If a Mississippi county hires an online auction vendor to run its delinquent tax sale, can the $20-per-parcel auction fee be charged to property owners who redeem their land?

Plain-English summary

Wilkinson County contracted with an online auction vendor to run its April 2023 sale of land on which property taxes were delinquent. The vendor's fee was $20 per parcel sold. Historically, the county had absorbed those costs.

The Chancery Court Clerk asked: when an owner comes in to redeem land that was sold at the tax sale, can the county add that $20 auction expense to the redemption amount as part of the "costs incident to the sale" under Section 27-45-3?

The AG said yes. Section 27-45-3 is the redemption statute. It requires a redeeming owner to pay:

• The taxes for which the land was sold.
• "All costs incident to the sale."
• 5% damages on the tax amount.
• 1.5% per month interest on taxes and costs.
• All costs that have accrued on the land since the sale, with interest.

The phrase "costs incident to the sale" is unambiguous. The auction fee paid to the online vendor is exactly that: a cost the county incurred to conduct the sale. The AG cited a 1986 opinion (McGee) holding that mailing notice costs are part of the incidental cost of a sale. The same logic applies to auction-vendor fees.

The practical effect: when counties move to online auctions for delinquent property tax sales, the per-parcel fee passes through to the redeeming owner as part of the redemption amount. This protects the county from absorbing the cost while still giving owners their statutory two-year redemption window.

What this means for you

If you're a Mississippi delinquent property owner

Under this opinion, if your county sold your land at a tax sale and you want to redeem it, the redemption amount under § 27-45-3 includes the county's per-parcel online auction fee as a "cost incident to the sale." The statute requires you to pay the taxes for which the land was sold, all costs incident to the sale, 5% damages on the tax amount, 1.5% per month interest on the taxes and costs from the date of sale, and all costs accrued since the sale with interest. Redemption is available within two years of the sale.

If you're a chancery court clerk

Under this opinion, when an owner redeems land sold through an online auction vendor, the per-parcel auction fee may be included in the "costs incident to the sale" component of the § 27-45-3 redemption amount. The AG treats the auction fee the same way the McGee (1986) opinion treated the cost of mailing notices: as part of the incidental cost of the sale.

If you're a Mississippi county tax collector or board

Under this opinion, the county may assess the per-parcel online auction fee against redeeming owners as a cost incident to the sale, rather than absorbing it. The AG notes that § 27-41-59(2) authorizes a tax collector to contract with an online provider to conduct tax sales "so long as the agreement is ratified by the county board of supervisors." The opinion addresses the specific $20 fee described in the request and does not opine on any other fee amount.

If you're a real estate attorney handling a tax sale matter

Under this opinion, the auction fee qualifies because "costs incident to the sale" in § 27-45-3 is "unambiguous" and the auction fee is a cost the county incurred to conduct the sale. The AG grounds that in the plain-meaning rule from City of Tchula v. Mississippi Public Service Commission (Miss. 2016) and in McGee (1986). The opinion does not address what other expenses would or would not qualify.

Common questions

Q: What does Section 27-45-3 require for redemption?
A: To redeem, the owner (or an interested party with the owner's consent) must pay the chancery clerk the unpaid taxes, "all costs incident to the sale," 5% damages on the tax amount, 1.5% per month interest on taxes and costs from the date of sale, plus all costs accrued on the land since the sale with interest.

Q: How long do I have to redeem?
A: Section 27-45-3 allows redemption "at any time within two (2) years after the day of sale."

Q: Why does the auction fee count as a "cost incident to the sale"?
A: The AG says the phrase is "unambiguous," and the auction fee is a cost the county incurred to conduct the sale. It draws the same conclusion the McGee (1986) opinion reached for the cost of mailing notices.

Q: Does the county have authority to use an online auction at all?
A: Yes. The AG cites § 27-41-59(2), which lets a tax collector "enter into an agreement with an online provider to conduct tax sales using online bidding and sale," provided the board of supervisors ratifies the agreement.

Q: Can I redeem just part of the land?
A: Section 27-45-3 allows the owner to redeem "any part of it, where it is separable by legal subdivisions of not less than forty (40) acres," or any undivided interest in it.

Background and statutory framework

Mississippi delinquent tax sales work in two stages: the sale itself (Title 27, Chapter 41) and the redemption period that follows (Title 27, Chapter 45).

Section 27-41-59(2) authorizes a tax collector "to enter into an agreement with an online provider to conduct tax sales using online bidding and sale" so long as the agreement is ratified by the county board of supervisors. The AG also cites its Morgan (2016) opinion on that authority.

Section 27-45-3 is the redemption statute. It allows the property owner (or someone interested in the property, with the owner's consent) to redeem within two years of the sale by paying the redemption amount, including "all costs incident to the sale." The AG reads that phrase as "unambiguous" and broad enough to cover the cost the county incurred to conduct the sale, drawing on McGee (1986), which treated the cost of mailing notices as part of the incidental cost of the sale.

The AG's reasoning relies on plain-meaning statutory construction. City of Tchula v. Mississippi Public Service Commission, 187 So. 3d 597, 600 (Miss. 2016), is cited for the standard rule: when statutory words are clear and concise, courts apply their usual and ordinary meaning. The 1986 McGee opinion is the prior application of that rule to "costs incident to the sale."

Citations and references

Statutes:

• Miss. Code Ann. § 27-41-59(2) (online tax sale authority)
• Miss. Code Ann. § 27-45-3 (redemption from tax sale)

Case:

• City of Tchula v. Mississippi Public Service Commission, 187 So. 3d 597, 600 (Miss. 2016), plain-meaning rule of statutory construction

Prior AG opinions referenced:

• MS AG Op., Morgan (Aug. 19, 2016)
• MS AG Op., McGee (Apr. 2, 1986), mailing of notices is part of the incidental cost of the sale

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/03/N.Anderson-March-13-2023-Auction-Expense-for-Tax-Sale.pdf

Original opinion text

March 13, 2023

The Honorable Nakia Stewart Anderson
Chancery Court Clerk, Wilkinson County
Post Office Box 516
Woodville, Mississippi 39669

Re: Auction Expense for Tax Sale

Dear Ms. Anderson:

The Office of the Attorney General has received your request for an official opinion.

Background

According to your request, Wilkinson County ("County") has contracted with an auction vendor to conduct its April 2023 sale of land on which taxes are due. The auction vendor conducts the sale on behalf of the County at a cost of $20 per parcel sold. These costs have historically been absorbed by the County.

Question Presented

May a $20 auction expense be assessed against persons entitled to redeem land sold for taxes as a "cost[] incident to the sale" as prescribed by Mississippi Code Annotated Section 27-45-3?

Brief Response

Yes. The $20 auction expense described in your request may be assessed against persons entitled to redeem land sold for taxes as a "cost[] incident to the sale" as prescribed by Section 27-45-3.

Applicable Law and Discussion

Section 27-41-59(2) allows a tax collector "to enter into an agreement with an online provider to conduct tax sales using online bidding and sale" so long as the agreement is ratified by the county board of supervisors. See also MS AG Op., Morgan at *1–2 (Aug. 19, 2016).

Section 27-45-3, referenced in your opinion request, outlines the requirements for persons entitled to redeem land sold for taxes. It provides, in part:

The owner, or any persons for him with his consent, or any person interested in the land sold for taxes, may redeem the same, or any part of it, where it is separable by legal subdivisions of not less than forty (40) acres, or any undivided interest in it, at any time within two (2) years after the day of sale, by paying to the chancery clerk, regardless of the amount of the purchaser's bid at the tax sale, the amount of all taxes for which the land was sold, with all costs incident to the sale, and five percent (5%) damages on the amount of taxes for which the land was sold, and interest on all such taxes and costs at the rate of one and one-half percent (1- ½ %) per month, or any fractional part thereof, from the date of such sale, and all costs that have accrued on the land since the sale, with interest thereon from the date such costs shall have accrued, at the rate of one and one-half percent (1- ½ %) per month, or any fractional part thereof . . . .

(Emphasis added).

The phrase "costs incident to the sale" as used in Section 27-45-3 is unambiguous, and the auction expense described in your request would meet this criterion. See City of Tchula v. Miss. Pub. Serv. Comm'n, 187 So. 3d 597, 600 (Miss. 2016) ("No citation is needed for the principle that, where the words are clear and concise, courts and agencies are bound to apply their usual and ordinary meaning. Only if the words are unclear do we refer to other rules of statutory interpretation."); see also MS AG Op., McGee at *1 (Apr. 2, 1986) (concluding the expense of "mailing of notices is part of the incidental cost of the sale and may be assessed as Section 27-45-3 provides").

Accordingly, it is the opinion of this office that an auction expense such as the one described in your request may be assessed against persons entitled to redeem land sold for taxes as a "cost[] incident to the sale" as prescribed in Section 27-45-3.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General