Attachment and Garnishment; Levy

  1. Law
  2. Georgia Code
  3. Revenue and Taxation
  4. State Administrative Organization, Administration, and Enforcement
  5. Administration
  6. Attachment and Garnishment; Levy

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  1. All taxes are a personal debt of the person required by this title to file the returns or to pay the taxes imposed by this title.
    1. The commissioner or his authorized representative may attach the property of a delinquent taxpayer on any ground provided by Code Section 18-3-1 or on the ground that the taxpayer is liquidating his property in an effort to avoid payment of the tax.
    2. The commissioner or the commissioner's authorized representative may use garnishment to collect any tax, fee, license, penalty, interest, or collection costs due the state which are imposed by this title or which the commissioner or the department is responsible for collecting under any other law. Garnishment may be issued by the commissioner or the commissioner's authorized representative against any person whom the commissioner believes to be indebted to the defendant or who has property, money, or effects in such person's hands belonging to the defendant. The summons of garnishment shall be served by the commissioner or the commissioner's authorized representative, shall be served at least 15 days before the sitting of the court to which the summons is made returnable, and shall be returned to either the superior court or the state court of the county in which the garnishee is served. The commissioner or the commissioner's authorized representative shall enter on the execution the names of the persons garnished and shall return the execution to the appropriate court. All subsequent proceedings shall be the same as provided by law regarding garnishments in other cases when judgment has been obtained or execution issued. In addition to any other methods of service, the summons of garnishment may be served by the commissioner or the commissioner's authorized representative to the garnishee by registered or certified mail or statutory overnight delivery, return receipt requested. Either the return receipt indicating receipt by the garnishee or the envelope bearing the official notification from the United States Postal Service of the garnishee's refusal to accept delivery of such registered or certified mail or statutory overnight delivery shall be filed with the clerk of the court in which the garnishment is pending. If statutory overnight delivery was accomplished through a commercial firm as provided under paragraph (1) of subsection (b) of Code Section 9-10-12, the return receipt indicating receipt by the garnishee or the envelope bearing the official notification of such commercial firm of the garnishee's refusal to accept delivery shall be filed with the clerk of the court in which garnishment is pending. If a garnishee refuses to accept service of a summons of garnishment by registered or certified mail or statutory overnight delivery, the summons of garnishment shall be served by the commissioner or the commissioner's authorized representative under any other method of lawful service and the garnishee shall be personally liable to the commissioner for a sum equal to the actual costs incurred to serve the summons of garnishment. This liability shall be paid upon notice and demand by the commissioner or the commissioner's delegate and shall be assessed and collected in the same manner as other taxes administered by the commissioner.
    1. In case of neglect or refusal by a taxpayer to pay any taxes, fees, licenses, penalties, interest, or collection costs due the state, the commissioner or his authorized representative may levy upon all property and rights to property belonging to the taxpayer, except such as are exempt by law, for the payment of the amount due, together with interest on the amount, any penalty for nonpayment, and such further amount as shall be sufficient for the fees, costs, and expenses of the levy.As used in this subsection, the term "property and rights to property" includes, but is not limited to, any account in or with a financial institution.
    2. A levy upon an account in or with a financial institution shall be a constructive levy and shall be effective at the time of personal service upon the financial institution as evidenced by an entry of service upon the levy by the commissioner or his authorized representative, or by an acknowledgment of service made by a proper official of the financial institution indicating the date and time of service.The commissioner or his authorized representative may, in lieu of personal service or service by mail, serve a levy upon a financial institution, and a financial institution may acknowledge service of a levy by telephonic facsimile transmission or by other means of instantaneous electronic transmission.The financial institution shall remit to the commissioner or his authorized representative as provided in this subsection not later than 15 days after personal service or acknowledgment of service by mail or facsimile or other instantaneous electronic transmission. Notwithstanding any other law to the contrary, a financial institution receiving a levy shall remit the full amount of its depositor's accounts that are subject to levy, to the extent of the amount claimed upon the levy, without deduction; provided, however, nothing contained in this subsection shall be deemed to diminish the right of a financial institution to exercise its right of setoff.
    1. The commissioner or his or her authorized representative may levy and conduct judicial sales in the manner provided by law for sales by sheriffs and constables.
      1. In the event the levy is upon personal property, the sale of such property shall be advertised ten days before the date of sale. Advertisements of sales shall designate the time, place, and manner of the sale, shall give a reasonable description of the property to be sold, shall be posted in three public places in the county, and shall be inserted at least one time in the newspaper in which sheriff's sales in the county are advertised. The commissioner may prescribe by regulation methods for providing notice of sale in addition to the provisions of this subparagraph.
      2. The commissioner or his or her authorized representative may conduct the sale of such personal property via public auction, public Internet auction, or via sealed bids. If the sale is conducted via public auction, the sale shall be held between the hours of 10:00 A.M. and 4:00 P.M. eastern standard time or eastern daylight time, whichever is applicable. The sale shall be conducted within the county in which the property levied on is situated, except that if it appears to the commissioner that substantially higher bids may be obtained for the property if the sale is held at a place outside such county, he may order that the sale be held in such other place. If the location of the sale is in a county other than the county in which the levy was made, notice of the sale as required by this Code section shall be made in both counties. The commissioner may prescribe by regulation the manner or other conditions for sales by public auction, public Internet auction, or sealed bids, including whether payment in full is required at the time of acceptance of the bid, under what circumstances the sale may be adjourned, and whether, and under what circumstances, multiple items of property may be sold separately, in groups, or in the aggregate.
      3. For each sale of personal property conducted pursuant to this paragraph, the commissioner or his or her authorized representative shall determine a minimum bid price of the sale, and, in the absence of a bid equal to or greater than the minimum bid price, the commissioner shall retain possession of the property. In determining the minimum bid price, the commissioner or his or her authorized representative shall take into account the expense of making the levy and sale. In his discretion, the commissioner or his or her representative may delay disclosure of the minimum bid price until the receipt of the highest bid.
    3. In the event the levy is upon real property, the commissioner or his or her authorized representative, after making the levy, shall return the levy on the execution to the sheriff of the county in which the property is located. After the return, the sheriff shall proceed to advertise and sell the property as required by law.
  5. The department shall apply all moneys obtained under this Code section first against the expenses of the proceedings and then against the liability in respect to which the levy was made and any other liability owed to the department by the delinquent taxpayer.
    1. Any person in possession of or obligated with respect to property or rights to property subject to levy upon which a levy has been made shall surrender such property or rights or discharge such obligation to the commissioner or his authorized representative, except such part of the property or rights as is subject, at the time of such levy, to an attachment or execution under any judicial process.
    2. Any person who willfully fails or refuses to surrender any property subject to levy shall be personally liable to the commissioner for a sum equal to the value of the property or rights not so surrendered but not exceeding the amount of the tax, interest, and penalties for the collection of which such levy has been made, together with costs and interest at the rate specified in Code Section 48-2-40 from the date of such levy.The liability imposed in this subsection shall be paid upon notice and demand by the commissioner or his delegate and shall be assessed and collected in the same manner as other taxes administered by the commissioner.Any amount other than costs recovered under this subsection shall be credited against the subject taxpayer's liability for the collection of which such levy was made.
    3. Any person in possession of or obligated with respect to property or rights to property subject to levy upon which a levy has been made who, upon service of levy by the commissioner or his authorized representative, surrenders such property or rights to property or discharges such obligation to the commissioner or his authorized representative shall be discharged from any obligation or liability to the delinquent taxpayer with respect to such property or rights to property arising from such surrender or payment.

(Ga. L. 1931, Ex. Sess., p. 24, § 44; Code 1933, § 92-3311; Ga. L. 1937-38, Ex. Sess., p. 77, § 41; Ga. L. 1951, p. 614, § 3; Ga. L. 1952, p. 300, § 1; Code 1933, § 91A-250, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 12; Ga. L. 1981, p. 1857, § 8; Ga. L. 1983, p. 1834, § 3; Ga. L. 1985, p. 931, § 1; Ga. L. 1990, p. 1875, § 1; Ga. L. 1991, p. 713, § 1; Ga. L. 1993, p. 961, §§ 3, 4; Ga. L. 2009, p. 816, § 5/HB 485; Ga. L. 2012, p. 735, § 2/HB 846.)

Cross references.

- Judicial sales, § 9-13-140 et seq.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1993, "acknowledgment" was substituted for "acknowledgement" in two places in paragraph (c)(2).

Editor's notes.

- Ga. L. 2009, p. 816, § 1/HB 485, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Improved Taxpayer Customer Service Act of 2009.'"

JUDICIAL DECISIONS

Requirement for assessment before tax due and personal debt created.

- Payment of tax imposed is not conditioned upon assessment by the commissioner. State v. Fuller, 90 Ga. App. 349, 83 S.E.2d 69 (1954).

No assessment proceeding is required if the return is accepted by the commissioner as correct. The tax is due and payable as a personal debt without assessment. Assessment is an action taken only with regard to collection of tax exceeding that returned by the taxpayer. State v. Fuller, 90 Ga. App. 349, 83 S.E.2d 69 (1954).

Notice not required as to personal property.

- Summary judgment was properly granted to a county tax commissioner in a taxpayer's action alleging violation of various statutory and constitutional provisions in the commissioner's levying upon the taxpayer's bank account to collect county taxes owed because neither O.C.G.A. § 48-2-55 nor O.C.G.A. §§ 48-3-3 and48-3-9 required the commissioner to give the taxpayer notice of the levy prior to levying upon the personal property. Anderson v. Ford, 261 Ga. App. 34, 581 S.E.2d 623 (2003).

County ad valorem taxes paid from surplus.

- Trial court properly ordered that county ad valorem taxes could be paid from surplus proceeds obtained from a foreclosure sale of the subject property given that: (1) the taxes were chargeable as a taxpayer's personal debt or as a lien, extending not only to the subject property, but also to all property the taxpayer owned, and the foreclosure notice did not limit the commissioner's authority as to how to collect the taxes owed; and (2) the security deed in turn provided that upon a foreclosure sale of the property, the lender bank would apply any surplus proceeds to the person or persons legally entitled to the proceeds, which also included the tax commissioner. Mulligan v. Sec. Bank of Bibb County, 280 Ga. App. 248, 633 S.E.2d 629 (2006).

Claim in bankruptcy.

- Chapter 13 debtor was liable for property taxes assessed against the property despite the fact that the debtor's lender was granted relief from stay. Under O.C.G.A. §§ 48-2-55 and48-5-10, the debtor remained personally liable for the taxes because the debtor was the title holder of the property on the first day of each tax year for which an unsecured priority claim was made. Waddy v. Fulton County Tax Comm'r (In re Waddy), Bankr. (Bankr. N.D. Ga. Sept. 23, 2010).

Cited in Fiffee v. Jiggetts, 353 Ga. App. 730, 839 S.E.2d 224 (2020).

OPINIONS OF THE ATTORNEY GENERAL

General state law on garnishments issued by state revenue commissioner governs over local legislation on garnishments. 1982 Op. Att'y Gen. No. 82-85.

Construed with § 9-13-60. - Subsection (c) of O.C.G.A. § 48-2-55, pertaining to tax levies, authorizes the Commissioner of the Department of Revenue and the Commissioner's agents to levy upon a delinquent taxpayer's equitable interest in real property encumbered by a deed to secure debt, without first satisfying the requirements of O.C.G.A. § 9-13-60. 1990 Op. Att'y Gen. No. 90-19.

RESEARCH REFERENCES

Am. Jur. 2d.

- 71 Am. Jur. 2d, State and Local Taxation, § 4. 72 Am. Jur. 2d, State and Local Taxation, §§ 780 et seq., 794 et seq., 803 et seq.

C.J.S.

- 38 C.J.S., Garnishment, §§ 1 et seq., 15, 17. 84 C.J.S., Taxation, §§ 667 et seq., 730 et seq., 841, 877 et seq.

ALR.

- Provisions of tax statute as to time for performance of acts by boards or officers as mandatory or directory, 151 A.L.R. 248.


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