A. At least twenty days but not more than thirty days before the date of the sale for delinquent taxes, the department shall notify by certified mail, return receipt requested, and, for abandoned real property, an additional letter sent by first class mail, to the address as shown on the most recent property tax schedule, each property owner whose real property will be sold that the owner's real property will be sold to satisfy delinquent taxes, unless:
(1) all delinquent taxes, penalties, interest and costs due are paid by 5:00 p.m. of the day prior to the date of the sale, or, for abandoned real property being sold via an online platform as provided in Subsection D of Section 7-38-67.1 NMSA 1978, all delinquent taxes, penalties, interest and costs due are paid by 5:00 p.m. of the day prior to the date the property is offered on the property tax division's website; or
(2) an installment agreement for payment of all delinquent taxes, penalties, interest and costs due is entered into with the department by 5:00 p.m. of the day prior to the date of sale in accordance with Section 7-38-68 NMSA 1978, or, for abandoned real property sold via an online platform as provided in Subsection D of Section 7-38-67.1 NMSA 1978, an installment agreement for payment of all delinquent taxes, penalties, interest and costs due is entered into with the department in accordance with Section 7-38-68 NMSA 1978 by 5:00 p.m. of the day prior to the date the property is offered on the property tax division's website.
B. The notice shall also:
(1) state the amount of taxes, penalties, interest and costs due;
(2) state the time and place of the sale;
(3) if online, state the date and time the sale begins and expires and the web address of the property tax division's website where the property being sold will be listed;
(4) describe the real property that will be sold;
(5) inform the property owner of the property owner's right to apply for an installment agreement with the department for payment of delinquent taxes, penalties, interest and costs, in accordance with Section 7-38-68 NMSA 1978;
(6) provide information on the name and phone number of the individual in the department the owner can contact to arrange for an installment agreement in accordance with Section 7-38-68 NMSA 1978; and
(7) contain any other information that the department may require by rule.
C. At the same time a notice required by Subsection A of this section is sent to the owner of the real property, a notice containing the information set out in Subsection B of this section shall also be sent to each person holding a lien or security interest of record in the property if an address for such person is reasonably ascertainable through a search of the property records of the county in which the property is located.
D. Failure of the department to mail a required notice by certified mail, return receipt requested, shall invalidate the sale; provided, however, that return to the department of the notice of the return receipt shall be deemed adequate notice and shall not invalidate the sale.
E. Proof that all delinquent taxes, penalties, interest and costs had been paid by 5:00 p.m. of the day prior to the date of sale shall prevent or invalidate the sale.
F. For abandoned real property sold via an online platform as provided in Subsection D of Section 7-38-67.1 NMSA 1978, proof that the owner has paid all delinquent taxes, penalties, interest and costs due by 5:00 p.m. of the day prior to the date the property is offered on the property tax division's website shall invalidate the sale.
G. Proof that the owner has, by 5:00 p.m. of the day prior to the date of sale, entered into an installment agreement to pay all delinquent taxes, penalties, interest and costs as provided in Section 7-38-68 NMSA 1978 and that timely payments under such agreement are being made shall prevent or invalidate the sale.
H. For abandoned real property sold via an online platform as provided in Subsection D of Section 7-38-67.1 NMSA 1978, proof that the owner has entered into an installment agreement with the department for payment of all delinquent taxes, penalties, interest and costs due in accordance with Section 7-38-68 NMSA 1978 by 5:00 p.m. of the day prior to the date the property is offered on the property tax division's website shall invalidate the sale.
I. The time requirements of this section are subject to the provisions of Section 7-38-83 NMSA 1978.
History: 1953 Comp., § 72-31-66, enacted by Laws 1973, ch. 258, § 106; 1980, ch. 104, § 1; 1982, ch. 28, § 23; 1983, ch. 215, § 4; 1990, ch. 22, § 8; 2001, ch. 253, § 2; 2001, ch. 254, § 2; 2018, ch. 50, § 2.
ANNOTATIONSThe 2018 amendment, effective May 16, 2018, provided procedures for the sale of abandoned real property for which delinquent property tax is due; in Subsection A, in the introductory clause, after "return receipt requested", added "and, for abandoned real property, an additional letter sent by first class mail", in Paragraph A(1), after "date of the sale", added the remainder of the paragraph, and in Paragraph A(2), after "Section 7-38-68 NMSA 1978", added the remainder of the paragraph; in Subsection B, added a new Paragraph B(3) and redesignated former Paragraphs B(3) through B(6) as Paragraphs B(4) through B(7), respectively, in Paragraph B(5), after "property owner of", deleted "his" and added "the property owner's", and after "right to", deleted "enter into" and added "apply for", in Paragraph B(6), after "department the", deleted "taxpayer" and added "owner", and in Paragraph B(7), after "require by", deleted "regulation" and added "rule"; in Subsection C, after "owner of the", added "real"; in Subsection E, after "Proof", deleted "by the taxpayer"; added a new Subsection F and redesignated former Subsection F as Subsection G; in Subsection G, after "Proof", deleted "by the taxpayer", and after "that the", deleted "taxpayer" and added "owner"; and added Subsection H and redesignated former Subsection G as Subsection I.
The 2001 amendment, effective June 15, 2001, in Paragraphs A(1), (2) and Subsection E, substituted "by 5:00 p.m. of the day prior to the date of sale" for "by the date of sale"; added Paragraphs B(4) and (5); in Subsection F, added "by 5:00 p.m. of the day prior to the date of sale" and deleted "prior to the date of sale" following "interests and costs"; and added Subsection G.
The 1990 amendment, effective May 16, 1990, substituted "department" for "division" throughout the section; added Subsection C; redesignated former Subsections C to E as Subsections D to F; rewrote the provisions of Subsection D which read "Failure of the division to mail the notice by certified mail, return receipt requested, or failure of the division to receive the return receipt shall invalidate the sale; provided, however, that the receipt by the division of a return receipt indicating that the taxpayer does not reside at the address shown on the most recent property tax schedule shall be deemed adequate notice and shall not invalidate the sale"; and made numerous minor stylistic changes.
Taxpayer testimony insufficient to create issue of material fact. — In the face of documentary evidence establishing that the initial payment made by taxpayer for delinquent taxes corresponded to payment of one-half of his delinquent taxes, penalties, and interest, taxpayer's self-serving testimony as to his subjective belief that he had paid his taxes for certain tax years was insufficient to create a genuine issue of material fact as to prior payment. Cordova v. N.M. Taxation & Revenue Dep't., 2005-NMCA-009, 136 N.M. 713, 104 P.3d 1104.
Due process required. — A tax sale by the division is a taking of property by the government, and the notice of such taking must comply with minimum due process standards under the United States and New Mexico Constitutions. Patrick v. Rice, 1991-NMCA-063, 112 N.M. 285, 814 P.2d 463, cert. denied, 112 N.M. 308, 815 P.2d 161.
Section 7-38-70C NMSA 1978 subject to notice requirements. — The legislature did not intend to apply Section 7-38-70C NMSA 1978 (limitation period to challenge tax sale) when the state fails to comply with the notice requirements of this section and federal and state constitutional due process requirements. Hoffman v. State Taxation & Revenue Dep't, 1994-NMCA-032, 117 N.M. 263, 871 P.2d 27.
Due process requirements. — Due process requires that the state must provide notice of sale to parties whose interest in property would be affected by a tax sale, as long as that information is reasonably ascertainable. Brown v. Greig, 1987-NMCA-096, 106 N.M. 202, 740 P.2d 1186, cert. denied, 106 N.M. 174, 740 P.2d 1158.
Persons to whom notice is necessary. — In keeping with the intent of the legislature to notify "each property owner" of an impending sale of his property, it is implicit that the legislature also intended that holders of record title be notified of the same thing. Brown v. Greig, 1987-NMCA-096, 106 N.M. 202, 740 P.2d 1186, cert. denied, 106 N.M. 174, 740 P.2d 1158.
Indications of ownership. — When the record owner of three lots orally notified the county assessor that he no longer owned the lots and would not be responsible for the property taxes, that notice did not constitute a waiver of his right to be notified of the subsequent delinquency prior to the tax sales, where the purchaser never recorded his deeds, record owner repurchased the properties, and no documentation, other than the grant of an easement, appeared of record which would have indicated purchaser's interest in the property. Brown v. Greig, 1987-NMCA-096, 106 N.M. 202, 740 P.2d 1186, cert. denied, 106 N.M. 174, 740 P.2d 1158.
Notice requirements in effect at time of sale apply. — A tax sale is controlled by the notice requirements in effect at the time of the sale, not by those in effect when the tax lien arose. Buescher v. Jaquez, 1983-NMSC-107, 101 N.M. 2, 677 P.2d 615.
Reasonable diligence to locate taxpayer contact information. — Where the state failed to contact the utility company that served the nonresident taxpayer's rural property, to red tag the taxpayer's property with a warning of the tax deficiency, and to access public records in the state where the taxpayer was known to reside; accessed only two internet websites that contained published telephone and address information when the state knew that the contact information listed under the taxpayer's name was unpublished; and although the taxpayer was a prominent businessman and property owner in his home state, failed to use internet websites that would produce information about the taxpayer, the state was not reasonably diligent in attempting to locate the reasonably ascertainable contact information of the deficient taxpayer before selling his property at auction in violation of due process. Gates v. N.M. Taxation & Revenue Dept., 2008-NMCA-023, 143 N.M. 446, 176 P.3d 1178.
Duty to seek correct address. — Subsection A requires the division (department) to send notice to delinquent taxpayers via certified mail, return receipt requested. This requirement implicitly requires the division (department) to send the notice to the correct address. The division (department) has an affirmative duty to seek out, by "diligent search and inquiry", the correct address of each property owner, and failure to do so may violate due process. Patrick v. Rice, 1991-NMCA-063, 112 N.M. 285, 814 P.2d 463, cert. denied, 112 N.M. 308, 815 P.2d 161.
Incorrect address does not invalidate sale. — The return of a notice of tax sale to the department indicating an incorrect address did not invalidate the tax sale. Cano v. Lovato, 1986-NMCA-043, 105 N.M. 522, 734 P.2d 762, cert. quashed, 105 N.M. 438, 733 P.2d 1321 (1987).
Incorrect address immaterial if notice received. — The incorrect address on the envelope is immaterial if the notice actually got to the right address. The statute does not turn on the technical accuracy of the address typed on the envelope, which is merely a delivery vehicle, but upon mailing the notice "to the address" shown on the latest tax schedule. Wine v. Neal, 1983-NMSC-087, 100 N.M. 431, 671 P.2d 1142.
Incorrect address immaterial if no challenge on those grounds. — There is no basis for voiding a tax sale merely because the proper address was not correctly printed on the notice envelope, where there is no challenge as to whether the notice actually reached the correct address. Wine v. Neal, 1983-NMSC-087, 100 N.M. 431, 671 P.2d 1142.
Intent of 1990 amendment to Subsection D. — Subsection D of this section, as amended in 1990, was intended to legislatively overrule the Supreme Court's decision in State ex rel. Klineline v. Blackhurst, 1988-NMSC-015, 106 N.M. 732, 749 P.2d 1111. Cordova v. N.M. Taxation & Revenue Dep't., 2005-NMCA-009, 136 N.M. 713, 104 P.3d 1104.
Receipt of notice of return receipt shall be deemed adequate notice as long as the notice of the tax sale was mailed in compliance with Subsection A of this section. Cordova v. N.M. Taxation & Revenue Dep't., 2005-NMCA-009, 136 N.M. 713, 104 P.3d 1104.
Failure to notify rendering sale invalid. — Tax sale was invalid since the owner had sent the county a change of address and the division's attempt to notify the owner of delinquent taxes and of the tax sale failed, due primarily to the county treasurer's initial failure to properly record the owner's new address. Chavez v. Sharvelle, 1988-NMCA-005, 106 N.M. 793, 750 P.2d 1119, cert. denied, 107 N.M. 16, 751 P.2d 700.
Validity of sale not affected by failure to deliver notice. — Since party did not receive the notices required by former 72-8-30, 1953 Comp., to be mailed to him by the tax commission at least 30 days (now 20) prior to the actual sale, if such notice was mailed, it was specifically provided in that section that the fact that the notice was not delivered to the addressee would not affect the validity of any subsequent sale. Bailey v. Barranca, 1971-NMSC-074, 83 N.M. 90, 488 P.2d 725.
Effect of failure of notice. — A tax sale will not be invalidated under the curative act for failure to give, or of the taxpayer to receive, notice of taxes due or that redemption time is about to expire. Bailey v. Barranca, 1971-NMSC-074, 83 N.M. 90, 488 P.2d 725; Worman v. Echo Ridge Homes Coop., 1982-NMSC-081, 98 N.M. 237, 647 P.2d 870.
Failure to give notice does not constitute constructive fraud. — Failure to give notice of a tax sale of land or the failure of taxpayer to receive such notice, standing alone, does not constitute constructive fraud invalidating the tax sale. Lamb v. Manley, 1954-NMSC-046, 58 N.M. 292, 270 P.2d 706; Worman v. Echo Ridge Homes Coop., 1982-NMSC-081, 98 N.M. 237, 647 P.2d 870.
The failure to send notice of a delinquent tax sale to the record owner, and to red tag the land, does not amount to constructive fraud. Worman v. Echo Ridge Homes Coop., 1982-NMSC-081, 98 N.M. 237, 647 P.2d 870.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 72 Am. Jur. 2d State and Local Taxation §§ 904 to 930.
Effect of misnomer of landowner or delinquent taxpayer in notice, advertisement, etc. of tax foreclosure or sale, 43 A.L.R.2d 967.
Omissions: validity of notice of tax sale or of tax sale proceeding which fails to state tax year or kind or type of taxes covered by tax assessments, 43 A.L.R.2d 988.
Inclusion or exclusion of first and last days in computing the time for performance of an act or event which must take place a certain number of days before a known future date, 98 A.L.R.2d 1331.
85 C.J.S. Taxation § 1101 et seq.