MISSOURI #15 RURAL CELLULAR, ) MISSOURI #5 RURAL CELLULAR, ) UNITED STATES CELLULAR, ) Complainant, ) ) v. ) Appeals Number 98-89508 ) through 98-89515 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, SET ASIDE, Hearing Officer finds true value in money for the subject properties, combined, of $817,135, assessed value, combined, $267,730.
Complainant, represented by Counsel, P. John Brady, Kansas City, Missouri.
Respondent, represented by Special County Counselor, William McCullah, Forsyth, Missouri.
Case submitted on exhibits and decided by Chief Hearing Officer, W. B. Tichenor.
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ISSUES
The Commission takes this appeal to determine the true value in money for the subject properties on January 1, 1998.
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SUMMARY
Complainant appeals the decisions of the Taney County Board of Equalization which sustained the valuation of the subject property. Parties waived evidentiary hearing. Cases were submitted on exhibits and written direct testimony filed.
The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.
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FACTS
The subject property consists of real and personal property as set forth in Specific Findings of Facts, infra.
Complainant's Evidence
Complainant filed with the Commission, pursuant to Commission Scheduling Order, the following exhibits:
Exhibit A - Appraisal Report on subject properties, prepared by C. James Harden, ASA.
Exhibit B - Written direct testimony of C. James Harden.
No objections were filed to these exhibits. Exhibits A and B are received into evidence.
Respondent's Evidence
Respondent filed no exhibits or written direct testimony.
Specific Findings of Facts
1. The property in these appeals is identified as follows:
A. Appeal 98-89508, Parcel No. 03-6.0-14-000-000-015.001L, consisting of land, improvements, buildings and tower. This parcel is identified as Rueter, site. The Assessor placed a true value in money on the property of $114,594, which was sustained by the Board of Equalization. Complainant proposed a value of $76,370 for land, improvements, buildings and tower, with the tower being assessed as personal property. Complaint for Review of Assessment; Exhibit A, p. 43; Exhibit B, Q & A 29.
B. Appeal 98-89509, Parcel No. 14-2.0-03-000-000-003.001, consisting of land, improvements, buildings and tower. This parcel is identified as Taneyville, site. The Assessor placed a true value in money on the property of $96,156, which was sustained by the Board of Equalization. Complainant proposed a value of $85,175 for land, improvements, buildings and tower, with the tower being assessed as personal property. Complaint for Review of Assessment; Exhibit A, p. 44; Exhibit B, Q & A 29.
C. Appeal 98-89510, Parcel No. 07-1.0-12-000-000-019.001, consisting of land, improvements, buildings and tower. This parcel is identified as Branson II, site. The Assessor placed a true value in money on the property of $173,094, which was sustained by the Board of Equalization. Complainant proposed a value of $134,381 for land, improvements, buildings and tower, with the tower being assessed as personal property. Complaint for Review of Assessment; Exhibit A, p. 42; Exhibit B, Q & A 29.
D. Appeal 98-89511, Parcel No. 18-6.0-24-002-004-011.001, consisting of land, improvements, buildings and tower. This parcel is identified as Downtown Branson, site. The Assessor placed a true value in money on the property of $119,031, which was sustained by the Board of Equalization. Complainant proposed a value of $71,944 for land, improvements, building and tower, with the tower being assessed as personal property. Complaint for Review of Assessment; Exhibit A, p. 41; Exhibit B, Q & A 29.
E. Appeal 98-89512, Account No. 40 0001860, consisting of Antenna, Power, Radio and Transmission equipment and base site controller. The Assessor placed a true value in money on the property of $1,020,420, which was sustained by the Board of Equalization. Complainant proposed a value of $142,675. This personal property is located on the real property in Appeal 98-89511. Complaint for Review of Assessment; Exhibit A, p. 41; Exhibit B, Q & A 29.
F. Appeal 98-89513, Account No. 40 0025097, consisting of Retail Office Equipment and Furniture, Antenna, Power, Radio and Transmission Equipment. The Assessor placed a true value in money on the property of $366,852, which was sustained by the Board of Equalization. Complainant proposed a value of $118,443. This personal property is located on the real property in Appeal 98-89510. Complaint for Review of Assessment; Exhibit A, p. 42; Exhibit B, Q & A 29.
G. Appeal 98-89514, Account No. 40 0026333, consisting of Test and Work, Antenna, Power, Radio and Transmission equipment. The Assessor placed a true value in money on the property of $666,450, which was sustained by the Board of Equalization. Complainant proposed a value of $116,661. This personal property is located on the real property in Appeal 98-89508. Complaint for Review of Assessment; Exhibit A, p. 43; Exhibit B, Q & A 29.
H. Appeal 98-89515, Account No. 40 0025098, consisting of Test and Work, Antenna, Power, Radio and Transmission equipment. The Assessor placed a true value in money on the property of $1,212,750, which was sustained by the Board of Equalization. Complainant proposed a value of $71,476. This personal property is located on the real property in Appeal 98-89509. Complaint for Review of Assessment; Exhibit A, p. 44; Exhibit B, Q & A 29.
2. The only evidence of true value in money for the subject properties in this record consists of the appraisal report and written direct testimony of Complainants' appraiser, C. James Harden.
3. Complainant's evidence was substantial and persuasive to rebut the presumption of correct assessment by the Board of Equalization and establish the true value in money as of January 1, 1998, to be as proposed for each of the items of property.
4. The towers in each appeal are personal property and are to be assessed accordingly. Their value has been added to the personal property appeal which corresponds to the real property appeal in each instance.
5. The true value in money and assessed value for the subject properties is as follows, amounts rounded:
Appeal 98-89508 - $50,980, true value in money; $16,310, assessed value, real property Exhibit A, p. 43.
Appeal 98-89509 - $22,735, true value in money; $7,275, assessed value, real property. Exhibit A, p. 44.
Appeal 98-89510 - $81,140, true value in money; $25,965, assessed value, real property. Exhibit A, p. 42.
Appeal 98-89511 - $37,690, true value in money; $12,060, assessed value, real property. Exhibit A, p. 41.
Appeal 98-89512 - $176,930, true value in money; $58,390, assessed value, personal property. Exhibit A. P. 41.
Appeal 98-89513 - $171,690, true value in money; $56,660, assessed value, personal property. Exhibit A, p. 42.
Appeal 98-89514 - $142,055, true value in money; $46,880, assessed value, personal property. Exhibit A, p. 43.
Appeal 98-89515 - $133,915, true value in money; $44,190, assessed value, personal property. Exhibit A, p. 44.
6. Total real property value - $192,545, assessed value of $61,610.
7. Total personal property value - $624,590, assessed value of $206,120.
9. Total true value in money of real and personal property - $817,135, assessed value $267,730.
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, 138.460(2). Section 137.115, RSMo 1994, 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, Inc. v. State Tax Commission, 564 S.W.2d 888, 897 (Mo. banc 1978).
Complainants' Burden of Proof
In order to prevail, Complainants must present an opinion of market value and substantial and persuasive evidence the proposed value is indicative of the market value of the subject property on January 1, 1998, in order to have that value accepted. 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).
The burden to establish the values proposed has been met by Complainants. Complainants' appraisal report is sufficient to establish the values set forth therein for both the real and personal property.
ORDER
The assessed valuations for the subject properties as determined by the Assessor and sustained by the Board of Equalization for Taney County for the subject tax day are SET ASIDE.
The assessed value for the subject property in appeal 98-89508 for tax year 1998 is set at $16,310.
The assessed value for the subject property in appeal 98-89509 for tax year 1998 is set at $7,275.
The assessed value for the subject property in appeal 98-89510 for tax year 1998 is set at $25,965.
The assessed value for the subject property in appeal 98-89511 for tax year 1998 is set at $12,060.
The assessed value for the subject property in appeal 98-89512 for tax year 1998 is set at $58,390.
The assessed value for the subject property in appeal 98-89513 for tax year 1998 is set at $56,660.
The assessed value for the subject property in appeal 98-89514 for tax year 1998 is set at $46,880.
The assessed value for the subject property in appeal 98-89515 for tax year 1998 is set at $44,190.
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 1994.
If an application for review of this decision is made to the Commission, any protested taxes presently in an escrow account in accordance with these appeals 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 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 these appeals. 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 April 27, 1999.
STATE TAX COMMISSION OF MISSOURI
W. B. Tichenor
Chief Hearing Officer
ORDER
GRANTING RESPONDENT'S APPLICATION FOR REVIEW
AND MODIFYING HEARING OFFICER DECISION
On April 27, 1999, Chief Hearing Officer, W. B. Tichenor, entered his Decision and Order (Decision) setting aside the assessments issued by the Taney County Assessor, and upheld by the Taney County Board of Equalization and finding value for the subject properties. Respondent timely filed his Application for Review of the Decision. Complainants timely filed their Response to Application for Review.
Respondent asserts in his Application for Review that: The Hearing Officer erred in classifying certain property as personal property instead of real property.
After a review of all the evidence on the record, the Commission's past decisions, and applicable Missouri law, we find that the Hearing Officer's classification of cellular transmission towers as "personal property" is improper, and that said items should be classified as "real property" pursuant to Section 137.010, RSMo.
CONCLUSIONS OF LAW
If an application for review of a Hearing Officer decision is allowed, the Commission will review the Decision to determine whether facts found by the Hearing Officer are supported by substantial evidence upon the whole record and whether a reasonable mind could have conscientiously reached the same result based on a review of the entire record. Phelps v. Metropolitan St. Louis Sewer Dist., 598 S.W.2d 163 (Mo. App. E.D. 1980). The Commission may affirm, modify, reverse, or set aside the decision and order of the Hearing Officer on the basis of the evidence previously submitted in such case, may take additional evidence, or may remand the matter to the hearing officer with directions. Section 138.432, RSMo.
The Commission's review of the Decision is upon the record and will ordinarily be limited to whether the findings, conclusions and decision of the Hearing Officer are supported by substantial and persuasive evidence and is not arbitrary, capricious or contrary to law. 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).
Issues
Respondent challenges the classification of certain properties which consist of numerous cellular towers which the Hearing Officer has deemed to be personal property, and not real property. In support of his position, Respondent relies on two letters, one from Rebecca Hancock to the Taney County Assessor dated August 29, 1997, and a Letter from Marilyn Baumhoer to Rebecca Hancock dated April 4, 1997. However, a review of the record shows that
neither of these letters was offered into evidence on behalf of Respondent. In other words, neither of the letters was part of the record for the Hearing Officer to consider.
The Commission rule on this matter is very clear. Any exhibit or written direct testimony which has not previously been exchanged in accordance with a Commission Order will be excluded from admission into evidence at the evidentiary hearing. 12 CSR 30-3.060. Respondent was given full opportunity to present an appraisal and testimony in this appeal. He elected not to do so. Opportunity for an evidentiary hearing on this matter was waived by both parties. While authority is found in Section 138.432, RSMo, for the Commission to take additional evidence, that taking of evidence must be in the context of an additional hearing, or reopening of the case, so that the opposing party would be permitted the opportunity for cross-examination, and to present further evidence themselves. Section 138.432, RSMo, does not permit the unilateral filing of supplemental evidence.
However, despite Respondent"s failure to produce evidence on the record so as to rebut Complainant"s assertion that cellular towers are personal property, the fundamental rules of evidence will apply at hearings before the Commission. 12 CSR 30-3.010(5). (See, Missouri Church of Scientology v. State Tax Commission, 560 S.W.2d 837, 839 (Mo. banc 1977). Although technical rules of evidence are not controlling in hearings before the Commission, fundamental rules of evidence are applicable.) Section 490.080, RSMo, provides that "Every court of this state shall take judicial notice of the common law and statutes of every state, territory and other jurisdiction of the United States." Section 490.080, RSMo. State agencies shall take official notice of all matters of which the courts take judicial notice. Section 536.070, RSMo.
The statute which must be evaluated in the determination of cellular towers as real or personal property is Section 137.010(3), RSMo, which provides as follows:
"Real property includes land itself, whether laid out in town lost or otherwise, and . . . the installed poles used in the transmission or reception of electrical energy, audio signals, video signals or similar purposes, provided the owner of such installed poles is also an owner of a fee simple interest, possessor of an easement, holder of a license or franchise, or is the beneficiary of a right-of-way dedicated for public utility purposes for the underlying land; attached wires, transformers, amplifiers, substations, and other such devices and appurtenances used in the transmission of reception of electrical energy, audio signals, video signals or similar purposes when owned by the owner of the installed poles, otherwise such items are considered personal property."
Respondent is not required to bring an existing statute to the [Commission's] attention as Missouri courts are under a duty to take judicial notice of state statutes, even if no specific request is made and no specific proof on the subject is presented at trial. State v. Dollens, 878 S.W.2d 875, 878 (Mo. App. E.D. 1994.) Because we find no substantial or persuasive evidence in Complainant's submitted record to conclude otherwise, it is our conclusion that a fair and valid reading of Section 137.010, which classifies "the installed poles used in the transmission or reception of . . .audio signals, video signals or similar purposes" as real property, logically extends to also include Complainant's cellular towers in dispute here.
II. Valuation
Irrespective of the classification of the property as personal or real, the only evidence of value is that submitted by Complainants. Respondent presented nothing to contest Complainant's valuation of their property. The Hearing Officer did not err in setting aside the valuation of the Board of Equalization and valuing the towers in accordance with Complainant's testimony. However, because the assessed valuations set forth in the April 27, 1999, Decision were calculated using the personal property assessment ratio of 33 1/3%, we must further modify the Decision so that the towers are valued to reflect the 32% ratio imposed on real property.
Commission Order
The Commission upon review of the record and Decision in this appeal, finds that reasonable minds could have conscientiously reached a different result based on a review of the record and upon the interpretation of Section 137.010, RSMo. That part of the Decision of the Hearing Officer which interprets Section 137.010, RSMo, to classify cellular towers as personal property should be reversed. Accordingly, it is the opinion of this Commission that Respondent's cellular towers clearly fall within the definition of real property.
Because Respondent provided no evidence to rebut Complainant's appraisal report and expert testimony, nor did he provide any evidence in support of his original evidence, we affirm the Hearing Officer's finding that the valuations for the subject properties as determined by the Assessor and sustained by the Board of Equalization for Taney County should be set aside.
The assessed value for the subject property in appeal 98-89508 is set at $25,400 as real property ($76,371 x .32% = $25,398, rounded to $25,400).
The assessed value for the subject property in appeal 98-89509 is set at $17,790 as real property ($55,593 x .32% = $17,789, rounded to $17,790).
The assessed value for the subject property in appeal 98-89510 is set at $43,000 as real property ($134,383 x .32% = $43,002, rounded to $43,000).
The assessed value for the subject property in appeal 98-89511 is set at $23,020 as real property ($71,946 x .32% = $23,022, rounded to $23,020).
The assessed value for the subject property in appeal 98-89512 is set at $47,560 as personal property ($142,674 /3 = $47,558, rounded to $47,560).
The assessed value for the subject property in appeal 98-89513 is set at $39,480 as personal property ($118,442/3 = $39,480).
The assessed value for the subject property in appeal 98-89514 is set at $38,890 as personal property ($116,660/3 = $38,886, rounded to $38,890).
The assessed value for the subject property in appeal 98-89515 is set at $33,690 as personal property ($101,058/3 = $33,686, rounded to $33,690).
Judicial review of this Order may be had in the manner provided in Sections 138.470 and 536.100 to 536.140, RSMo within thirty days of the date of the mailing of this Order.
SO ORDERED August 16, 1999.
STATE TAX COMMISSION OF MISSOURI
Van E. Donley, Chairman
Bruce E. Davis, Commissioner
Douglas W. Burnett, Commissioner