(Orig. Code 1863, § 810; Code 1868, § 889; Code 1873, § 886; Code 1882, § 886; Civil Code 1895, § 894; Civil Code 1910, § 1151; Code 1933, § 92-7401; Code 1933, § 91A-307, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1988, p. 1363, § 1; Ga. L. 1990, p. 1337, § 1; Ga. L. 1994, p. 358, § 1; Ga. L. 2005, p. 138, § 2/HB 116; Ga. L. 2006, p. 72, § 48/SB 465; Ga. L. 2006, p. 739, § 1/SB 525; Ga. L. 2007, p. 172, § 1/HB 380; Ga. L. 2010, p. 878, § 48/HB 1387; Ga. L. 2015, p. 1219, § 5/HB 202; Ga. L. 2017, p. 738, § 1/HB 375; Ga. L. 2017, p. 774, § 48/HB 323.)
The 2015 amendment, effective January 1, 2016, substituted the present provisions of subsection (e) for the former provisions, which read: "(e)(1) Whenever technologically feasible, the tax collector or tax commissioner, at the time tax bills or any subsequent delinquent notices are mailed, shall also mail such bills or notices to any new owner that at that time appear in the records of the county board of assessors. The bills or notices shall be mailed to the address of record as found in the county board of assessors' records.
"(2) A new purchaser of property shall not be required to pay the interest specified in Code Section 48-2-40, or the penalty specified in Code Section 48-2-44, until 60 days after the tax collector or tax commissioner has forwarded a tax bill to the new purchaser in accordance with paragraph (1) of this subsection. This paragraph shall apply only to the tax bill applicable to the year in which the property was purchased."
The 2017 amendments. The first 2017 amendment, effective July 1, 2017, substituted "before" for "after" in the middle of paragraph (a)(1); substituted "this state" for "the state" near the end of the last sentence of subsection (b); and, in subsection (d), in the first sentence, substituted "owner of record" for "record owner" near the beginning, substituted "such person" for "that person" near the middle, in the second sentence, deleted "record" preceding "owner of the property" near the beginning, inserted "the" preceding "taxes became delinquent" near the middle, substituted "tax bill, and such notice shall state" for "tax bill and" in the middle, and in the third sentence, substituted "by first-class mail" for "first class" near the beginning. The second 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "such person" for "that person" near the middle of the first sentence of subsection (d).
Editor's notes.- Ga. L. 1988, p. 1363, § 3, not codified by the General Assembly, provided that this Code section applies with respect to executions transferred on or after July 1, 1988.
JUDICIAL DECISIONS
It is proper to issue one fieri facias for both state and county taxes. Citizens & S. Bank v. State, 151 Ga. 696, 108 S.E. 161 (1921).
Jurisdictional facts must appear on face.
- Since a tax execution is not founded upon the judgment of any court, but is a purely summary process, it is essential to the validity of such an execution that all the necessary jurisdictional facts authorizing its issuance should appear upon its face. Equitable Bldg. & Loan Ass'n v. State, 115 Ga. 746, 42 S.E. 87 (1902).
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. § 48-3-3 nor O.C.G.A. §§ 48-2-55 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).
Writings insufficient as executions.
- When the executions are improperly directed "to any lawful officer," yet were executed by the proper officer, the levy and sale by that officer is not void because of the misdirection in the execution. Byars v. Curry, 75 Ga. 515 (1885).
Writing purporting to be an execution, but which merely commands the levying officers to whom it is directed to take of the property of a named corporation a specified sum as "now due and owing to this state and county for taxes, back taxes to 1899, as well as all lawful costs," is void. Equitable Bldg. & Loan Ass'n v. State, 115 Ga. 746, 42 S.E. 87 (1902).
Tax execution which omits the direction to any particular officer or officers, but commands a levy to be made upon the property of the defendant, was irregular but not void, and can be amended by adding a direction as provided by law. Winn v. Butts, 127 Ga. 385, 56 S.E. 406 (1907).
Executions levied by deputy need not be signed by sheriff.
- When tax executions are levied by a deputy sheriff, entry of levy upon executions need not be signed by the sheriff or by someone legally authorized to sign the sheriff's name for the sheriff. Durham v. Smith, 186 Ga. 565, 198 S.E. 734 (1938).
When tax collector for convenience causes executions against tax defaulters to be printed, bearing the collector's official signature in print, but leaves blank spaces in which to write the names of persons against whom and the amount for which each should be issued, and places them in the collector's office and the clerk fills out such executions appropriately against individual tax defaulters, and with knowledge and consent of tax collector they are delivered to sheriff for enforcement, such action is a sufficient issuance of such executions, and they and the levy thereof by the sheriff are not void on ground that the printed papers were not signed by hand of tax collector or by someone in the collector's presence at the collector's request. Federal Land Bank v. Moultrie Banking Co., 178 Ga. 150, 172 S.E. 455 (1934).
Effect of tax execution issued against one other than owner of nonreturned property.
- When owner fails to return land, there is no provision of law whereby the owner's title can be divested by levy and sale as property of another person under a tax execution issued against such other person. Nelson v. Brown, 174 Ga. 150, 162 S.E. 276 (1932).
No authority to issue execution for occupation tax against one illegally operating stock exchange.
- One illegally conducting a stock exchange is not properly to be regarded as a tax defaulter against whom a tax collector has authority to issue an execution with a view to compelling payment of the occupation tax upon dealers in "futures." Jones v. Stewart, 117 Ga. 977, 44 S.E. 879 (1903).
Sufficiency of notice.- County undertook sufficient efforts to provide a taxpayer with reasonable notice of the tax sale on the taxpayer's property as the county checked the local deeds and records, and then contacted an outside locating agency for assistance; the taxpayer's failure to notify the county of a change of name and address played a significant role in the taxpayer's failure to receive actual notice of the tax sale. Cuvillier v. Rockdale County, 390 F.3d 1336 (11th Cir. 2004).
Tax commissioner immune to action for damages for failure to give notice.
- Property owner's claim for damages based on a county tax commissioner's failure to properly send notices required by O.C.G.A. §§ 9-13-13,48-3-3,48-3-9(a), and48-4-1, was barred by sovereign immunity; O.C.G.A. §§ 15-13-2 and48-5-137 did not render the tax commissioner liable as an ex-officio sheriff because the notices did not constitute a "false return" or legal neglect to make a "proper return". Raw Properties, Inc. v. Lawson, 335 Ga. App. 802, 783 S.E.2d 161 (2016).
Executions validly issued.
- When the plaintiff argued that the defendants improperly demanded interest and fees based on the higher assessment amount as the plaintiff entered into a consent agreement with the county tax commissioner to lower the value of the property prior to levy on the 2012 executions, the plaintiff's substantive claims were prohibited as a matter of law because the tax executions were validly issued by the commissioner; the plaintiff failed to pay the taxes while pursuing the plaintiff's appeal of the assessment and awaiting a refund; and the defendants were authorized to levy the executions and demand payment as the plaintiff failed to plead that the executions were void as a matter of law or were cancelled by the commissioner in the consent judgment. B.C. Grand, LLC v. FIG, LLC, 352 Ga. App. 646, 835 S.E.2d 676 (2019).
Entitlement to excess funds.
- Trial court committed no error in disbursing excess funds from tax sale to owner of subject property at time of tax sale and vesting title to property to the property free and clear of the security deed holder's adverse claims because the owner had filed the owner's petition and the trial court ruled on the petition during the time the owner's right to redeem existed, and the owner's title as owner was not divested and the tax sale purchaser had no right to possess the property at that time. Republic Title Company, LLC v. Freeport Title and Guaranty, Inc., 351 Ga. App. 408, 829 S.E.2d 172 (2019), cert. denied, No. S19C1616, 2020 Ga. LEXIS 168 (Ga. 2020).
Cited in Nat'l Tax Funding, L.P. v. Harpagon Co., 277 Ga. 41, 586 S.E.2d 235 (2003).
OPINIONS OF THE ATTORNEY GENERAL
Persons authorized to make levy.
- Officer making the levy can be a sheriff, or if there is a local Act making the tax collector an ex officio sheriff for the purpose of levy and sale under tax execution, it can be the tax collector. 1969 Op. Att'y Gen. No. 69-250.
Justice of the peace plays no part in actual collection of back taxes either county or state. 1969 Op. Att'y Gen. No. 69-263.
Duty of levying officer upon receipt of execution.- Upon delivery of execution, levying officer must proceed to seize and sell enough property to satisfy execution; if less than the whole of a particular piece of property would be sufficient to satisfy execution and property is reasonably capable of subdivision for purposes of sale, it is the duty of the levying officer to subdivide the property and sell no more of that property than is necessary to satisfy execution. 1967 Op. Att'y Gen. No. 67-369.
Entry of levy.- Officer making the levy shall enter the levy on the tax fieri facias and in such entry shall plainly describe the property levied on. 1969 Op. Att'y Gen. No. 69-250.
RESEARCH REFERENCES
Am. Jur. 2d.
- 30 Am. Jur. 2d, Executions, § 32.
C.J.S.- 85 C.J.S., Taxation, § 1284 et seq.