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Due Process Requirements for Tax Sales

Marion County Auditor v. Sawmill Creek, LLC (Ind. March 21, 2012)

- Originally published March 22, 2012

This case discusses the adequacy of notice of a tax sale for property under the U.S. Constitution’s due process clause. In this case, a company issued a tax deed to a piece of property and mailed notice to the last address the property owner had provided to the auditor’s office. The notice was returned stamped “not deliverable as addressed, unable to forward.” The auditor then published a list of properties for sale in the newspaper, on its website, and on a list posted outside of the clerk’s office. The property owner claimed to never receive notice and the property was sold.

All parties agreed the auditor complied with the notice statute in effect at the time of the tax sale. However, the property owner argued that the auditor’s efforts violated due process under the U.S. Supreme Court decision Jones v. Flowers, 547 U.S. 220 (2006). The Flowers decision clarified that under certain circumstances, where a state knows that a property owner has not received notice of a tax sale, the state is required to take reasonable steps to notify the property owner. The Flowers court did not tell states exactly what they must do before property is sold at a tax sale. However, the Supreme Court did suggest that several states, including Indiana, had statues in place that did not comply with the due process requirement. The Indiana legislature responded to Flowers by amending our notice statute, Indiana Code section 6-1.1-25-4.6.

In Sawmill Creek, our Supreme Court concluded that under the specific facts of this case, the Auditor satisfied the due process requirement as articulated by the U.S. Supreme Court in Flowers. Specifically, the Court noted that the Auditor was faced with property that was unimproved, bare land and the owner could not be found. The Court also recognized that the auditor searched the chain of title for the property, the records for the Indiana Secretary of State, and the phonebook in efforts to locate a new or alternative address for the property owner. The Court noted that posting notice on the property was not reasonable, as there were no improvements on the property. The Court also noted that the Marion County Auditor received 1,800 returned notices in 2005 alone and that posting notice on all of these properties would impose an unreasonable burden.

Justice Rucker dissented, believing that the trial court and the Court of Appeals correctly decided that the Auditor’s attempts to notify the property owner in this case did not satisfy the due process requirements as articulated by the U.S. Supreme Court in Flowers.

Because the U.S. Supreme Court has declined to specify the procedures that a state must take to notify a property owner of a tax sale in order to satisfy the due process clause, disputes will undoubtedly occur regarding whether notice of a tax sale satisfied the due process clause. This case demonstrates the difficulty of applying the general due process requirement to unique facts in the tax sale context. One trial court judge, three members of the Court of Appeals, and Justice Rucker believe the auditor in this case did not satisfy due process. Four members of the Supreme Court believe the auditor did satisfy due process. Therefore, although this case certainly presents some guidance and is important for practitioners in the area of the law, the decision does not provide any bright line rule regarding what notice is constitutionally adequate.

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