Amicus Curiae Brief — Michael Pung, Personal Representative of the Estate of Timothy Scott Pung, Petitioner v. Isabella County, Michigan

No. 25-95

In the

Supreme Court of the United States

MICHAEL PUNG, PERSONAL REPRESENTATIVE

FOR THE ESTATE OF TIMOTHY SCOTT PUNG,

Petitioner,

v.

ISABELLA COUNTY, MICHIGAN,

Respondent.

On Writ of Certiorari to the

United States Court of A ppeals for the Sixth Circuit

BRIEF OF AMICUS CURIAE

NATIONAL TAX LIEN ASSOCIATION

IN SUPPORT OF RESPONDENT

A ndrew K azin

Counsel of Record

Bruce Bronster

Leonid Krechmer

Bronster LLP

156 West 56th Street,

Suite 703

New York, NY 10019

(347) 246-4769

akazin@bronsterllp.com

Counsel for Amicus Curiae

131745

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTERESTS OF AMICUS CURIAE . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

POINT I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

T H E AUC T ION PU R C H A S E PR IC E

IS J UST COM PENS ATION FOR

T H E TA K EN PROPERT Y BECAUSE

TH AT PRICE IS W H AT A W ILLING

BU YER, IN A SOPHISTICATED A ND

MATURE MARKET, PAID FOR THAT

ENCUMBERED PROPERT Y AS SOLD

AT THE TIME OF AUCTION . . . . . . . . . . . . . . . . . . 5

POINT II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

THE GPTA IS REMEDIAL BECAUSE

I T I S DE S IGN ED T O GEN ER A T E

REVENUE REQUIRED FOR CRITICAL

GOVERNMENT SERVICES . . . . . . . . . . . . . . . . . 14

ii

Table of Contents

Page

POINT III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

PROPERT Y TA X FOR ECLO SU R E

AUCTIONS ARE ESSENTIAL TO THE

TA X COLLECTION PROCESS TH AT

FUNDS COMMUNITY SERVICES AND

RESTORES DISTRESSED PROPERTIES . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

iii

TABLE OF CITED AUTHORITIES

Page

Cases

1717 Realty Assocs. LLC v. Borough of Fair Lawn,

2009 WL 1287245 (NJ 2009) . . . . . . . . . . . . . . . . . . . 15

Almota Farmers Elevator & Warehouse Co. v. U.S.,

409 U.S. 470 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Anderson v. U.S.,

179 F.2d 281 (CA5 1950) . . . . . . . . . . . . . . . . . . . . . . . 12

Aristocrat Leisure Limited v.

Deutsche Bank Trust Co. Americas,

618 F.Supp.2d 280 (SDNY 2009) . . . . . . . . . . . . . . . . 12

Armstrong v. U.S.,

364 U.S. 40 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Aroneck v. Atkin,

90 App.Div.2d 966 (1982) . . . . . . . . . . . . . . . . . . . . . . 12

Austin v. United States,

509 U.S. 602 (1993) . . . . . . . . . . . . . . . . . . . . . . 3, 15-18

Bennis v. Michigan,

516 U.S. 442 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

BFP v. Resolution Trust Corp.,

511 U.S. 531 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

iv

Cited Authorities

Page

Boston Chamber of Commerce v. City of Boston,

217 U.S. 189 (1910) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Boyce v. Soundview Tech. Group, Inc.,

464 F.3d 376 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . 12

Brown v. Legal Found. of Wash.,

123 S. Ct. 1406 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Bull v. United States,

295 U.S. 247 (1935) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

City of NY v. Sage,

239 U.S. 57 (1915) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Cole v. Macklowe,

64 App.Div.3d 480 (1st Dep’t 2009) . . . . . . . . . . . . . . 12

Compañía Gen. de Tabacos de Filipinas v.

Collector of Internal Revenue,

275 U.S. 87 (1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Delaware State College v. Ricks,

449 U.S. 250 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Freed v. Thomas,

81 F.4th 655 (CA6 2023) . . . . . . . . . . . . . . . . . . . 5, 6, 19

Gates v. Collier,

616 F.2d 1268 (CA5 1980) . . . . . . . . . . . . . . . . . . . . . . . 7

v

Cited Authorities

Page

Great Falls Mfg. Co. v. United States,

16 Ct. Cl. 160 (1880) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Hall v. Meisner,

51 F.4th 185 (CA6 2022) . . . . . . . . . . . . . . . . . . . . . . . . 6

Helvering v. Mitchell,

5303 U.S. 391 (1938) . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Hermanowski v. Acton Corp.,

729 F.2d 921 (CA2 1984) . . . . . . . . . . . . . . . . . . . . . . . 12

I & O Pub. Co, Inc. v. Commissioner,

131 F.3d 1314 (CA9 1997) . . . . . . . . . . . . . . . . . . . . . . 15

In Re Susco,

673 B.R. 120 (Bankr. Ct. VT 2025) . . . . . . . . . . . . . . . 7

Kaminsky v. Herrick, Feinstein LLP,

59 App.Div.3d 1 (2008) . . . . . . . . . . . . . . . . . . . . . . . . 13

Kimball Laundry Co. v. United States,

338 U.S. 1 (1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Kovens v. Paul,

2009 WL 562280 (SDNY 2009) . . . . . . . . . . . . . . . . . 13

Licari v. Commissioner,

946 F.2d 690 (CA9 1991) . . . . . . . . . . . . . . . . . . . . . . . 14

vi

Cited Authorities

Page

Louis v. Commissioner,

170 F.3d 1232 (CA9 1999) . . . . . . . . . . . . . . . . . . . . . . 15

Maxim Group LLC v. Life Partners Holds., Inc.,

2010 WL 571819 (SDNY 2010) . . . . . . . . . . . . . . . . . . 12

McGovern v. City of NY,

229 U.S. 363 (1913) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

McNichols v. Commissioner,

13 F.3d 432 (CA1 1993) . . . . . . . . . . . . . . . . . . . . . . . . 15

Merrill Lynch & Co., Inc. v. Allegheny Energy, Inc.,

500 F.3d 171 (CA2 2007) . . . . . . . . . . . . . . . . . . . . . . . 11

Northwest LA Fish & Game Preserve Comm.,

446 F.3d 1285 (Fed. Cir. 2006) . . . . . . . . . . . . . . . . . . 13

Oscar Gruss & Son, Inc. v. Hollander,

337 F.3d 186 (CA2 2003) . . . . . . . . . . . . . . . . . . . . . . . 12

Parker v. Hoppe,

257 N.Y. 333 (1931) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Pung v. Kopke,

2025 WL 318222 (CA6 2025) . . . . . . . . . . . . . . . 5, 6, 14

Rafaeli, LLC v. Oakland Co.,

505 Mich. 429, 952 N.W.2d 434 (2020) . . . . . . . . . . . 13

vii

Cited Authorities

Page

Roberts v. City of NY,

295 U.S. 264 (1935) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Seaboard Air Line Ry. Co. v. U.S.,

261 U.S. 299 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Sharma v. Skaarup Ship Mgmt. Corp.,

916 F.2d 820 (CA2 1990) . . . . . . . . . . . . . . . . . . . . 11, 12

Simon v. Electrospace Corp.,

28 N.Y.2d 136 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Stockwell v. United States,

80 U.S. 531 (1871) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Tennessee Valley Auth. v. Powelson,

319 U.S. 266 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Thompson v. Commissioner,

148 T.C. 59 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Tyler v. Hennepin Cnty.,

598 U.S. 631 (2023) (No. 22-166) . . . . . . . . . . . . . . . 5-7

United States v. 564.54 Acres of Land,

441 U.S. 506 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Chandler-Dunbar Water Power Co.,

229 U.S. 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

viii

Cited Authorities

Page

United States v. John J. Felin & Co., Inc.,

334 U.S. 624 (1948) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 11

United States v. Toch,

33 F.4th 1 (CA1 2022) . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Ursery,

518 U.S. 267 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Van Gernert v. Boeing Co.,

553 F.2d 812 (CA2 1977) . . . . . . . . . . . . . . . . . . . . . . . 12

Waxman v. Envipco Pickup & Processing Servs., Inc.,

2006 WL 788964 (SDNY 2006) . . . . . . . . . . . . . . . . . . .

Constitutional Provisions

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

U.S. Const. amend. VIII . . . . . . . . . . . . . . . . . . . . . . . . . 14

Statutes

21 U.S.C. § 881(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

General Property Tax Act . . . . . . . . . . . . . . . . . . . . . .5, 14

Drug Abuse Prevention and Control Act . . . . . . . . . 15-17

ix

Cited Authorities

Page

Other Authorities

Christopher J. Allred,

Breaking the Cycle of Abandonment: Using a

Tax Enforcement Tool to Return Distressed

Properties to Sound Private Ownership

(Pioneer Inst. for Pub. Policy Rsch. 2000) . . . . . . . . . 4

Frank P. Braconi,

Helping the Poor Landlords, and Vice-Versa

(Daily News, Oct. 24, 1994, p. A42) . . . . . . . . . . . . . . . 4

Double Jeopardy Clause . . . . . . . . . . . . . . . . . . . . . . . . . 16

Excessive Fines Clause . . . . . . . . . . . . . . . . . . 3, 14, 15, 18

New York City Keeps Tring to Evict Its DrugDealer Tenants (New York Times, July 10, 1987,

Section A, p. 34, column 4) . . . . . . . . . . . . . . . . . . . . . . 4

S. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

S. Rep. No. 98-225 (1983) (U.S. Code Cong. Admin.

News 1984, pp. 3182) . . . . . . . . . . . . . . . . . . . . . . . . . . 17

P. Salkin,

Land Use Planning and Dev. Reg. Law § 16:10

Fair Market Value (3rd ed. 2025) . . . . . . . . . . . . . . . 11

x

Cited Authorities

Page

Salkin, Patricia,

Land Use Planning and Dev. Reg. Law § 16:15 . . . . 9

Takings Clause . . . . . . . . . . . . . . . . . . . . 2, 3, 6, 7, 9, 11, 18

1

INTERESTS OF AMICUS CURIAE1

The National Tax Lien Association (“NTLA”)

respectfully submits this brief as amicus curiae pursuant

to Supreme Court Rule 37 and urges the Court to

affirm the judgment of the Sixth Circuit. NTLA is the

leading national organization for the tax lien and tax

deed industry and advances the legislative, regulatory,

and educational interests of that industry across the

United States. Since its formation in 1997 as a nonprofit

business league, NTLA has brought together public

officials and private stakeholders engaged in all facets of

real property tax enforcement, including tax collectors,

asset managers, government finance officers, community

redevelopment professionals, portfolio servicers, and real

estate attorneys.

NTLA consists of 316 members in 35 states and

thousands of local jurisdictions, including tax lien

bidders, tax collectors, lenders, and portfolio servicers.

All depend on clear, lawful, and predictable mechanisms

for property tax collection. NTLA maintains rigorous

ethical standards, promotes strict adherence to federal

and state laws, and provides authoritative education and

professional development for industry participants and

government officials. NTLA actively monitors legislation,

advises policymakers, and participates as amicus curiae

1. Pursuant to Rule 37.6, the undersigned certifies that: (A)

there is no party or counsel for a party who authored the amicus

brief in whole or in part; (B) there is no party or counsel for a party

who contributed money that was intended to fund preparing or

submitting the brief; and (C) no person or entity contributed money

that was intended to fund preparing or submitting the brief, other

than amici, their members, and counsel.

2

in courts nationwide on property tax enforcement and

foreclosure matters. State legislators, regulators, and

tax collection officials throughout the country regularly

consult NTLA regarding laws and policies governing real

property tax sales. Its members offer practical expertise

regarding every phase of the tax collection and foreclosure

process.

This case will directly affect the NTLA. Changes to

the collection of delinquent property taxes nationwide

will destabilize the foreclosure system and threaten the

fiscal health of local taxing authorities, leading to safety

and economic risks for the communities they serve. For

these reasons, NTLA has a substantial and legitimate

interest in this case.

SUMMARY OF ARGUMENT

Michael Pung (“Pung”), having failed to pay his real

property taxes, claims that increased value to his formerly

owned property, attributable to others’ expense and

risk assumption, is justly due to him. Pung claims that

the law-abiding public, which funds the County’s coffers

by paying taxes, should pay him the resale profit, even

though he (1) did not own the property at the time of the

sale, (2) depreciated its value by incurring a tax lien, and

(3) failed to comply with the applicable tax law like other

citizens did.

To justify his untenable position, Pung argues

the County took equity when it sold the property at

auction. Pung is contradicted by more than one hundred

years of “Takings Clause” and compensatory damages

jurisprudence. Pung, due to his own wrongful failure to

3

pay taxes, was not the owner when the County sold the

property. He is therefore not entitled to any increased

value from the date he forfeited ownership of it and

the resale date. Neither the tax lien system nor the

Constitution are mechanisms to manipulate for personal

profit at other citizens’ expense. The Constitution does

not entitle a former owner to additional value created

later by the government or tax-paying citizens who

assume risk and invest capital to clear title and improve

the property. Those later transactions reflect a different

asset, at a different time, in a different market. See United

States v. John J. Felin & Co., Inc., 334 U.S. 624, 640-41

(1948) (reducing amount of compensation because “just

compensation [under the Takings Clause] is a practical

conception, a matter of fact and not of fiction”).

A property sold at a foreclosure auction often has

tainted title, is offered to bidders as is, without an

inspection, and subject to various impairments including

liens, violations and other clouds on title. The risks are

many. That property, resold later, has good title, title

insurance, passed inspections and has been restored

to a condition that an arms’ length buyer expects from

ready-to-sell properties. These two types of properties

are incomparable. Equating them is fiction.

Pung’s attempt to bring tax law under the Excessive

Fines clause umbrella is another attempt to pervert

the Bill of Rights for profit. There is no legal authority

that suggests morphing this Court’s civil forfeiture

jurisprudence in Austin v. United States, 509 U.S. 602

(1993), onto tax lien law. Tax law, and all citizens’ payments

associated with it, are remedial, not punitive, because they

replenish the government’s revenue.

4

History indicates that efficient tax enforcement

systems are needed precisely because properties fall into

disrepair. See Christopher J. Allred, Breaking the Cycle of

Abandonment: Using a Tax Enforcement Tool to Return

Distressed Properties to Sound Private Ownership

(Pioneer Inst. for Pub. Policy Rsch. 2000). For example,

from the 1970-1990’s, New York City lacked an effective

mechanism for selling tax-defaulted properties to third

parties. The City became an involuntary slumlord to tens

of thousands of blighted buildings, bearing enormous

maintenance costs. The City managed this deteriorated

stock at an annual cost of $300 million in operating and

capital expenses, draining more than two-thirds of the

federal community development funds. See Frank P.

Braconi, Helping the Poor Landlords, and Vice-Versa

(Daily News, Oct. 24, 1994, p. A42). The New York Times

noted that such properties were often “dilapidated,

deteriorated and neglected” and taken over by drug

dealers. See New York City Keeps Tring to Evict Its

Drug-Dealer Tenants (New York Times, July 10, 1987,

Section A, p. 34, column 4). Once the City started selling

tax liens in 1996, many owners brought their accounts

current upon receiving notice of the annual tax lien sale.

Now, most owners cure tax delinquencies quickly and most

defaulted properties avoid foreclosure.

During delinquency and foreclosure, owners often have

little ability or incentive to invest in basic maintenance.

Structures deteriorate, hazardous conditions arise, and

blight runs rampant. When owners fail to pay their

property taxes, they are often in financial distress, and

that distress is not confined to property taxes. Owners stop

maintaining the property, the yard, the roof and siding,

and they ignore interior repairs. This results in rapidly

5

compounding municipal liens, fines, and violations of local

building and sanitation codes. Those liens and violations

are senior to tax liens and must be paid by foreclosure

investors. The longer these conditions continue, the

more expensive and difficult rehabilitation becomes, and

the greater the risk that surrounding property values

decrease, with economic harm to the community growing

daily.

ARGUMENT

Point I

The auction purchase price is just compensation

for the taken property because that price is

what a willing buyer, in a sophisticated and

mature market, paid for that encumbered

property as sold at the time of auction

The Sixth Circuit properly determined that Pung was

not entitled to the amount paid for his former property

after he forfeited his ownership of it by failing to pay

his taxes under Michigan’s General Property Tax Act

(“GPTA”). See Pung v. Kopke, 2025 WL 318222 (CA6

2025). The Sixth Circuit relied on its prior holding in

Freed v. Thomas, which correctly held that “neither this

court nor the Supreme Court has ever held that a plaintiff

whose property is foreclosed and sold at a public auction

for failure to pay taxes is entitled to recoup the fair market

value of the property.” 81 F.4th 655, 658-59 (CA6 2023).

Following this Court’s precedent in Tyler v. Hennepin

Cnty., 598 U.S. 631 (2023), the Sixth Circuit rejected

Pung’s claim to anything more than the foreclosure

6

surplus. The Sixth Circuit adopted petitioner’s counsel’s

admission in Tyler that payment of the surplus satisfied

the Takings Clause. 2 It correctly determined that “the

best evidence of a foreclosed property’s value is the

property’s sales price, not what it was worth before the

foreclosure.” Pung v. Kopke, 2025 WL 318222 (CA6 2025);

Great Falls Mfg. Co. v. United States, 16 Ct. Cl. 160 (1880)

(owner entitled to what property would sell for at the time

of taking, “not what it might bring or perhaps ought to

produce at some future period”).

As the Sixth Circuit explained in Freed, valuing a

property above the price paid at a public tax foreclosure

sale “would run contrary to the general principle that just

compensation is measured by the value of the property

taken . . . [and take] money away from the public and

allow delinquent taxpayers to benefit from their tax

delinquency.” Freed, at 658-59; see Hall v. Meisner, 51

F.4th 185, 194 (CA6 2022) (after a public foreclosure sale,

the former owner is “entitled to any surplus proceeds from

the sale, which represented the value of the equitable title

thus extinguished”).

Pung claims the County took an additional $118,000 in

equity from him because the foreclosure auction’s winner

resold the property for $195,000. Under Pung’s theory, an

owner could fail to pay his taxes, wait for others to clear

2. When petitioner’s counsel in Tyler was asked how courts

would know the value of the property taken, counsel responded,

“[T]rial courts . . . could consider the auction price as probably the

best proxy for what the property was worth.” Oral Arg. Tr. at 6, Tyler

v. Hennepin Cnty., 598 U.S. 631 (2023) (No. 22-166). See also Oral

Arg. Tr. at 6, where petitioner’s counsel acknowledged that petitioner

would be “satisfied” with the surplus proceeds from the auction.

7

title and restore and sell the property, and then demand

the increased value attributable to someone else’s dime.

Pung wants to use the Takings Clause to convert his

failure to pay lawful taxes into an indefinite call option.

He wants the risk-free opportunity to obtain the value in

a property, that he no longer owns, two or three resales

later, regardless of zoning changes, or myriad factors

that increase property value. And, according to Pung, he

should have unfettered sole discretion to choose which

resale value applies. The foreclosing government would

never know its exposure on a foreclosure because the

former owner could assert a purported lost equity claim

at any time. Pung is not entitled to that economic benefit

while the government, as Justice Sotomayor noted, is

“forced into being the agent of the seller . . . and tak[ing] all

the risk and all of the responsibility for whatever happens

to that property.” Oral Arg. Tr. at 40, Tyler v. Hennepin

Cnty., 598 U.S. 631 (2023) (No. 22-166).

There is nothing fair or just about rewarding a

delinquent owner a call option for subsequent increased

value created by someone else’s investment and assumption

of risk and his own deliberate failure to pay taxes. See

Gates v. Collier, 616 F.2d 1268, 1276 (CA5 1980). Those

later profits belong to those who bore the risk of the

investment. See Almota Farmers Elevator & Warehouse

Co. v. United States, 409 U.S. 470, 474 (1973). Requiring

the County to pay them to Pung would be unprecedented,

costly, and unfair to lienholders, municipalities and the

citizens they serve. See In Re Susco, 673 B.R. 120 (Bankr.

Ct. VT 2025) (no authority that delinquent taxpayer may

recoup the fair market value of property from a “forced

tax sale”).

8

This Court resolved this issue more than one hundred

years ago. In Boston Chamber of Commerce v. City of

Boston, 217 U.S. 189 (1910), the Court addressed the proper

measure of damages when government takes land. The

Court held just compensation is measured by actual loss

to the owner, not future increased value, to a subsequent

buyer, after that buyer purchases unencumbered land or

makes that land more valuable. Id., at 193.

The Court considered whether “when a man’s land is

taken” [is he entitled] “to recover more than the value of

it as it stood at the time.” Id., at 194. The former owner

argued it “had a right, as a matter of law, under the

Constitution, after the taking was complete and all rights

were fixed, to obtain the connivance or concurrence of

the dominant owner, and by means of that to enlarge a

recovery that otherwise be limited to a relatively small

sum.” Id. This Court rejected that argument, holding that

just compensation does not include that enlargement, but

merely payment of the value at the time of the taking.

As Justice Holmes explained:

“The Constitution does not require a disregard

of the mode of ownership, of the state of title. It

does not require a parcel of land to be valued as

an unencumbered whole when it is not held as an

unencumbered whole. It merely requires that

an owner of property taken should be paid for

what is taken from him. It deals with persons,

not tracts of land. And the question is, What has

the owner lost? not What has the taker gained?”

Id., at 195.

9

Justice Holmes noted that the City could not “be made

to pay for a loss of theoretical creation, suffered by no one.”

Id., at 194; see Tennessee Valley Auth. v. Powelson, 319 U.S.

266, 281-83 (1943) (Takings Clause requires compensation

solely for land actually taken, not opportunity gained);

City of NY v. Sage, 239 U.S. 57, 62 (1915) (landowner

that lost property in taking not entitled to increased

value caused by city’s construction); McGovern v. City of

NY, 229 U.S. 363, 372 (1913) (owner that lost property in

taking due to creation of Ashokan reservoir not entitled to

increased value attributable to reservoir); United States

v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 69

(power company not entitled to value of river rapids and

falls after government taking of river); United States v.

564.54 Acres of Land, 441 U.S. 506, 511 (1979) (market

value does not include the increased value in land use);

see also Brown v. Legal Found. of Wash., 123 S. Ct. 1406

(2003) (no compensation required unless there is actual

pecuniary loss); Salkin, Patricia, Land Use Planning

and Dev. Reg. Law § 16:15 Noncompensable Damages

(“just compensation does not generally require payment

for destruction of a business, lost profits, or loss of good

will . . . [because] these elements also are considered

speculative and personal to the landowner rather than

relating to the land”).

This Court reaffirmed this principle twenty-five years

later in Roberts v. City of NY, 295 U.S. 264, 279-80 (1935).

In Roberts, Justice Cardozo explained just compensation

required paying former easement owners the easements’

value in or about 1882, when the City seized them, not

their value decades later. This Court rejected the owners’

argument that the owners were entitled to the $3 million

10

increased easement value attributable to the skyrocketing

value of land near Grand Central Station. Id., at 281.

According to this Court, “for purposes of the

compensation due under the Fifth Amendment, . . . [t]he

value of property springs from subjective needs and

attitudes; its value to the owner may therefore differ

widely from its value to the taker.” “Gain to the taker

. . . maybe wholly unrelated to the deprivation imposed

upon the owner, [and must be] rejected as a measure of

public obligation to requite for that deprivation.” Kimball

Laundry Co. v. United States, 338 U.S. 1, 5 (1949).

The best value of the parcel taken from the owner,

therefore, is the amount paid at auction, before an infinite

number of events may increase or decrease what a buyer

will pay for it. That purchase price is the true “fair

market value” for that encumbered property under the

circumstances. All potential purchasers are notified of

the auction, aware of the same risks, and competitively

bid on the property to determine its true worth. They

hedge, without inspecting the property, and consider the

risk that an unknown amount must be invested to clear

title, rehabilitate the premises, or evict tenants.

Those realities are part of the fair market, the

market in which the County must auction the property

because of the former owner’s repeated failure to pay

taxes. Traditional fair market value “presumes market

conditions that, . . . do not obtain in the context of a

forced sale . . . [and] property that must be sold within

those strictures is simply worth less. No one would pay as

much to own such property as he would pay to own real

estate that could be sold at leisure and pursuant to normal

11

marketing techniques.” BFP v. Resolution Trust Corp.,

511 U.S. 531, 537-529 (1994); United States v. John J. Felin

& Co., Inc., 334 U.S. 624, 640-41 (1948) (rejecting claim for

open market value of asset seized under Takings Clause

because actual market was depressed because of asset’s

nature); see P. Salkin, Land Use Planning and Dev. Reg.

Law § 16:10 Fair Market Value (3rd ed. 2025).

Any other procedure would give the former owner,

who failed to pay taxes, an infinite option for unearned

dollars at abiding taxpayers’ expense. Each time the

property appreciated and sold for a higher value, the

former owner could assert a new Takings Clause claim,

creating infinite exposure to the government and, in turn,

the tax-paying public.

Uncertainties about the future may cause a parcel

to be under or overvalued at any time. See Sharma v.

Skaarup Ship Mgmt. Corp., 916 F.2d 820, 826 (CA2 1990).

At the auction, however, investors have opportunity to

hedge according to their judgment about the future

stream of income from that parcel. If some later time

governed, compensation amounts would have to be reduced

if the value decreased after the auction or increased when

value increased. Courts refuse to adopt this self-serving

and open-ended theory of compensatory damages. See

Merrill Lynch & Co., Inc. v. Allegheny Energy, Inc., 500

F.3d 171 (CA2 2007) (compensatory damages measured by

value at time of loss, because subsequent events, viewed

in hindsight, may neither offset nor enhance damages).

Id., at 185.

This proposed “wait and see” approach would turn the

Takings Clause into a weapon, disrupt all predictability

12

in the real estate market, and allow a wrongdoer to profit

at the expense of the tax abiding public. Sharma, at 826.

That is why compensation should be assessed based on

the asset’s value on the date of loss. See Sharma, at 826.;

Boyce v. Soundview Tech. Group, Inc., 464 F.3d 376, 38485 (CA2 Cir. 2006) (value to be determined as of the date

of loss); Oscar Gruss & Son, Inc. v. Hollander, 337 F.3d

186 (CA2 2003) (compensatory damages measured from

value on date of loss - subsequent increase irrelevant);

Hermanowski v. Acton Corp., 729 F.2d 921, 922 (CA2

1984) (same); Van Gernert v. Boeing Co., 553 F.2d 812

(CA2 1977) (same); Simon v. Electrospace Corp., supra, 28

N.Y.2d 136, 145 (1971) (subsequent increase in share value

legally irrelevant to compute compensatory damages);

Aroneck v. Atkin, 90 App.Div.2d 966 (1982) (same for

stock). 3

Compensation for loss of real estate is measured

by value of the real estate on the date of loss, not on a

subsequent date. See Delaware State College v. Ricks,

449 U.S. 250, 258 (1980) (proper focus . . . “is upon the

time of the [defendant’s] acts, not [when] the consequences

of the acts become most painful”); Seaboard Air Line

Ry. Co. v. United States, 261 U.S. 299, 305 (1923) (“duty

of the government to make just compensation as of the

time when the owners [are] deprived of their property”);

3. See also Maxim Group LLC v. Life Partners Holds., Inc.,

2010 WL 571819, *4-6 (SDNY 2010) (same for corporate shares);

Aristocrat Leisure Limited v. Deutsche Bank Trust Co. Americas,

618 F.Supp.2d 280, 293-94 (SDNY 2009) (same for bonds); Waxman

v. Envipco Pickup & Processing Servs., Inc., 2006 WL 788964, *2-3

(SDNY 2006) (same for depository receipts) Parker v. Hoppe, 257

N.Y. 333, 338-41 (1931) (same for rubles); Cole v. Macklowe, 64 App.

Div.3d 480-81 (1st Dep’t 2009) (same for apartment).

13

Northwest LA Fish & Game Preserve Comm., 446 F.3d

1285, 1291 (Fed. Cir. 2006) (“a claim does not accrue until

the claimant suffers damage”); Anderson v. U.S., 179

F.2d 281 (CA5 1950) (“market value of property taken

determined as of the date possession acquired”).

“[C]hanges in value after breach are not relevant to

the calculation of damages.” Kovens v. Paul, 2009 WL

562280, *4-5 (SDNY 2009). Evidence of the post-breach

market value is “not germane.” Kaminsky v. Herrick,

Feinstein LLP, 59 App.Div.3d 1, 11-12 (2008).

Lacking any federal precedent, Pung attempts to

rely on Rafaeli, LLC v. Oakland Co., 505 Mich. 429, 952

N.W.2d 434 (2020). But Rafaeli merely ensures that former

owners receive the surplus proceeds realized at the tax

sale; nothing more. No language in Rafaeli supports any

argument that the former owner is entitled to future profits

yielded by subsequent investment or market fluctuations.

Rafaeli rejected the argument that former owners should

be awarded an amount that would put them in the same

position as if their properties were never taken. Rafaeli

stressed that the market value compensation measure

would contradict the principle that “just compensation”

should be measured by the value of the property taken

and might unfairly enrich tax delinquents. Rafaeli, 952

N.W.2d, at 465-466.

Rafaeli does not authorize a former owner to seek any

additional “value” or “equity” beyond what the auctioneer

obtained at the tax sale. To the contrary, Justice Viviano,

in his concurrence, warned that “taxpayers seeking some

speculative value beyond the surplus realized in the tax

sale might often lack meritorious claims.” Id. Rafaeli—

14

both the majority and concurrence, undercut Pung’s

position.

Accordingly, this Court should affirm the Sixth

Circuit.

Point II

The GPTA is remedial because it is

designed to generate revenue required

for critical government services

The Sixth Circuit correctly held that the GPTA

exceeds the Eighth Amendment’s scope because the

GPTA is remedial, not punitive, and ensures that citizens

pay lawful taxes. See Pung v. Kopke, 2025 WL 318222

(CA6 2025). By encouraging payment of lawful taxes, the

government obtains funds to provide critical community

services. Id.

This intent to generate revenue is not punitive under

the Excessive Fines Clause. See Bennis v. Michigan, 516

U.S. 442, 451 (1996) (Excessive Fines Clause inapplicable

because ensuring proper conduct was remedial, not

punitive); Licari v. Commissioner, 946 F.2d 690, 69495 (CA9 1991) (taxes are designed to enhance revenue,

reduce the budget deficit, and reimburse government);

Thompson v. Commissioner, 148 T.C. 59 (2017) (refusing

to apply Excessive Fines Clause because tax penalties are

remedial, not punitive).

T he Si x th’s Ci rcu it ’s r u l i ng a l ig ns w ith the

“insurmountable wall of cases” holding that a taxpayer’s

loss attributable to his own failure to pay lawful taxes is

15

remedial, not punitive. McNichols v. Commissioner, 13

F.3d 432, 434 (CA1 1993) (rejecting taxpayer’s attempt

to use Austin v. United States, 509 U.S. 602 (1993), as a

“springboard” to deem increased tax liability punitive);

see United States v. Toch, 33 F. 4th 1, 16-17 (CA1 2022)

(Excessive Fines Clause inapplicable to tax jurisprudence

because taxes are remedial rather than punitive); Louis v.

Commissioner, 170 F.3d 1232, 1235 (CA9 1999) (refusing

to extend Austin to tax case because taxes are remedial

not punitive); I & O Pub. Co, Inc. v. Commissioner, 131

F.3d 1314, 1316 (CA9 1997); 1717 Realty Assocs. LLC v.

Borough of Fair Lawn, 2009 WL 1287245 at *4 (NJ 2009)

(“courts have rejected efforts to expand the application

of Austin to cases in which a tax penalty or ‘addition to

tax’ was imposed”).

Property taxes fund the public schools our children

attend, the police and fire departments that protect

neighborhoods, our roads and infrastructure and critical

public health services. Because property “taxes are the

lifeblood of government, and their prompt and certain

availability an imperious need,” a procedure must be

maintained whereby payment is enforced and the debtor’s

property may be seized to satisfy the obligation. Bull v.

United States, 295 U.S. 247, 260-261 (1935).

The collection of delinquent taxes preserves the public

good. When property owners neglect to pay their property

taxes, the financial burden does not vanish; it shifts to

those who comply. Meanwhile, delinquent owners continue

to benefit from police and fire protection, sanitation, street

lighting, parks, and other local services.

In Austin, this Court held that civil forfeiture under

the Drug Abuse Prevention and Control Act (“DAPCA”)

16

was punitive, rather than remedial, where a cocaine dealer

pleaded guilty and was sentenced to seven years in prison.

Austin v. United States, 509 U.S. 602 (1993). Pung’s

attempt to equate tax lien foreclosure to the illegal cocaine

distribution landscape ignores that tax law, unlike cocainebased seizure law, is rooted in the citizens’ responsibility

to fund the government. As Justice Brandeis explained,

payments required due to the unlawful failure to pay

taxes are a “safeguard for the protection of revenue and

to reimburse the government. . . .” Helvering v. Mitchell,

5303 U.S. 391, 401 (1938); see Stockwell v. United States,

80 U.S. 531, 547 (1871) (increased payment remedial,

providing indemnity for loss to government).

Austin does not even hint that it should apply to any

actions other than DAPCA forfeitures. Austin, at 434.

There is no Supreme Court or Circuit level legal authority

that suggests applying Austin to tax lien foreclosure. To

the contrary, in United States v. Ursery, 518 U.S. 267

(1996), this Court limited Austin, holding that in rem

foreclosure was not “so punitive in form and effect” as to

invoke the Double Jeopardy clause. Id., at 290.

Pung’s attempt to use Austin as a springboard to

claim loss of equity that did not actually exist at the time

of taking is another attempt to exploit a Constitutional

safeguard for personal profit at the tax-paying public’s

expense. First, there was no actual increased equity

greater than the surplus when title transferred from

Pung to the County. Pung therefore did not incur any

actual fine. Equity was created, after title transferred,

by the subsequent owners’ dime. The notion that Pung

was “fined” is fantasy.

17

Second, DAPCA’s legislative intent makes clear that

DAPCA is punitive. Section 881 was passed because

traditional criminal sanctions were “inadequate to deter

or punish.” S. Rep. No. 98-225, p.191 (1983) (U.S. Code

Cong. Admin. News 1984, pp. 3182, 3374).

Third, forfeiture under DAPCA, unlike under tax law,

has an innocent owner defense, indicating that culpability

is key for forfeiture. All law-abiding citizens must pay

taxes, culpable or not.

Fourth, in Austin, the government seized tangible

property intertwined with illegal cocaine. DAPCA only

allows seizure of tangible items affiliated with criminal

conduct. It does not provide for seizure of equity or

increased value.

DAPCA’s procedural rules highlight DAPCA’s punitive

nature. They provide that “all right, title and interest…

shall vest in the United States upon commission of the

act giving rise to the forfeiture.” 21 U.S.C. § 881(h). As

such, the government retroactively acquires title and the

owner is not given multiple notices before a taking occurs.

When DAPCA requires notice, the government can only

extend the notice period when notice will “endanger the

life or physical safety of the individual,” cause “flight

from prosecution,” result in “destruction or tampering

with evidence,” or “intimidation of potential witnesses”

or “otherwise seriously jeopardize[e] an investigation”

or “unduly delay trial.” Id. Further, each seizing agency

must report to the House of Representatives and Senate

on how often the notice period is extended. Id.

18

In a tax lien foreclosure, there is no dispute as to

liability, the owner receives numerous notices before any

action begins, and has numerous chances to sell or redeem

the property.

Because this case arises from the civil application

of tax law, and tax laws are designed to remediate the

government with revenue, the Court should decline to

extend Austin to tax law jurisprudence and hold Austin

and the Excessive Fines Clause inapplicable.

Point III

Property tax foreclosure auctions are essential to

the tax collection process that funds community

services and restores distressed properties

The functioning of local communities and vitality of

their neighborhoods are dependent on tax collection. As

Justice Holmes observed, “Taxes are what we pay for

civilized society.” Compañía Gen. de Tabacos de Filipinas

v. Collector of Internal Revenue, 275 U.S. 87, 100 (1927)

(Holmes, J., dissenting). These obligations are not optional.

They are the price of participation in a community.

The Takings Clause was “designed to bar Government

from forcing some people alone to bear public burdens

which, in all fairness and justice, should be borne by the

public as a whole.” Armstrong v. United States, 364 U.S.

40, 49 (1960). Viewed through this lens, the necessity of

foreclosure is telling: the government must act to collect

the delinquency, and the property must be rehabilitated

and returned to a responsible owner to contribute to the

19

community. This protects the community’s revenue base,

prevents blight and ensures stability.

For these reasons, the fair and efficient enforcement

of property tax obligations must be recognized as

a cornerstone of a functioning tax system. Without

meaningful enforcement, property taxes become nothing

more than a voluntary contribution.

Across the country, properties that accumulate

delinquent property taxes often suffer from significant

neglect. Tax foreclosure auctions, whether through tax

deed or tax lien sales, ensure these distressed properties

are returned to productive use and unpaid taxes

recovered. These auctions are not conducted secretly.

They are advertised, regulated by statute, and open to

the public. In that setting, the value generated reflects

what a willing buyer is prepared to pay under the specific

circumstances, including the risks associated with it. That

is because the “best evidence of a foreclosed property’s

value is the property’s sales price, not what it was worth

before the foreclosure.” Freed v. Thomas, 81 F.4th 655,

659 (CA6 2023).

When investors purchase these distressed properties,

they do not simply acquire assets; they assume significant

financial and operational risk. Nor are such properties

suitable for typical homebuyers. Substantial rehabilitation

is often required to address structural decay, environmental

hazards, or years of deferred maintenance. Due to

these risks, the investor pool is specialized. Investors

bring capital, expertise, and patience to navigate the

uncertainties of these transactions.

20

Through their efforts, vacant and derelict structures

are rehabilitated and returned to habitable conditions

and active tax rolls. The housing supply is increased,

neighborhood property values are improved and quality of

life is enhanced. Once rehabilitated, these properties are

typically transferred to new owner-occupants or placed

into the rental market, where new occupants will maintain

them and contribute to the tax base. In this way, the tax

foreclosure process, coupled with private investment,

reintegrates distressed properties to the tax base and

community.

Thus, tax lien and deed investors are indispensable

participants in community revitalization. Their involvement

enables local governments to enforce tax laws, recover

lost revenue, and ensure that properties left to languish

in abandonment are returned to productive use. Without

this participation, the cycle of delinquency, neglect, and

blight would continue indefinitely, with the greatest harm

inflicted on the most vulnerable neighborhoods.

Pung’s proposed rule would require governments

to “preserve” a delinquent owner’s purported equity

by ensuring that properties sell for some estimated fair

market value, or by paying former owners the difference

between that estimate and the auction price. There is no

basis for this in the Court’s precedent, the history of tax

enforcement, or in hundreds of years of real property

jurisprudence.

Under Pung’s theory, every foreclosure would be a

liability. Unable to sell a property at an asserted market

value, the government would face infinite unlimited

liability. For every dollar of collected tax revenue,

21

the government would face thousands of dollars in

exposure.

P u ng suggest s t hat gover n ment s shou ld be

appraisers and real estate brokers, charged not only

with straightforward tax collection, but with the ongoing

management, repair, and marketing of properties in the

hope of improving auction outcomes. County treasurers

and tax collectors, who have neither the statutory mandate

nor the resources to manage portfolios of deteriorated

properties, would be burdened with unsellable assets

and forced into ownership and ongoing management.

Imagining a starker departure from the traditional role

of government in tax collection is difficult. The litigation

and uncertainty invited by this approach would be

insurmountable.

Ruling in Pung’s favor would require local tax assessors

to halt their established practices and reassess the very

feasibility of tax enforcement, throwing local budgets into

turmoil. Throughout the nation, municipalities and states

have their own jurisdiction-specific laws for assessing and

enforcing property taxes. Although some jurisdictions

assess taxes annually, others do so semi-annually.

Assessment criteria also vary by locality. Different types

of foreclosure processes are used across the United States

(e.g. tax deeds, tax liens, and various hybrid systems),

and redemption protocols and auction rules change from

state to state.

Requiring tax-foreclosed properties to sell at or

near market value assumes demand where none exists.

Again, many of these properties are severely distressed,

and bidders account for that reality. Imposing a pricing

22

mandate would reduce investor participation and drive

many out of the market. The assumption that these

properties command retail prices ignore their true

nature. They are not assets, but liabilities—often vacant,

deteriorated, and burdened by legal, structural, or

environmental complications. Investors who participate in

tax auctions do so with no guarantee of return. They take

on substantial risks, from unknown property conditions,

costly repairs, the need for code compliance, and, in some

cases, the legal complexities of evicting occupants. They

do this using their own capital, not public funds. Yet

the benefits of their involvement are undeniable. These

investors restore homes, stabilize neighborhoods, create

both rental and owner-occupied housing, and cure decay

that local governments lack the resources to address.

Once rehabilitated, the properties return to the tax rolls,

generate new revenue, improve surrounding property

values, and relieve municipalities of the burden of blight

enforcement, maintenance, and liability.

Pung’s proposal is a scheme seeking to modify the

financial aftermath of the existing framework by shifting

risk and cost to the public. That shift would destabilize

the carefully calibrated balance that allows the tax

enforcement system to function. It would undermine both

the viability of auctions and the community revitalization

that flows from private investment.

23

CONCLUSION

For the foregoing reasons, NTLA respectfully

requests that the Court affirm the Sixth Circuit’s

judgment.

Respectfully submitted,

A ndrew K azin

Counsel of Record

Bruce Bronster

Leonid Krechmer

Bronster LLP

156 West 56th Street,

Suite 703

New York, NY 10019

(347) 246-4769

akazin@bronsterllp.com

Counsel for Amicus Curiae

January 20, 2026