basis for the Commission to reopen the Application for Review.

Judicial review of this Order and Order Affirming Hearing Officer Decision Upon Application for Review issued November 5, 2008, 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 mailing set forth in the Certificate of Service for this Order.

If judicial review of this decision is made, any protested taxes presently in an escrow account in accordance with this appeal shall be held pending the final decision of the courts unless disbursed pursuant to Section 139.031.8, RSMo.

If no judicial review is made within thirty days of the date of the mailing set forth in the Certificate of Service, this decision and order is deemed final and the Collector of St. Louis 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.

SO ORDERED December 16, 2008.

STATE TAX COMMISSION OF MISSOURI

Bruce E. Davis, Chairman

Jennifer Tidwell, Commissioner

Charles Nordwald, Commissioner

ORDER

AFFIRMING HEARING OFFICER DECISION

UPON APPLICATION FOR REVIEW

On August 4, 2008, Senior Hearing Officer W. B. Tichenor entered his Decision and Order (Decision) affirming the assessment by the St. Louis County Board of Equalization of the property under appeal at $9,410, true value in money of $49,500.

Complainant timely filed his Application for Review of the Decision. Respondent time filed Response.

CONCLUSIONS OF LAW

Standard Upon Review

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.[1]

The Hearing Officer as the trier of fact may consider the testimony of an expert or a lay 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 or lay witnesses who testify on the issue of reasonable value, but may believe all or none of the testimony and accept it in part or reject it in part.[2]

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.[3]

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 his discretion as the trier of fact and concluder of law in this appeal.[4]

Complainant’s Points On Application for Review

Complainant sets forth four points in his application for review with regard to the Hearing Officer’s Decision. The claims in summary fashion are: (1) unfair treatment of Complainant, (2) Complainant’s opposition to tax measures, (3) unconstitutional and discriminatory, and (4) Decision flawed, erroneous, capricious and has unfair merit.

The Commission will address each claim separately.

Unfair Treatment

Complainant asserts:

“Complainant Dienoff is being treated unfairly and assessed differently than his neighbors as introduced into evidence by Complainant Dienoff and ignored by Senior Hearing officer Warren B. Tichenor resulting in Mr. Tichenor erroring (sic – erring) in his judgment in reversing the Decision of the St. Louis County Board of Equalization Members Mary Elizabeth Dorsey, Sally A. Diechmann, James M. Brasfield and that of the St. Louis County Appointed Appraiser Philip A. Muehlheausler and St. Louis County Director of Revenue Eugene K. Leung whom are Appointed by the County Executive Charles A. Dooley.

Complainant Dienoff if (sic – is) being assessed higher and not having close to any of the added amenities of his neighbors as introduced into evidence.”

The Commission notes at the outset Complainant failed to provide any specifics relating to this claim. The Commission further notes Complainant is in error that the Decision of the Hearing Officer reversed the Board of Equalization Decision. The Board Decision letter, dated August 9, 2007, filed with the Complaint for Review of Assessment in this appeal sets forth the appraised value of $49,500. This being the same value set by the Assessor. The Order of the Decision at page 17 affirms the assessed valuation determined by the Assessor and sustained by the Board of Equalization.

The Hearing Officer addressed at length the failure of Complainant to present evidence of the value of his property as of January 1, 2007, based on any recognized methodology for appraisal of real property. The Decision properly determined the Complainant failed to meet his burden of proof and present substantial and persuasive evidence to rebut the presumption of correct assessment by the Board and establish the true value in money of the property under appeal.[5] The Decision correctly applied the controlling case law with reference to a claim of

discriminatory or unfair assessment and concluded here again Complainant failed to meet the required evidentiary standard to support his claim.[6]

The evidence, as correctly concluded by the Hearing Officer, clearly and convincingly found that the Complainant’s property had a true value in money as of January 1, 2007 of $49,500. There is no statutory or case law basis upon which the Hearing Officer could have concluded that the Complainant’s property value should be lowered based upon claims that some other similar properties might be undervalued.

Complainant’s point is not well taken. The Hearing Officer did not err in finding the taxpayer had failed to meet his burden of proof both as to value and discrimination. The Hearing Officer did not err in affirming the value set by the Assessor and sustained by the Board.

Opposition to Tax Measures

Mr. Dienoff’s next point raised in his Application for Review was stated as follows:

“Complainant Dienoff has testified and strongly opposed tax measures, use of tax abatement and tax increment financing before the St. Louis County Council and that Respondent (sic – Complainant) Dienoff ran for the County Councilman of District Four (4) in the August 2008 Primary Election.”

The point presented is irrelevant to any alleged error on the part of the Hearing Officer in rendering his Decision. There is nothing in the Decision or the evidentiary record that addresses any matters concerning tax measures, abatements, increment financing or Complainant’s running for County Council. None of these items have any probative value on the issue of the true value in money of the subject property or any claim of discrimination. The Hearing Officer properly did not address any of these matters. He did not commit any error in his Decision with regard to them. Complainant’s point is not well taken.

Unconstitutional and Discriminatory

The third point presented by Mr. Dienoff is:

“Hearing Officer Tichenor’s Decision is unfair, bias (sic – biased), unconstitutional and discriminatory towards Complainant Dienoff. Mr. Tiechenor (sic – Tichenor) has violated once again Complainant Dienoff’s Article Ten of the Missouri State Constitution, the “Hancock Amendment” and the Missouri State Statutes concerning Taxation as astronomical and punishing Complainant Dienoff.”

As with the other two points presented, no specifics or details, in support of these general claims, are provided. However, the Hearing Officer specifically addressed Mr. Dienoff’s assertions related to violations of the Missouri Constitution and statutes.[7] Given that the taxpayer failed to provide any specific illustrations of how valuing the subject property at its true value in money, as required by law,[8] violates the constitution or statues, the Commission finds no need to restate the discussion provided in the Decision on this point.

Complainant’s point is not well taken. The Hearing Officer’s Decision was not unfair, biased, unconstitutional or discriminatory towards Complainant. The Hearing Officer did not violate any of Complainant’s rights under the constitution and applicable statutes. The Decision did not punish Complainant. The Decision properly set the true value in money for the property under appeal based upon the evidence and assessed the property at nineteen percent of that value as required by law.

Flawed Decision

The final argument made by Mr. Dienoff is that the Decision is flawed, erroneous, capricious, and has an unfair merit. Here again, Complainant makes his general assertion but fails to point to any specifics within the Decision where the Hearing Officer was in error or where a finding of fact is not supported by the evidence in the record. There is no detailing of how the Decision is alleged to be flawed. No explanation is provided as to what “unfair merit” is intended to convey with regard to this case.

As the Hearing Officer properly found and as the Commission affirms, Complainant failed to carry his burden of proof on his claims of overvaluation, discrimination and constitutional and statutory violations. The evidence in this record does not establish that valuing the subject property at $49,500 is unlawful, unfair, arbitrary or capricious. In point of fact, the only relevant evidence on the issue of the true value in money for the Complainant’s property shows that such a valuation is lawful and therefore it is fair. The Hearing Officer’s finding of fact on the issue of value was based on clear and convincing evidence, therefore, it cannot be found to be either arbitrary or capricious.

In like manner, with regard to claims of discrimination, and constitutional and statutory violations made at hearing, the Hearing Officer addressed each under the appropriate legal mandates. No error is found in the application of the controlling law to the facts in this record. Complainant’s point is not well taken. The Hearing Officer did not err as asserted by the taxpayer.

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.

If no judicial review is made within thirty (30) days, this decision and order is deemed final and the Collector of St. Louis 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.

SO ORDERED November 5, 2008.

STATE TAX COMMISSION OF MISSOURI

Bruce E. Davis, Chairman

Jennifer Tidwell, Commissioner

Charles Nordwald, Commissioner

DECISION AND ORDER

HOLDING

Decision of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED. Hearing Officer finds presumption of correct assessment not rebutted. True value in money for the subject property for tax years 2007 and 2008 is set at $49,500, residential assessed value of $9,410.

Complainant appeared pro se.

Respondent appeared by Counsel, Paula J. Lemerman, Associate County Counselor.

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

ISSUE

The Commission takes this appeal to determine (1) the true value in money for the subject property on January 1, 2007; (2) whether there was an intentional plan by the assessing officials to assess the property under appeal at a ratio greater than 19% of true value in money, or at a ratio greater than the average 2007 residential assessment ratio for St. Louis County; and (3) whether the assessment of the property constituted a violation of the State Constitution and statutes.

SUMMARY

Complainant appeals, on the ground of overvaluation, discrimination and violation of the State Constitution and statutes, the decision of the St. Louis County Board of Equalization, which sustained the valuation of the subject property. The Assessor determined an appraised value of $49,500, assessed value of $9,410, as residential property. Complainant proposed a value of $22,500, assessed value of $4,270. A hearing was conducted on July 9, 2008, at the St. Louis County Government Center, Clayton, 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 value for the property to be $22,500. This was based on sales dating back to 2001, the fact the house was in its original condition, with no renovation, the condition of the neighborhood and the failing school district. He also asserted that Article X of the Missouri Constitution limits increases in valuation to reasonable increases and that the percentage of increase in the value of his property of 24-26% was over burdensome and in violation of the Hancock amendment.

The following documents were offered into evidence:

Exhibit	Description
A	16 Photographs of the Subject
B	Property Record Cards on Subject and four neighboring properties
C	Listing of Schools and their Accreditation Status for 2008
D	Newspaper Articles

Exhibits A, B & C were received into evidence. Counsel for Respondent objected to Exhibit D on the grounds of hearsay and relevancy. Objection was sustained. Exhibit D is maintained in the case file, but is not a part of the evidentiary record in the appeal.

Respondent’s Evidence

Respondent placed into evidence the testimony of Mr. Eric Hubbard, Missouri State Licensed Residential Real Estate Appraiser for St. Louis County. The appraiser testified as to his appraisal of the subject property. The Appraisal Report (Exhibit 1) of Mr. Hubbard was received into evidence. Mr. Hubbard arrived at an opinion of value for the subject property of $52,000 based upon a sales comparison approach to value. In performing his sales comparison analysis, the appraiser relied upon the sales of four properties deemed comparable to the subject property.

Complainant objected to Exhibit 1 on the ground that Mr. Hubbard was a St. Louis County Employee. The objection was overruled. There is no statutory or case law basis for the exclusion of an appraisal report on the basis of the appraiser being an employee of the government entity valuing the property under appeal. There is no basis in the record from which one can conclude that Mr. Hubbard was in any way biased in the development of his opinion of fair market value for Mr. Dienoff’s property.

The appraiser’s certification (Exhibit 1) establishes that the appraiser has no present or prospective interest in the property being appraised and no personal interest with respect to the parties. He has no bias with respect to the property being valued or to the parties involved in the assignment. The appraiser’s engagement in the assignment was not contingent upon developing or reporting a predetermined value. Compensation to Mr. Hubbard is not contingent upon the development of a predetermined value. The appraisal was performed in conformity with the Uniform Standards of Professional Appraisal Practice. Mr. Hubbard is a merit employee with St. Louis County.

FINDINGS OF FACT

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

2. The subject property is located at 914 Amaral Circle, Bellefontaine Neighbors, Missouri. The property is identified by parcel number 11E511033. The property consists of an attached single-family one story brick and vinyl sided condominium with full unfinished basement, open front porch, patio and a paved parking area with two assigned spaces. The unit is of average quality construction, built in 1986, and in average physical condition. It is one of twenty-six units in the Pine Meadows Condominiums. The residence has 900 square feet of living area that includes five rooms, with two bedrooms and a full bath. Exhibit 1

3. There was no evidence of new construction and improvement from January 1, 2007, to January 1, 2008.

4. Complainant’s evidence was not 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 $22,500, as proposed.

5. The properties relied upon by Respondent’s appraiser were comparable to the subject property for the purpose of making a determination of value of the subject property. The four properties were located all located on the subject street and were part of the Pine Meadows Condominium development. Each sale property sold at a time relevant to the tax date of January 1, 2007. 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 of comparability. Exhibit 1

6. The appraiser made various adjustments to the comparable properties for differences existing between the subject and each comparable. All adjustments were appropriate to bring the comparables in line with the subject for purposes of the appraisal problem. The net adjustments ranged from 2.0% to -27.6% of the sale prices. The major adjustment was for the superior condition of three of the comparable. Comparable 4 required a significant adjustment to account for the larger living area and the existence of an additional bath and a half. Exhibit 1

7. The adjusted sales prices for the comparables calculated to $52,000, $53,550, $49,740 and $55,000, respectively. The appraiser concluded on a $52,000 value which calculated to a value per square foot of $57.78 compared with the sales prices per square foot of living area for the comparables of $70.56, $58.33, $64.69 and $54.29. Exhibit 1

8. Respondent’s evidence met the standard of substantial and persuasive to establish the value of the subject, as of January 1, 2007, to be $52,000. However, Respondent’s appraisal was accepted only to sustain the original assessment made by the Assessor and sustained by the Board of $49,500, and not for the purpose of raising the assessment above that value. Exhibit 1 met the standard of clear, convincing and cogent evidence, under the provisions of Section 137.115, RSMo, to sustain the original valuation presumed to have been made by a computer, computer-assisted method or a computer program.

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.

Presumption In Appeals

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 of correct assessment is rebutted when the taxpayer, or respondent when advocating a value different than that determined by the Board, presents substantial and persuasive evidence to establish that the Board’s valuation is erroneous and what the fair market value should have been placed on the property. Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959). Complainant’s evidence failed to meet the standard of substantial and persuasive. Therefore, the presumption of correct assessment was not rebutted by Complainant. Respondent’s evidence met the substantial and persuasive standard to rebut the presumption of correct valuation by the Board and establish fair market value at $52,000. However, in any case in St. Louis County where the assessor presents evidence which indicates a valuation higher than the value finally determined by the assessor or the value determined by the board of equalization, whichever is higher, for that assessment period, such evidence will only be received for the purpose of sustaining the assessor’s or board’s valuation, and not for increasing the valuation of the property under appeal. Section 138.060, RSMo; 12 CSR 30-3.075. Therefore, Exhibit 1 was received only for the purpose of sustaining the original assessment of $49,500, and not to increase the value to $52,000.

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.

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 owner of property is generally held competent to testify to its reasonable market value. Rigali v. Kensington Place Homeowners’ Ass’n, 103 S.W.3d 839, 846 (Mo. App. E.D. 2003); 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. Cohen v. Bushmeyer, 251 S.W.3d 345, (Mo.App. E.D., March 25, 2008); Carmel Energy, Inc. v. Fritter, 827 S.W.2d 780, 783 (Mo. App. W.D. 1992); State, ex rel. Missouri Hwy & Transp. Com’n v. Pracht, 801 S.W.2d 90, 94 (Mo. App. E.D. 1990); Shelby County R-4 School District v. Hermann, 392 S.W.2d 609, 613 (Sup. 1965). “Where the basis for a test as to the reliability of the testimony is not supported by a statement of facts on which it is based, or the basis of fact does not appear to be sufficient, the testimony should be rejected.” Carmel Energy at 783.

An owner’s opinion of value, unsupported by relevant market data to establish the market value of the property under appeal, can be given no probative weight. Such an unsupported opinion finds no basis in the proper elements of sound appraisal practice. It does not rest on an appropriate evidentiary foundation, since there is no evidence given to establish the value the owner proffers. In such instances, the owner’s opinion is nothing more than a number pulled out of thin air. No evidence can be found in either Mr. Dienoff’s testimony or his exhibits to establish that condo units like his were only selling at times relevant to January of 2007 for anything near $25.00 per square foot of living area ($22,500 ÷ 900 = $25.00). The market data clearly shows a per square foot price in excess of $60, unadjusted, was what the market had established.

The exhibits which the Complainant did provide are totally lacking to establish a value of $22,500. The photographs (Exhibit A) are helpful to understand the general condition of the subject condo. However, photographs in and of themselves do not establish fair market value. There is simply no way for any one to look at a series of photographs showing the condition of any home and arrive at an opinion of market value.

The property record cards (Exhibit B) are the basis for Mr. Dienoff’s claim of discrimination. They provide nothing which addresses the claim of a value of only $22,500 for the subject. There is no timely sales data on any of the four properties contained in Exhibit B. The documents are irrelevant to the issue of fair market value. As addressed below, they likewise have no relevance to support a claim of discrimination.

Exhibit C is also irrelevant to the issue of establishing true value in money. Mr. Dienoff testified concerning the accreditation status of the Riverview Gardens school district. Riverview Gardens is the school district in which the subject property is located. Exhibit C only established that for 2007 Riverview Gardens was unaccredited. This item would only be a factor if an appraiser was attempting to use comparable sale properties from another school district which was not accredited. However, in the case of Mr. Hubbard’s appraisal, all four of his comparable properties were located in Riverview Gardens district like Mr. Dienoff’s property. Therefore, the fact of an unaccredited school district proves nothing relative to the true value in money of the Dienoff condominium.

Finally, the tendered Exhibit D, excluded on the grounds of hearsay, lacks any relevancy for arriving at an indicated fair market value. Taxpayers have the perception that any newspaper or magazine articles that address a depressed housing market are in some form or fashion relevant to determining value for their property. Such is simply not the case. Whether the general residential real estate market nation wide, or even in the St. Louis metropolitan area is on the rise, going down, or has bottomed out doesn’t prove value. It only addresses market trends. It does not establish at on January 1, 2007, a buyer and seller would have agreed to a sale price for the subject property of $22,500. Articles on the housing market do not constitute a recognized method of valuing real estate in appeals before the Commission, therefore they do not constitute evidence of value.

Complainant Fails To Prove Discrimination

In order to obtain a reduction in assessed value based upon discrimination, the Complainant must show an intentional plan of discrimination by the assessing officials resulting in an assessment of the property under appeal at a greater percentage of value than other residential property, generally, within St. Louis County. Koplar v. State Tax Commission, 321 S.W.2d 686, 690 (Mo. 1959). Evidence of value and assessments of a few properties does not prove discrimination. Substantial evidence must show that all other property in the same class, generally, is actually undervalued. State ex rel. Plantz v. State Tax Commission, 384 S.W.2d 565, 568 (Mo. 1964). The difference in the assessment ratio of the subject property and the average assessment ratio in the subject county must be shown to be grossly excessive. Savage v. State Tax Commission of Missouri, 722 S.W.2d 72, 79 (Mo. banc 1986). No other methodology is sufficient to establish discrimination. Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696 (Mo. 1958).

Complainant must prove the average level of assessment for residential property in St. Louis County for 2007. This is done by (a) independently determining the market value of a representative sample of residential properties in St. Louis County; (b) determining the assessed value placed on the property by the assessor’s office for the relevant year; (c) dividing the assessed value by the market value to determine the level of assessment for each property in the sample; and (d) determining the mean and median of the results. The difference between the actual assessment level of the subject property and the average level of assessment for all residential property, taken from a sufficient representative sample in St. Louis County must demonstrate a disparity that is grossly excessive. Savage v. State Tax Commission of Missouri, 722 S.W.2d 72, 79 (Mo. banc 1986).

Complainant presented no evidence of a representative sample of residential properties in St. Louis County. He did not establish the true values in money for any such sample. Therefore, he could not and did not establish that the average residential assessment level for 2007 in St. Louis County was a factor other than 19%. The subject property was assessed at 19% (the statutory assessment level - §137.115.5(1) RSMo) of its appraised value. Complainant failed to establish that his property’s appraised or fair market value should only be $22,500. Therefore, it cannot be assessed at 19% of that value. The property must be assessed at 19% of the value set by the assessor, sustained by the Board and affirmed by this Decision.

Mr. Dienoff’s discrimination claim rests on his comparison of the value of his property to four other properties that are a part of the Pine Meadows Condominium Phase One Plat. Exhibit B. This is simply not a representative sample of residential properties in St. Louis County. Furthermore, Complainant failed to present any market data to establish that the true value in money for the four properties in Exhibit B was different than the appraised value set by the Assessor’s mass appraisal methodology. Minor variations in the amenities of the properties compared to the subject and the fact that all of the properties are appraised at $55.00 per square foot of living area like the subject does not establish discrimination. If anything, Exhibit B establishes a level of general uniformity in the mass appraisal of the condominium units.

Complainant failed to present the requisite evidence upon which the claim of discrimination could be sustained.

Complainant Fails To Prove Violation of Constitution and Statutes

Mr. Dienoff did not provide any specific citation for the constitutional and statutory provisions he claimed were violated by the assessment of his property. His general allegation was that Article X of the Constitution required a “reasonable increase” in valuation and that a 24 – 26% increase from 2005 was over burdensome and that the assessment violated the “Hancock” amendment. None of Complainant’s claims have merit.

There is no provision in Article X of the Missouri Constitution which mandates a “reasonable increase” in valuation from one assessment cycle to the next. Article X, Section 4(b) specifically requires that residential property “be assessed for tax purposes at its value or such percentage of value as may be fixed by law.” Likewise, there are no statutory provisions employing such a limitation relative to assessment. Section 137.115.1 mandates that property be assessed based on its “true value in money.” Nothing in this section of the law limits increases from one assessment cycle to the next to any set percentage or only reasonable increases.

Neither does the constitution or controlling statute require that valuation increases not be “over burdensome,” whatever that phrase might mean. Values must be set based on the fair market value as defined by case law and applicable appraisal standards, as hereinabove cited. The fact that a given property is increased in any given cycle by a percentage that is in excess of the average for the cycle, does not mean that the increase was either unreasonable or that the resulting value is burdensome. The goal which assessment seeks to achieve is to value all property at its market value, therefore, insuring equality and uniformity. Large percentage increases generally represent the fact that a given property was grossly undervalued in prior assessment cycles.

Finally, Complainant’s Hancock amendment argument provides no basis for the assessment to be set aside and a value of $22,500 be set for the property under appeal. The Hancock amendment does not address the assessment of real property, therefore, it can not have been violated by the valuing the Complainant’s property at what the market data clearly and convincingly establishes to be at least $49,500. Complainant did not elaborate on exactly how Sections 16 through 24 of Article X of the Missouri Constitution might have been breached by valuing the subject property as the Assessor did. While these provisions of the Constitution, generally known as the “Hancock Amendment,” do address property taxes, they do not address property assessment. Nothing in these provisions place any limit on valuing of real property for ad valorem tax purposes. There is no cap set on the percentage increase from one assessment cycle to the next. In short, any appeal to a setting of real estate values based on the Hancock provisions is of no merit and cannot avail to reduce the value on any property.

Summary and Conclusion

Complainant failed to present substantial and persuasive evidence to establish true value in money as proposed. He failed to meet the required standard for making a claim of discrimination in the assessment of his property. His assertions of constitutional and statutory violations have no basis in either fact or the law. Accordingly, he cannot prevail on any of the grounds put forth in his Complaint for Review of Assessment.

Respondent Proves Value

The Respondent has imposed upon him by the provisions of Section 137.115.1, RSMo, the burden of proof to present clear, convincing and cogent evidence to sustain a valuation on residential property which is made by a computer, computer-assisted method or a computer program. There is a presumption in this appeal that the original valuation, which was sustained by the Board of Equalization, was made by a computer, computer-assisted method or a computer program. There was no evidence to rebut the presumption, therefore, in order to sustain the valuation of the subject property at $49,500, appraised value, Respondent’s evidence must come within the guidelines established by the legislature and must clearly and convincingly persuade the Hearing Officer as to the value sought to be sustained.

The statutory guidelines for evidence to meet the standard of clear, convincing and cogent include the following:

(1) The findings of the assessor based on an appraisal of the property by generally accepted appraisal techniques; and

(2) The purchase prices from sales of at least three comparable properties and the address or location thereof. As used in this paragraph, the word comparable means that:

(a) Such sale was closed at a date relevant to the property valuation; and

(b) Such properties are not more than one mile from the site of the disputed property, except where no similar properties exist within one mile of the disputed property, the nearest comparable property shall be used. Such property shall be within five hundred square feet in size of the disputed property, and resemble the disputed property in age, floor plan, number of rooms, and other relevant characteristics.

Section 137.115.1(1) & (2).

Clear, cogent and convincing evidence is that evidence which clearly convinces the trier of fact of the affirmative proposition to be proved. It does not mean that there may not be contrary evidence. Grissum v. Reesman, 505 S.W.2d 81, 85, 86 (Mo. Div. 2, 1974). The quality of proof, to be clear and convincing must be more than a mere preponderance but does not require beyond a reasonable doubt. 30 AmJur2d. 345-346, Evidence section 1167. “For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder’s mind is left with an abiding conviction that the evidence is true.” Matter of O’Brien, 600 S.W.2d 695, 697 (Mo. App. 1980).

Respondent’s evidence clearly and convincingly established that the value of the subject property was at least $49,500 as originally determined by the Assessor and as sustained by the Board.

ORDER

The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization for St. Louis County for the subject tax day is AFFIRMED.

The assessed value for the subject property for tax years 2007 and 2008 is set at $9,410.

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. 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 St. Louis 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 4, 2008.

STATE TAX COMMISSION OF MISSOURI

W. B. Tichenor, Senior Hearing Officer