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Jones vs Flowers and the obligations of the tax collector to give due process.

Updated: May 11, 2020

It is important to remember that the execution of a recorded fi.fa is a legal judgement that is subject to the application of due process in all proceedings.

Ga Code 48-4-1 contains the statutory requirements for due process.

A Tax sale execution is a case against the defendant. The case sets out to prove the delinquency of taxes owed, and the proper notification of action against the property in the collection of the delinquency. Verification of notice and the attempt to notify prove that.

While these statutes must be followed, it is incumbent on the tax collector to make reasonable efforts beyond the statutory requirements outlined in code section to secure proper notification.

JONES V. FLOWERS 547 U.S 220 (2006) was a Supreme Court case involving a tax sale in the state of Arkansas in 2002, where certified notice had been sent to the property and was returned to the Tax collector as undelivered. The owner, Gary Jones, did not live at the property address, and thus could not have signed for the letter. The property was subsequently advertised in the legal organ and sold to Linda Flowers.

Immediately after the 30-day period for postsale redemption passed, Flowers had an unlawful detainer notice delivered to the property. The notice was served on Jones' daughter, who contacted Jones and notified him of the unpaid taxes and the tax sale.

Jones filed a lawsuit in Pulaski County Circuit Court against the Commissioner and Flowers, alleging that the Commissioner's failure to provide notice of the tax sale and of Jones' right to redeem resulted in the taking of his property without due process. The Commissioner and Flowers moved for summary judgment on the ground that the two unclaimed letters sent by the Commissioner were a constitutionally adequate attempt at notice, and Jones filed a cross-motion for summary judgment. The trial court granted summary judgment in favor of the Commissioner and Flowers, concluding that the Arkansas tax sale statute, which set forth the notice procedure followed by the Commissioner, complied with constitutional due process requirements.

Jones appealed, and the Arkansas Supreme Court affirmed the trial court's judgment. The court noted Supreme Court precedent stating that due process does not require actual notice, and that attempting to provide notice by certified mail satisfied due process in the circumstances.

Jones then appealed to the United States Supreme Court which held that-

When mailed notice of a tax sale is returned unclaimed, a State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so. Pp. 4–12.

The USSC determined that because the Commissioner knew the notice was unclaimed and did not make additional “reasonable” attempts to contact Jones that his due process rights granted by the 4th amendment had been violated.

It is unlikely that a person who actually desired to inform an owner about an impending tax sale of a house would do nothing when a certified letter addressed to the owner is returned unclaimed. The sender would ordinarily attempt to resend the letter, if that is practical, especially given that it concerns the important and irreversible prospect of losing a house. The State may have made a reasonable calculation of how to reach Jones, but it had good reason to suspect when the notice was returned that Jones was no better off than if no notice had been sent. The government must consider unique information about an intended recipient regardless of whether a statutory scheme is reasonably calculated to provide notice in the ordinary case.

The Court held that although the statutory requirements were carried out as prescribed by Arkansas law, more could have been reasonably done.

The Commissioner and Solicitor General correctly note the constitutionality of that a particular notice procedure is assessed ex ante, not post hoc. But if a feature of the State’s procedure is that it promptly provides additional information to the government about the effectiveness of attempted notice, the ex ante principle is not contravened by considering what the government does with that information.

It further held that a taxpayer’s obligation to update a change of address is not applicable.

None of the Commissioner’s additional contentions—that notice was sent to an address that Jones provided and had a legal obligation to keep updated, that a property owner who fails to receive a property tax bill and pay taxes is on inquiry notice that his property is subject to governmental taking, and that Jones was obliged to ensure that those in whose hands he left his property would alert him if it was in jeopardy—relieves the State of its constitutional obligation to provide adequate notice.

Finally, it provided examples of what the Court determined would be “reasonable” steps that could have been taken to ensure due process.

Because additional reasonable steps were available to the State, given the circumstances here, the Commissioner’s effort to provide notice to Jones was insufficient to satisfy due process. What is reasonable in response to new information depends on what that information reveals. The certified letter’s return “unclaimed” meant either that Jones was not home when the postman called and did not retrieve the letter or that he no longer resided there. One reasonable step addressed to the former possibility would be for the State to resend the notice by regular mail, which requires no signature. Certified mail makes actual notice more likely only if someone is there to sign for the letter or tell the mail carrier that the address is incorrect. Regular mail can be left until the person returns home, and might increase the chances of actual notice. Other reasonable follow-up measures would have been to post notice on the front door or address otherwise undeliverable mail to “occupant.” Either approach would increase the likelihood that any occupants would alert the owner, if only because an ownership change could affect their own occupancy.

The Court further rejected the Commissioner’s claim that these additional steps would have been an undue burden on his office.

The Commissioner’s complaint about the burden of even these additional steps is belied by Arkansas’ requirement that notice to homestead owners be accomplished by personal service if certified mail is returned and by the fact that the State transfers the cost of notice to the taxpayer or tax sale purchaser.

In sum, the Court determined that the Tax Commissioner had indeed followed the statutory requirements outlined in Arkansas code (AR Code § 26-35-705) but given the knowledge that the returned notice had failed to notify the defendant, and that other, reasonable means of notification had not been pursued, the subsequent sale of the property was invalidated.

If the commissioner had provided any example of a reasonable attempt at notifying the defendant, knowing that the initial notices had been returned, the sale would have been upheld.

· By sending the notice additionally by regular mail

· By posting the property

· By attempting to notify by phone, or skip-tracing the defendant to find a current address.

Determining what is reasonable is a judgement for the tax collector. But in any event, exhausting all reasonable attempts to notify and documenting those steps in the process will ensure a stronger case in the event of litigation.

As Jones vs. Flowers proves, it cannot be said enough. Over notification is proper notification.

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