Adams, 083120 SCAGO, AGO 3261

• Case Date: August 31, 2020
• Court: South Carolina

The Honorable David A. Adams AGO 3261 No. 3261 South Carolina Attorney General Opinion State of South Carolina Office of the Attorney General August 31, 2020          The Honorable David A. Adams          Treasurer          Richland County          P.O. Box 11947          Columbia, South Carolina 29211          Dear Mr. Adams:          We received your letter addressed to Attorney General Alan Wilson requesting an opinion of this Office concerning delinquent tax sales during the Covid-19 pandemic. Your request consists of eight specific questions which we address individually below.          Law/Analysis          1. Pursuant to its Industry Alert, "COVID-19 CONTINUITY OF OPERATIONS UPDATE," the United States Postal Service has changed its certified mail procedures to not allow signatures on certified mail return receipts. Instead, "[c]arriers will maintain a safe distance by not requesting a signature ¯ instead they will ask for the customer's first initial and last name." [Delinquent tax collectors (DTCs)] have no control over the action of the USPS. Heretofore, only a legible recipient's signature was deemed sufficient notice to delinquent taxpayers. Properties without a recipient signature would then go through the costly process of physically putting a sign on each property. If the USPS' new certified procedures do not meet the legal standard then all properties will have to be physically "posted" even after the counties have mailed the required/costly certified mail. Will USPS' new procedures (to enter the initials of the recipient), changed specifically due to COVID-19, be sufficient for the purposes of Subsection 12-51-40(b)?          Section 12-51-40 of the South Carolina Code (2014 & Supp. 2019) is contained in the sections of the Code governing alternative procedures for the collection of property taxes. Section 12-51-40 pertains to procedures by which DTCs levy the execution by distress and sell a defaulting taxpayer's property to satisfy outstanding taxes. As part of this process, the DTCs must take "possession" of the property. Section 12-51-40(b) allows DTCs to take possession by certified mail and states as follows:

If the taxes remain unpaid after thirty days from the date of mailing of the delinquent notice, or as soon thereafter as practicable, take exclusive possession of the property necessary to satisfy the payment of the taxes, assessments, penalties, and costs. In the case of real property, exclusive possession is taken by mailing a notice of delinquent property taxes, assessments, penalties, and costs to the defaulting taxpayer and any grantee of record of the property at the address shown on the tax receipt or to an address of which the officer has actual knowledge, by "certified mail, return receipt requested-restricted delivery" pursuant to the United States Postal Service "Domestic Mail Manual Section S912". If the addressee is an entity instead of an individual, the notice must be mailed to its last known post office address by certified mail, return receipt requested, as described in Section S912. In the case of personal property, exclusive possession is taken by mailing the notice of delinquent property taxes, assessments, penalties, and costs to the person at the address shown on the tax receipt or to an address of which the officer has actual knowledge. All delinquent notices shall specify that if the taxes, assessments, penalties, and costs are not paid before a subsequent sales date, the property must be duly advertised and sold for delinquent property taxes, assessments, penalties, and costs. The return receipt of the "certified mail" notice is equivalent to "levying by distress".

S.C. Code Ann. § 12-51-40(b) (2014).          From your letter, we understand while DTCs are continuing to use certified mail through the USPS as is required by the statute, the USPS' procedures have changed and no longer require a signature. Therefore, you are concerned that despite mailing the delinquent notice to the taxpayers via certified mail, return receipt requested-restricted delivery, this process is not sufficient to gain exclusive possession over the property in accordance with section 12-51-40.          As you noted in your request letter and as we acknowledged in a recent opinion issued by our Office on August, 3, 2020, our courts require strict compliance with the legal requirements pertaining to tax sales, especially in dealing with notice requirements. Op. Att'y Gen., 2020 WL 4730384 (S.C.A.G. Aug. 3, 2020). The Court of Appeals recently explained,

"[F]ailure to give the required notice of a tax sale is a fundamental defect in the tax sale proceedings that renders the proceedings absolutely void." Hawkins v. Bruno Yacht Sales. Inc., 353 S.C. 31, 36, 577 S.E.2d 202, 205 (2003). "The sound view is that all requirements of law leading up to the tax sales [that] are intended for the protection of the tax payer against surprise or the sacrifice of his property are to be regarded as mandatory and are to be strictly enforced." Rives, 325 S.C. at 292-93, 478 S.E.2d at 881. Even "the fact that the defaulting taxpayer has actual notice of the impending tax sale 'is insufficient to uphold a tax sale absent strict compliance with statutory requirements."' Hawkins, 353 S.C. at 36, 577 S.E.2d at 205 (quoting In Re Ryan Inv. Co., 335 S.C. at 395, 517 S.E.2d at 693).

Halsey v. Simmons, 429 S.C. 385, 395, 837 S.E.2d 919, 925 (Ct.App. 2020), reh'g denied (Feb. 20, 2020). Thus, we must strictly construe section 12-51-40 to protect the taxpayer against any surprise or the sacrifice of his or her property.          Nonetheless, section 12-51-40 does not specifically require the taxpayer's signature, but only requires the notice be sent by "certified mail." "The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature." Bryant v. State, 384 S.C. 525, 529, 683 S.E.2d 280, 282 (2009) (citations omitted) (quotation omitted). "'What a legislature says in the text of a statute is considered the best evidence of the legislative intent or will. Therefore, the courts are bound to give effect to the expressed intent of the legislature.'" Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000) (quoting Norman J. Singer, Sutherland Statutory Construction § 46.03 at 94 (5th ed. 1992)). Accordingly, we...