Klemmer v. Fayette Co. Tax Claim
Bureau – Cmwlth. Court – December 14, 2017
Upset tax sale set aside because tax
claim bureau (TCB) failed to make any effort to locate the property
owner, much less “reasonable efforts” required by 72 P.S. 5860.607a(a), where
the certified mail notice was returned unsigned to the TCB, because the
property owner was incarcerated during all relevant periods.
From the opinion:
Notice, due process
The Tax Sale Law requires a tax claim
bureau to give notice to the delinquent taxpayer before his property can be
sold in satisfaction of overdue taxes. .
. .The United States Supreme Court has held that due process is implicated when
property is taken for the collection of taxes, stating: [p]eople must pay their
taxes, and the government may hold citizens accountable for tax delinquency by
taking their property. But before forcing a citizen to satisfy his
debt by forfeiting his property, due process requires the government to provide
adequate notice of the impending taking. . . .To satisfy due process, a tax
claim bureau must provide “notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.” . . . .The notice
provisions of the Tax Sale Law “assure that no one is deprived of property
without due process of law.” . . . .Accordingly, a tax claim bureau must
strictly comply with each and every statutory notice provision, or the tax sale
will be set aside.
Focus on the actions of the TCB, not the
property owner
In reviewing the validity of a tax sale,
the court must focus “not on the alleged neglect of the owner, which is often
present in some degree, but on whether the activities of the [tax claim bureau]
comply with the requirements of the [statute].” Consolidated Reports, 132 A.3d at
644 (quoting Smith, 834 A.2d at 1251). It is the conduct of the tax claim
bureau that is determinative of compliance with the statutory notice
provisions.
Reasonable efforts requirement
Where a notice to the property owner is
either returned without the required signed return receipt, or there are other circumstances
which raise a “significant doubt” as to actual receipt of the notice, then
before a tax sale can take place, the TCB “must exercise reasonable efforts to
discover the whereabouts of [the property owner]and notify him. 72 P.S./ 5860.607a(a). The
statutory list of possible “reasonable efforts” details the “mandatory minimum
search required,” but what constitutes a reasonable effort is fact-specific. . . . .It matters not that the reasonable
effort may not have borne fruit. An effort must still be undertaken. . . . Futility
is not a defense to a tax claim bureau’s failure to exercise reasonable
efforts. Further, the tax claim bureau
must do a reasonable search even where the address to which the tax claim
bureau sent the notices is correct. . . .. Here, the Tax Claim Bureau did not
offer evidence that it undertook any effort to locate Taxpayer.
