98-58 Tax deeds, recording requirements for tax deed sale
RE: AD VALOREM TAXATION--TAX DEEDS--CLERKS OF CIRCUIT COURTS--OFFICIAL RECORDS--PUBLIC RECORDS--requirement that clerk of circuit court record notice of publication and affidavit of publisher for tax deed sale. s. 197.512, Fla. Stat.
Must the clerk of court record a certificate of mailing and publisher's affidavit if property that is subject to a tax deed sale is not sold, but the tax certificate is redeemed prior to the sale or the property is placed on a list of lands available for taxes?
In sum:
The clerk of court is required to record a certificate of mailing and publisher's affidavit when an application for a tax deed has been made on property whether the property is ultimately sold to the highest bidder, redeemed prior to the sale, or placed on a list of lands available for taxes.
You state that it has been the procedure of your office to record a certificate of mailing and publisher's affidavit only if the property subject to a tax deed sale is sold, since the ultimate disposition of the application for a tax deed has not occurred if the tax deed sale does not take place. If the property is redeemed prior to the sale, these documents are placed in the tax deed file and are not recorded.
Section 197.502(1), Florida Statutes, allows the holder of a tax certificate to file an application for a tax deed with the tax collector of the county where the lands described in the certificate are located. At the time of application, the certificateholder must pay all amounts required for redemption or purchase of all other outstanding tax certificates, plus interest, any omitted taxes, plus interest, any delinquent taxes, plus interest, and current taxes, if due, covering the land.
1 The tax collector must deliver to the clerk of the circuit court a statement that payment has been made for all outstanding certificates and specifying persons to be notified prior to the sale of the property.
2The clerk of circuit court is required to advertise and administer the sale and receive such fees for issuance of the deed and sale of the property as provided in section 28.24, Florida Statutes.
3 Once the application and the appropriate fees have been received by the clerk, section 197.512(1), Florida Statutes, directs the clerk to publish a notice once each week for four consecutive weeks at weekly intervals in a newspaper selected as provided in section 197.402, Florida Statutes.
4 Proof of the publication must be filed by the clerk of the circuit court in the clerk's office on or before the date proposed for the sale.
5 Should there be no newspaper, the clerk shall execute and file in his or her office a certificate of posting of the notices, stating where and on what dates the notices were posted.
6Section 197.542(1), Florida Statutes, dictates that the lands advertised for sale to the highest bidder as a result of an application for a tax deed must be sold at public auction by the clerk of court on the date, at the time, and at the location described in the published notice. The amount required to redeem the tax certificate, plus charges for the sale, costs for the redemption of other certificates, interest, and costs incurred for service of notice are considered the bid of the certificateholder for the property. In instances where the property is homestead, the bid is increased to include one-half of the assessed value of the homestead property. If there are no higher bids, the property is struck off and sold to the certificateholder; otherwise, the property is sold to the highest bidder.
If there are no bidders at the public sale, the clerk of court enters the land on a list entitled "lands available for taxes" and immediately notifies the county commission and all other persons holding certificates against the land that it is available. The county may, at any time within ninety days of the offering for public sale, purchase the property for the opening bid. After ninety days, any person or governmental unit may purchase the property without further notice.
7 Should there be no purchaser seven years from the date the land was offered for public sale, the land escheats to the county in which it is located, all tax certificates and liens against the property are canceled, and the clerk executes a tax deed vesting title in the board of county commissioners of the county in which it is located.
8Section 197.512(3), Florida Statutes, provides:
"Upon ultimate disposition of the application for a tax deed, the clerk shall enter his or her certificate of notice and his or her certificate of advertising in the public records of the county with such other relevant documents as may be required by the department."
The Department of Revenue, in implementing this section, has promulgated a rule stating:
"The clerk of the circuit court shall record his or her certificate of notice together with the affidavit of publisher (proof of publication) in the official records of the county. For the recording of the certificate of notice and affidavit of publisher the clerk shall receive such fees for recordation as specified in Chapter 28, Florida Statutes."
9The department also requires the clerk to prepare a certificate containing the names and addresses of those persons notified by mail and the date of the mailing and to attach such certificate to the affidavit of publisher.
10 The department does not condition these requirements on the "ultimate disposition" of the application for a tax deed, such that it could be concluded that the tax deed must be issued before the specified documents must be filed in the public record. As the administrative agency charged with implementation of the statute, the department's interpretation is entitled to great deference.
11Thus, the directive in section 197.512, Florida Statutes, to file the certificate of notice and affidavit of publisher in the public records applies regardless of whether the property is purchased, the tax certificate is redeemed prior to the sale, or the property is placed on the list of lands available for taxes.
Accordingly, section 197.512, Florida Statutes, directs the clerk of court to record the certificate of notice and affidavit of publisher relating to property subject to a tax deed sale even though the tax certificate may be redeemed prior to the sale or the property is not sold at public auction and is placed on the list of lands available for taxes.
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10-22 Taxation, refund when tax deed cancelled
RE: TAX DEEDS – REFUNDS – TAX COLLECTOR – PROPERTY APPRAISER – procedure for refunds when tax deed cancelled. ss. 197.122 and 197.182, Florida Statutes.
What statutory procedure is the tax collector required to follow in refunding money paid by the purchaser of a tax deed when taxation of that property was in error?
In sum:
Section 197.432(10), Florida Statutes, and Rule 12D-13.057, Florida Administrative Code, describe the procedure to be used by the tax collector in refunding payments on a tax deed sold based upon an improperly issued tax certificate.
According to your letter, a parcel of real property located in Lake County, Florida, was recently sold for the nonpayment of taxes at a tax deed sale. Following the sale, it appears that a determination was made by county officials that the property was assessed erroneously and that the tax deed should not have been sold. The Tax Collector has requested this office's assistance in determining what process should be followed in providing a refund in such a situation.
Section 197.432, Florida Statutes, sets forth the procedure for the sale of tax certificates by the tax collector. Each sold certificate is "struck off to the person who will pay the taxes, interest, costs, and charges and will demand the lowest rate of interest, not in excess of the maximum rate of interest allowed by this chapter."1 In any case where there is no buyer, the certificate shall be issued to the county at the maximum rate of interest allowed by Chapter 197, Florida Statutes.2
Section 197.432, Florida Statutes, contains a procedure addressing refunds for tax certificates which have been determined to be void due to an error of the property appraiser:
"Any tax certificates issued pursuant to this section after January 1, 1977, which are void due to an error of the property appraiser, the tax collector, any other county official, or any municipal official and which are subsequently canceled, or which are corrected, pursuant to this chapter or chapter 196 shall earn interest at the rate of 8 percent per year, simple interest, or the rate of interest bid at the tax certificate sale, whichever is less, calculated from the date the certificate was purchased until the date the refund is ordered. Refunds made on tax certificates that are corrected or void shall be processed in accordance with the procedure set forth in s. 197.182, except that the 4-year time period provided for in s. 197.182(1)(c) does not apply to or bar refunds resulting from correction or cancellation of certificates and release of tax deeds as authorized herein."3
The statute specifically provides that "if the taxpayer contacts the property appraiser first, the property appraiser shall refer the taxpayer to the tax collector."4
Thus, section 197.432, Florida Statutes, directs that refunds must be processed in accordance with section 197.182, Florida Statutes, and that interest is to be calculated and paid on these certificates. Section 197.182, Florida Statutes, generally provides that the Department of Revenue "shall pass upon and order" refunds when payment of taxes assessed on the county tax rolls has been made "for tax certificates that are subsequently corrected or are subsequently determined to be void under s. 197.443."5
Rules of the Department of Revenue require that the tax collector initiate action to cancel any improperly issued tax deed that has been sold based on an improperly issued certificate when the taxpayer or his or her representative has made a written request of the tax collector advising him or her of the error.6 The rule requires that, in situations where the error involves land on which a tax deed has been sold, it is the tax collector's duty to report such findings to the clerk of the court.7 Certificates may be canceled only by a court or upon approval by the Department of Revenue for the following reasons:
"(a) Taxes have been paid;
(b) Lands were not subject to taxation at the time of assessment;
(c) The description of the property in the tax certificate is void;
(d) an error or omission that invalidates the sale;
(e) The tax certificate is void for some other reason."8
The holder of a tax certificate which is void pursuant to these provisions is entitled to receive the purchase price plus interest at the rate bid at the tax certificate sale or eight percent, whichever is less, calculated monthly from the date of purchase until the date the refund is ordered.9 The interest is charged to the taxing authorities on a pro-rata basis.10 The county officer or taxing authority responsible for the error resulting in issuance of the void tax certificate is also responsible for the costs of advertising incurred in the sale of the tax certificate.
When the Department of Revenue orders a refund, section 197.182(2)(a), Florida Statutes, requires that a copy of the department's order be forwarded to the tax collector "who shall then determine and certify to the county, the district school board, each municipality, and the governing body of each taxing district, their pro rata shares of such refund, the reason for the refund, and the date the refund was ordered by the department." The statute then describes the duties of each taxing authority:
"The board of county commissioners, the district school board, each municipality, and the governing body of each taxing district shall comply with the order of the department in the following manner:
1. Authorize the tax collector to make refund from undistributed funds held for that taxing authority by the tax collector;
2. Authorize the tax collector to make refund and forward to the tax collector its pro rata share of the refund from currently budgeted funds, if available; or
3. Notify the tax collector that the taxing authority does not have funds currently available and provide in its budget for the ensuing year funds for the payment of the refund."11
Refunds ordered by the department to be made pursuant to section 197.182, Florida Statutes, must be made by the tax collector as one aggregate amount made up of all the pro rata shares of the several taxing authorities concerned. A partial refund is allowed by the statute when one or more of the taxing authorities concerned does not have funds currently available to pay their pro rata share of the refund and this would result in an unreasonable delay in the total refund.12 The tax collector is required to provide a statement explaining the refund to accompany the refund payment.13
In sum, it is my opinion that section 197.432(10), Florida Statutes, and Rule 12D-13.057, Florida Administrative Code, describe the procedure to be used by the tax collector in refunding payments on a tax deed sold based upon an improperly issued tax certificate.
