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Tax Deeds and “Defendable Titles”

Randall M. Case, Proceedings of 22nd Annual Rocky Mountain Mineral Law Institute (1976)

The power of taxation of property resides in the legislatures of the various states as an incident of their sovereignty, and authority to levy, assess and collect taxes on property flows from the legislature by statute. In the absence of at least implied taxing authority derived from the state, local governments may not impose property taxes.1 Typically, each of the states with which this paper is concerned has historically had a comprehensive taxing scheme which provides detailed procedures for property assessment and for levy and collection of property taxes.

As a tax against property, rather than the owner of property, legislatures have uniformly provided the local taxing authority, generally the county, with the power to sell the taxed property in order to recover unpaid taxes as the primary, if not the exclusive, means of enforcement of the tax collection process. Carried to its conclusion, a tax sale proceeding of necessity divests the delinquent owner of title to his land and vests that title, generally intended to be paramount to all prior interests, in the recipient of a tax deed.

Historically, courts have held forfeitures of any kind in disfavor, and tax titles with their inception in involuntary divestiture have been particularly susceptible to judicial [514] declarations of invalidity,2 such that in the absence of availability of statutory provisi