J.H. Berra Const. Co., Inc. v. Holman

• Citation: 152 S.W.3d 281
• Decision Date: 11 January 2005
• Docket Number: No. SC 86046.,SC 86046.
• Parties: J.H. BERRA CONSTRUCTION CO., INC., Appellant, v. Randy HOLMAN, Assessor for Jefferson County, Missouri, Respondent.
• Court: United States State Supreme Court of Missouri

152 S.W.3d 281

J.H. BERRA CONSTRUCTION CO., INC., Appellant, v. Randy HOLMAN, Assessor for Jefferson County, Missouri, Respondent.

No. SC 86046.

Supreme Court of Missouri, En Banc.

January 11, 2005.

David L. Welsh, St. Louis, MO, for Appellant.

Robert Bilbrey, David P. Senkel, Hillsboro, MO, for Respondent.

PER CURIAM.¹

J.H. Berra Construction Co., Inc., uses heavy equipment in its construction projects. On January 1, 2001, some of its equipment was located in Jefferson County, Missouri. The Jefferson County assessor assessed personal property tax against the value of the equipment. Berra contests the assessment. The state tax commission agreed with the assessor that the equipment was subject to taxation in Jefferson County. On judicial review, the circuit court agreed with the commission. That judgment is affirmed.

On appeal, this Court reviews the commission's decision, rather than the trial court's judgment, to determine whether the agency action: (1) is in violation of constitutional provisions; (2) is in excess of the statutory authority or jurisdiction of the agency; (3) is unsupported by competent and substantial evidence upon the whole record; (4) is, for any other reason, unauthorized by law; (5) is made upon unlawful procedure or without a fair trial; (6) is arbitrary, capricious or unreasonable; or (7) involves an abuse of discretion. Section 536.140.2.² Questions of law are matters for the independent judgment of this Court. State Bd. of Registration for Healing Arts v. McDonagh, 123 S.W.3d 146, 152 (Mo. banc 2003).

Berra asserts that the commission erred in affirming the assessed valuation of its equipment in Jefferson County because the construction equipment at issue had only a temporary presence in Jefferson County; therefore, it was not "situated" there for personal property tax assessment purposes under section 137.095.1.³ Berra has the burden to show that the commission's decision that the equipment is situated in Jefferson County is unsupported by competent and substantial evidence upon the whole record.

In Buchanan County v. State Tax Commission, 407 S.W.2d 910, 913-14 (Mo.1966), this Court found that the word "situated" connotes a more or less permanent location or situs. "Situated" refers to the place where the personal property is regularly kept. The Court cited cases suggesting that "situated" implies some element of permanency and that it requires more than a mere temporary presence. "Situated" does not mean, however, that the property needed to be "physically present" in the taxing county on tax day.

When Buchanan was decided, section 137.095 did not distinguish taxation for motor vehicles from taxation of other personal property. Following Buchanan, however, the legislature enacted section 137.095.2 to reflect that motor vehicles should be taxed where they are "based" on tax day. This amendment sought to account for the mobility of vehicles used in commercial enterprises. Be-Mac Transp. Co., Inc. v. State Tax Comm'n of Mo., 725 S.W.2d 599, 601 (Mo. banc 1987). The commission correctly found that the amended version of section 137.095 clearly contemplates that there can be a difference between where a piece of property is "situated" and where a piece of property is based. In particular, unless the property is regulated pursuant to chapter 390, the correct analysis for tax purposes is to determine where the property is "situated," not where it is based. Because the equipment at issue in this case is not property regulated pursuant to chapter 390, the fact that it is based in St. Louis County, where Berra operates its corporate headquarters, does not preclude it from being "situated" in some other county for tax purposes.

The commission found that Berra's equipment was "situated" in Jefferson County for 2001 tax purposes. In making its decision, the commission considered both written and oral testimony of the parties and a variety of documents and records from both parties. The commission found that Berra failed to present substantial and persuasive evidence tending to show that Jefferson County's assessment was erroneous. The commission determined that Berra owned 48 pieces of equipment that were physically located in Jefferson County on January 1, 2001,⁴ but it found Berra's records were inadequate to identify the number of days each piece of equipment was physically located in the county. The commission acknowledged that the equipment would be returned to Berra's corporate headquarters in St. Louis County when not in use, but it found that Berra had a practice of parking unused equipment on job sites to reduce transportation costs. The commission also noted that Berra sometimes repaired equipment at its corporate facilities, but other times serviced the equipment on job sites. The commission further found that the assessor's employees had observed Berra's equipment in Jefferson County for a number of years, and it found that Berra maintained an office trailer at the job site.

There was competent and substantial evidence to show that the equipment was "situated" in Jefferson County under the standards set forth in Buchanan. There was substantial evidence that the equipment had some element of permanency in Jefferson County, that it had more than a mere temporary presence there, and that it was regularly kept there during 2001 while Berra completed several large-scale and long-term projects in that county.

Berra's assertion that the purpose of its property being located in Jefferson County should be considered, rather than the length of time it was...