State Tax Commission of Missouri

 

CHARLES & SANDRA ZEHNDER,  )

)

Complainant,                )

)

v.                                                         )           Appeal Number 07-89505

)       

JAMES STRAHAN, ASSESSOR,                  )

TANEY COUNTY, MISSOURI,                    )

)

 Respondent.                )

 

 

DECISION AND ORDER

 

HOLDING

 

Decision of the Taney County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.  Hearing Officer finds presumptions of correct assessment not rebutted. True value in money for the subject property for tax years 2007 and 2008 is set at $196,315, residential assessed value of $37,300.

Complainant, Charles Zehnder, appeared pro se.

Respondent appeared by County Counselor, Robert Paulson.

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, 2007.

SUMMARY

Complainant appeals, on the ground of overvaluation, the decision of the Taney County Board of Equalization, which sustained the valuation of the subject property.  The Assessor determined an appraised value of $196,315, assessed value of $37,300, as residential property.  Complainant proposed a value of $185,530, assessed value of $35,250.  A hearing was conducted on February 20, 2008, at the Taney County Courthouse Annex, Forsyth, Missouri.

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

Complainant’s Evidence

Mr. Zehnder testified as to his opinion of value ($185,530) and the basis for it.  The basis for the Complainant’s opinion of value was his discussion with the Assessor and the past assessment of the property.  Mr. Zehnder also was of the opinion that property values in Taney County had not increased, but have decreased.

Exhibit A was received into evidence on behalf of Complainants.  Exhibit A consisted of the following documents: (1) Article from www.freep.com on U. S. housing sales – 6/26/07; (2) Undated article from RealEstateJOurnal.com on U. S. housing sales; (3) Article dated 4/12/07 from bransonmissouri.blogspot.com, discussing Branson tourism; (4) June 27, 2007 article from Branson Daily News reporting that the median price of a new home was down nine tenths of a percent from June 2006; (5) listing of construction costs for subject house in 2002 and purchase price of lot; (6) copy of homeowners’ insurance renewal certificate.

Respondent’s Evidence

Respondent placed into evidence the testimony of Mr. Kenny Davis, appraiser for Taney County.  The appraiser testified as to the assessor’s valuation of the subject property.  The property record card for the subject property was received into evidence as Exhibit 1.  The PRC valued the property under the mass appraisal cost approach.

FINDINGS OF FACT

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

2.         The subject property is located at 170 Country Village Dr., Branson, Missouri.  The property is identified by parcel number 08-8.0-33-001-001-004.00.  The subject lot was purchased in 1998 or 1999 for $18,000. The home was constructed in late 2002 at a cost of $142,060.92.  There was no evidence of new construction and improvement from January 1, 2007, to January 1, 2008.

3.         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 $185,530, as proposed.          

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.

Presumptions 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).  Notwithstanding the provision of Section 138.431.3, RSMo – “There shall be no presumption that the assessor’s valuation is correct,” – the Supreme Court of Missouri has held, “A tax assessor’s valuation is presumed correct.”  Snider v. Casino Aztar/Aztar Missouri Gaming Corp., 156 S.W.3d 341 (Mo. 2005).  Citing to Hermel, supra; and Cupples Hesse Corp. v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).  The presumption of correct assessment is rebutted when the taxpayer presents substantial and persuasive evidence to establish that the assessor’s/Board’s valuation is erroneous and what the fair market value should have been placed on the property.  Snider, Hermel & Cupples Hesse, supra.  Complainant’s evidence was not substantial and persuasive to rebut the presumptions of correct assessment.

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.

Complainants’ Burden of Proof

In order to prevail, Complainants 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.  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).

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).  The testimony and documents presented by Mr. Zehnder provide no rational basis upon which the Hearing Officer can conclude that the fair market value of the subject property as of January 1, 2007 was $185,530.  Past assessments of the property do not establish fair market value for the 2007-2008 assessment cycle.  Internet and newspapers articles from mid-2007 do not provide market data from Taney County, specifically Branson, as to sales prior to January 1, 2007.  Such opinion articles are hearsay and do not constitute substantial and persuasive evidence on the value of the subject.  Articles about national trends in real estate values do not translate into valuation of any given property.  At the best any conclusion of value based upon such documents is nothing more than speculation and conjecture as to the value of the property under appeal.

In short, the basis for Mr. Zehnder’s opinion of value is not a methodology recognized by either the courts or the Commission.  Missouri courts have approved the comparable sales or market approach, the cost approach 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).  Because the opinion of value offered by Complainant was not based upon proper elements or a proper foundation, it has no probative weight on the issue of fair market value.  Complainant failed to meet his burden of proof, the valuation as determined by the Assessor and sustained by the Board must be affirmed.

ORDER

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

The assessed value for the subject property for tax years 2007 and 2008 is set at $37,300.

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 and an order to the Collector to release and disburse the impounded taxes.  §139.031.3 RSMo.  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 Taney 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 February 26, 2008.

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 26th  day of February, 2008, to:  Charles Zehnder, 170 Country Village Drive, Branson, MO 65616, Complainant; Robert Paulson, County Counselor, P.O. Box 1086, Forsyth, MO 65653, Attorney for Respondent; James Strahan, Assessor, P.O. Box 612, Forsyth, MO 65653; Donna Neeley, Clerk, P.O. Box 156, Forsyth, MO 65653; Sheila Wyatt, Collector, P.O. Box 278, Forsyth, MO 65653.

 

 

___________________________

Barbara Heller

Legal Coordinator