                 SUPREME COURT OF MISSOURI
                                         en banc
AIRPORT TECH PARTNERS, LLP,                       )
and STENTOR COMPANY, LLP,                         )
                                                  )
         Appellants,                              )
                                                  )
v.                                                )      No. SC94269
                                                  )
STATE OF MISSOURI                                 )
and CITY OF KANSAS CITY,                          )
MISSOURI,                                         )
                                                  )
         Respondents.                             )

             APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY
                       The Honorable Jon Beetem, Judge

                                Opinion issued June 16, 2015

         Airport Tech Partners, LLP, and Stentor Company, LLP, (hereinafter jointly

referred to as “Airport Tech”) brought a declaratory judgment action against the State of

Missouri, arguing that section 137.115.1 1 violates the uniformity clause set out in article

X, section 3 of the Missouri Constitution because it permits the deduction of construction

costs on airport property before assessing that property’s true value in money but does

not permit the deduction of construction costs before determining the true value in money

of other commercial property. Airport Tech alleges that it has taxpayer standing to raise

this issue because the application of section 137.115.1 to certain Platte County airport



1
    All statutory citations are to RSMo Supp. 2011 unless otherwise indicated.
property leased by Kansas City to TCC KCI Logistics I, LLC, (“TCC”) resulted in the

true value of that airport property being assessed at $0. Airport Tech alleges that this in

turn must have resulted in an increase in taxes on other county property so the county

could meet its budget needs. Therefore, Airport Tech claims, it has taxpayer standing to

challenge the statute because a lower assessment of the airport property likely will result

in a higher tax burden for Airport Tech than it otherwise would have paid were the statute

not in effect. The City of Kansas City intervened as a defendant.

       This Court affirms the trial court’s judgment that Airport Tech lacked standing to

seek a declaratory judgment. Airport Tech relies on the second of the three recognized

bases for taxpayer standing: “(1) a direct expenditure of funds generated through

taxation; (2) an increased levy in taxes; or (3) a pecuniary loss attributable to the

challenged transaction of a municipality.” Manzara v. State, 343 S.W.3d 656, 659 (Mo

banc 2011). But Airport Tech presented only speculation that the statute relied on

affected the level of the airport property’s assessment, much less that the general tax levy

would increase due to the level of that assessment. The trial court correctly held that,

stripped down to the basics, Airport Tech simply seeks to attack the assessment of

another’s property as a way to lower its own taxes. Missouri law is well-settled that a

taxpayer does not have standing to challenge another’s assessment.

I.     FACTUAL AND PROCEDURAL HISTORY

       The material facts of this case are largely undisputed. On June 15, 2011, Kansas

City leased to TCC a parcel of land that adjoined the Kansas City International Airport

(KCI). That property was located within the “ultimate airport boundary” designated by
KCI’s federal airport layout plan. TCC improved the land with a large warehouse and

driveways. It conveyed those improvements to Kansas City pursuant to the lease terms,

and Kansas City then leased the premises back to TCC for a 60-year term.

       The airport and the improved property owned by Kansas City and leased to TCC

are in Platte County. Airport Tech also owns commercial properties in Platte County.

Section 137.115.1 requires county assessors, including the Platte County assessor, to:

       annually assess all real property, including any new construction and
       improvements to real property, and possessory interests in real property [in
       the county] at the percent of its true value in money set in subsection 5 of
       this section.

Section 137.115.5 sets the percent of the true value of money of the real property at issue

at 32 percent. Airport Tech does not quarrel with subsection 137.115.5.

       But Airport Tech does object to a lengthy sentence the legislature added to section

137.115.1 in 2008. It believes that this sentence makes an unreasonable distinction

between the method of assessing property within an airport boundary as compared with

the method of assessing other commercial property. The sentence reads:

      The true value in money of any possessory interest in real property in
      subclass (3), where such real property is on or lies within the ultimate
      airport boundary as shown by a federal airport layout plan, as defined by 14
      CFR 151.5, of a commercial airport having a FAR Part 139 certification
      and owned by a political subdivision, shall be the otherwise applicable true
      value in money of any such possessory interest in real property, less the
      total dollar amount of costs paid by a party, other than the political
      subdivision, towards any new construction or improvements on such real
      property completed after January 1, 2008, and which are included in the
      above-mentioned possessory interest, regardless of the year in which such
      costs were incurred or whether such costs were considered in any prior
      year.

(Emphasis added). In this provision, then, the legislature provides that, in return for


                                            3
improvements being made on airport property by a private party, the cost of those

improvements will be deducted from the value of the property before it is assessed for tax

purposes. For ease of understanding, the language added to the statute will be referred to

as the “airport property provision.”

       In 2012, Airport Tech filed a petition for declaratory judgment alleging that the

airport property provision violates the “uniformity requirement” set out in article X,

section 3 of the Missouri Constitution by unreasonably treating airport property

differently than other property in its same class. The uniformity requirement states in

relevant part:

       Taxes … shall be uniform upon the same class or subclass of subjects
       within the territorial limits of the authority levying the tax. … Except as
       otherwise provided in this constitution, the methods of determining the
       value of property for taxation shall be fixed by law.

Mo. Const. art. X, § 3.

       This Court recently explained, in Michael Jaudes Fitness Edge, Inc. v. Director of

Revenue, that the uniformity requirement does not mandate that all commercial property

be taxed exactly the same. Rather, taxation may vary if there is a reasonable basis for

differentiation:

       The uniformity provision does not prohibit all distinctions among
       taxpayers; it prohibits only distinctions between those in the same class or
       subclass. See McKinley Iron, Inc. v. Director of Revenue, 888 S.W.2d 705,
       708 (Mo. banc 1994) (“The state … is not prohibited from treating one
       class of taxpayer differently from others”). In order to comply with this
       provision, “[i]t is only necessary that there be a reasonable basis for the …
       differentiation and that all persons similarly situated … be treated alike.”
       Bopp v. Spainhower, 519 S.W.2d 281, 289 (Mo. banc 1975).




                                            4
248 S.W.3d 606, 610-11 (Mo. banc 2008). 2

       The trial court did not reach the substantive issue whether to declare that the

airport property provision in section 137.115.1 made a reasonable distinction between the

valuation of airport property versus other commercial property. Instead, it held that

Airport Tech did not have standing to seek a declaratory judgment as to the constitutional

validity of the airport property provision in the first instance. In so holding, the trial court

said that Airport Tech’s claim that the assessment of the airport property was inadequate

was, at its core, simply an argument that “[i]f someone’s taxes go down, mine will go

up.” Such an argument is barred by the settled rule that one property owner has no

standing to attack another’s assessment. See, e.g., State ex rel. Kansas City Power &

Light Co. v. McBeth, 322 S.W.3d 525, 529-30 (Mo. banc 2010).

       Airport Tech appeals this ruling. 3            Because Airport Tech alleges the


2
  Michael Jaudes held that the legislature reasonably distinguished for tax purposes
between personal training services provided in a place of recreation and personal training
services provided outside places of recreation. See also Gammaitoni v. Dir. of Revenue,
786 S.W.2d 126, 130-31 (Mo. banc 1990) (holding, in part, that the legislature made a
reasonable distinction for purposes of taxation between advertising sales by the taxpayer
as compared with advertising sales by advertising agencies and broadcasting stations).
3
   The remainder of this opinion addresses whether section 137.115.1 violates the
uniformity provision set out in article X, section 3. At one point in its brief, Airport Tech
also states that it believes that the airport property provision violates article X, section 6.1
by creating an exemption from property taxes for airport property that has been
improved. Article X, section 6.1 of the Missouri Constitution states: “All laws exempting
from taxation property other than the property enumerated in this article [article X], shall
be void.” Airport Tech does not provide any arguments or citations in support of this
second claim of unconstitutionality or include this issue in its points relied on, however.
The Court, therefore, will not address it further other than to note that section 137.115.1
does not create any sort of exemption but, rather, affects how true value in money is
determined for the purpose of property tax assessment. By contrast, an “exemption”
from taxation is “[f]reedom from a duty, liability, or other requirement; an exception” or

                                               5
unconstitutionality of a portion of a state statute that directs how assessors shall assess the

subclasses of real and personal property, the appeal lies in this Court pursuant to article

V, section 3 of the Missouri Constitution. 4

II.    STANDARD OF REVIEW

       An appeal from summary judgment presents a legal issue that this Court reviews

de novo. See ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854

S.W.2d 371, 376 (Mo. banc 1993). The Court reviews the record and accords the benefit

of all reasonable inferences therefrom in the light most favorable to the party against

whom judgment was entered. Id.

       The trial court found that the property owners lack taxpayer standing. Standing is

a question of law that this Court reviews de novo. Schweich v. Nixon, 408 S.W.3d 769,

773 (Mo. banc 2013). Appellate courts “consider the petition along with any other non-

contested facts to determine whether the petition should be dismissed due to … lack of

standing.” Borges v. Missouri Pub. Entity Risk Mgmt. Fund, 358 S.W.3d 177, 180 (Mo.

App. 2012).

III.   AIRPORT TECH HAS NO STANDING TO SEEK A DECLARATORY
       JUDGMENT AS TO THE AIRPORT PROPERTY’S ASSESSMENT

       When a question of standing exists, this Court has a duty to resolve that question


“[a]n amount allowed as a deduction from adjusted gross income, used to determine
taxable income.” BLACK’S LAW DICTIONARY 692 (10th ed. 2014); see also WEBSTER’S
THIRD NEW INT’L DICTIONARY 795 (1993) (“1: the act of exempting or state of being
exempt: freedom from any charge or obligation to which others are subject … 2: a cause
for exempting (as a portion of taxable income)”).
4
  “The supreme court shall have exclusive appellate jurisdiction in all cases involving the
validity of … a statute or provision of the constitution of this state ….” Mo. Const. art.
V, § 3.

                                               6
before reaching substantive issues. Farmer v. Kinder, 89 S.W.3d 447, 451 (Mo. banc

2002).

         To grant a declaratory judgment, the court must be presented with:

         (1) a justiciable controversy that presents a real, substantial, presently-
         existing controversy admitting of specific relief, as distinguished from an
         advisory decree upon a purely hypothetical situation; (2) a plaintiff with a
         legally protectable interest at stake, consisting of a pecuniary or personal
         interest directly at issue and subject to immediate or prospective
         consequential relief; (3) a controversy ripe for judicial determination; and
         (4) an inadequate remedy at law.

Missouri Soybean Ass’n v. Missouri Clean Water Comm’n, 102 S.W.3d 10, 25 (Mo. banc

2003) (internal citations and quotation marks omitted). If a party is unable to meet

requirement (2) by showing a legally protectable interest in the outcome of the litigation,

then the party has no standing. LeBeau v. Comm’rs of Franklin Cnty., 422 S.W.3d 284,

288 (Mo. banc 2014). “Regardless of an action’s merits, unless the parties to the action

have proper standing, a court may not entertain the action.” Eastern Mo. Laborers Dist.

Council v. St. Louis Cnty., 781 S.W.2d 43, 45-46 (Mo. banc 1989).

         Airport Tech alleges that its status as a Platte County taxpayer gives it a legally

protected interest and confers standing. As this Court noted in Ste. Genevieve School

District R-II v. Board of Aldermen of the City of Ste. Genevieve, taxpayer standing is

recognized so that ordinary citizens can compel their government officials to conform to

the dictates of the law “when spending public money.” 66 S.W.3d 6, 11 (Mo. banc 2002).

“‘[I]t is the public interests which are involved in preventing the unlawful expenditure of

money raised [or to be raised] by taxation’ that give rise to taxpayer standing.” LeBeau,

422 S.W.3d at 288 (quoting Eastern Mo. Laborers Dist. Council, 781 S.W.2d at 47).


                                              7
       A taxpayer need not allege that it suffered a direct personal loss as a result of the

challenged act. Eastern Mo. Laborers Dist. Council, 781 S.W.2d at 46-47. But neither

will the mere filing of a lawsuit confer standing. Manzara, 343 S.W.3d at 659. The

taxpayer must show: “(1) a direct expenditure of funds generated through taxation; (2) an

increased levy in taxes; or (3) a pecuniary loss attributable to the challenged transaction

of a municipality.” Id.; accord LeBeau, 422 S.W.3d at 289, n.3; Eastern Mo. Laborers

Dist. Council, 781 S.W.2d at 47.

       To establish taxpayer standing resulting from “a direct expenditure of funds

generated through taxation,” the showing of an expenditure is mandatory. Manzara, 343

S.W.3d at 660. This Court held in Manzara that “[a]n expenditure is ‘[a] sum paid out.’

BLACK’S LAW DICTIONARY 658 (9th ed. 2009).” Id. Manzara determined that the

taxpayers in that case did not have standing to challenge a law granting certain tax credits

because a tax credit is not a sum paid out. Id. That means that “tax credits are not

expenditures” of public funds. Id. 5 In so holding, Manzara rejected the argument that a

tax credit should be treated like a tax expenditure because both result in a loss of monies

that otherwise would be held by the state. Id.

       Similarly, here, the provision of a different method of valuation of airport property

for tax purposes does not constitute an expenditure of public funds.         Rather, as in

Manzara, it at most means that funds will not become public funds in the first instance

5
  Cf. Tichenor v. Missouri State Lottery Comm’n, 742 S.W.2d 170, 172 (Mo. banc 1988)
(holding taxpayers had standing because they demonstrated expenditures by the state
lottery commission that they alleged were illegal); Berghorn v. Reorganized Sch. Dist.
No. 8, Franklin Cnty., 260 S.W.2d 573, 581 (Mo. 1953) (holding taxpayers had standing
because they challenged the expenditure of public funds for parochial schools).

                                             8
because they will not be paid in taxes. As with the tax credit at issue in Manzara, even if

a lower assessment results in less money being collected, the assessment is not an

expenditure and, therefore, cannot constitute “a direct expenditure of funds generated

through taxation.” Id.

       For similar reasons, the assessment provision for airport property cannot result in

“a pecuniary loss attributable to the challenged transaction of a municipality,” Manzara,

343 S.W.3d at 659, because the assessment of a particular property does not result in a

loss to the taxing entity; it merely affects the assessed value of a particular property.

       Airport Tech concedes that the above two categories of taxpayer standing may not

be present here. But, it argues, it has alleged enough to establish taxpayer standing by

showing “an increased levy in taxes” due to the lower assessment resulting from the

application of the airport property provision in section 137.115.1 to the TCC airport

property. Specifically, the property owners allege that the county must take in a certain

amount of money in taxes to meet its budget needs; so, if the airport property’s

assessment is too low, then the levy must go up to make up for the lost revenue.

       Airport Tech’s argument does not support standing. While couched in terms of an

increase in “the levy” to compensate for lost revenue, Airport Tech is not actually

alleging nor has it provided any evidence that Platte County has raised or intends to raise

the levy as a result of the airport property’s assessment. To the contrary, it simply

speculates that this will be the case because the county will need the same amount of tax

revenue regardless of whether the airport property provision applies.            Therefore, it

suggests, its own taxes ultimately may increase to make up for the lower assessment of


                                              9
the airport property.

       This argument has numerous deficiencies. First, there is no evidence that in

setting the current levy the county relied on the airport property being assessed at any

particular level; to the contrary, the only evidence is that the property previously has not

been subject to assessment because it was unimproved property owned by Kansas City.

It is pure speculation to suggest that the levy was in any way affected by the airport

property provision.

       Second, it is even more speculative to suggest that the county’s tax levy will be

raised in the future to make up for the alleged deficiency in assessment of the airport

property in the future. Future levies necessarily will be based on a complex array of

factors and laws and budget decisions. No one can state now what the levy will be in

future years or whether it would increase or decrease as a result of any particular

property’s assessment, much less can anyone guess how the airport property would be

assessed were section 137.115.1 not applicable. This is particularly true where, as here,

the record shows other exemptions might apply; for instance, there is evidence in the

record that TCC has subleased the property to an entity that would be entitled to a 50-

percent tax exemption regardless of whether section 137.115.1 applies.

       Further, to the extent that the assessment might be somewhat higher absent section

137.115.1, the county could choose not to make up for it, or to do so in a different way,

or it might find that the difference in assessed value of county property will not be

significantly affected by the assessment of the airport property.

       Finally, and even more basically, the record does not support Airport Tech’s claim


                                             10
that section 137.115.1 was the basis for the county’s assessment even in this case. While

Airport Tech relies on the affidavit of a member of the assessor’s office, it acknowledges

that the affidavit merely states “Because we estimated the assessed value to be zero, we

did not individually value the leasehold interests in the fee.” This does not, as Airport

Tech argues, show that section 137.115.1 was the basis for the assessment. To the

contrary, it shows that the assessor’s office failed to undertake an assessment of the

airport property under section 137.115.1 at all. This is confirmed by the affidavit of

another member of the assessor’s office, which states that the Platte County assessor’s

office has no documents or figures on which it could have undertaken the assessment

process required by section 137.115.1. Whatever else this record shows, it does not show

that section 137.115.1 provided the basis for assessing the airport property in question.

       This leaves only Airport Tech’s argument that its own taxes may be higher if the

lessee of the airport property pays no or too little tax. But, as the trial court correctly

discerned, this argument is simply another way of saying that “[i]f someone’s taxes go

down, mine will go up.” Such an argument is foreclosed by this Court’s decision in

McBeth. The issue in McBeth was whether a taxpayer could complain that the county

assessor had inadequately assessed the value of a power plant during the time of its

construction. This Court found the taxpayer did not have standing, stating:

       The longstanding rule in Missouri is that individual taxpayer plaintiffs lack
       standing to challenge other taxpayers’ property tax assessments, as they are
       not injured personally by others’ assessment calculations. …
       … Whether the taxpaying property owner is a corporation or a next-door
       neighbor (and the plaintiff a school district or an individual taxpayer), the
       principle that a third party is not permitted to challenge another’s property
       tax assessment applies equally.


                                            11
McBeth, 322 S.W.3d at 529-30; accord W.R. Grace & Co. v. Hughlett, 729 S.W.2d 203,

206-07 (Mo. banc 1987).

       While McBeth concerned an attack by another property owner on its neighbor’s

past assessments, McBeth’s reasoning applies to Airport Tech’s argument as well for it

argues that its own tax burden will go up because it will have to make up for a proportion

of the lost revenue from the airport property. If this rationale provided grounds for

taxpayer standing, then every property owner would be entitled to complain about every

other property owner’s assessment on the same basis—by claiming that the challenged

act would affect future assessments and indirectly lead to future tax increases paid by

other taxpayers, even though the total tax collected would remain the same. Missouri has

clearly and explicitly rejected such a basis for standing. McBeth, 322 S.W.3d at 530.

       W.R. Grace is also instructive. Relied on by this Court both in Manzara, 343

S.W.3d at 660-661, and in McBeth, 322 S.W.3d at 529, W.R. Grace rejected a taxpayer’s

claim that it had standing to challenge the constitutional validity of another taxpayer’s

exemption under the manufacturer’s tax for certain types of tangible personal property.

W.R. Grace, 729 S.W.2d at 206-07. The Court declined to find grounds for standing on

the basis that the effect of granting an exemption for certain property was that other

property would be taxed at a greater rate. Rather, the Court held that, even if true, the

taxpayer had no standing to raise this issue, for it simply sought to have the exemption

invalidated to get a refund of its own taxes paid. Id. at 205, 207. To obtain standing the

taxpayer must seek to protect the public interest rather than secure a personal benefit. Id.



                                            12
at 207.

          Finally, Airport Tech argues that it has standing as a taxpayer to challenge what it

asserts is the unlawful discharge of the tax laws and to require enforcement of the

Missouri Constitution’s provisions regarding taxation. To have such standing, however,

Airport Tech must fit its claims within one of the three categories set out above or else

have special statutory standing. For the reasons just noted, it does not. 6 In the absence of

standing, this Court cannot grant relief, nor can it give an advisory opinion. Farm

Bureau Town & Country Ins. Co. of Mo. v. Angoff, 909 S.W.2d 348, 353 (Mo. banc 1995)

(“Declaratory judgment actions should not be resorted to for the purpose of giving

advisory opinions”). In the absence of a plaintiff with standing to seek declaratory relief,

this Court can take no action but affirm the trial court’s judgment.

IV.    CONCLUSION

          For the reasons noted, this Court affirms the trial court’s judgment.



                                                    _________________________________
                                                      LAURA DENVIR STITH, JUDGE
          All concur.




6
  Airport Tech notes that in McBeth this Court found that the taxpayer did have standing
to seek a declaratory judgment as to what assessment procedures the statute required the
assessor to follow. 322 S.W.3d at 530-31. Unlike the taxpayer in McBeth, however,
Airport Tech complains not that the Platte County assessor failed to properly apply the
relevant taxing provisions but, rather, that the assessor did properly apply them.
Accordingly, the narrow basis for seeking declaratory relief recognized in McBeth, when
a county official allegedly has failed to perform a required assessor function, is not
helpful to Airport Tech. Moreover, Airport Tech has neither joined the assessor as a
party nor sued to require the assessor to properly carry out ministerial assessment duties.

                                               13
