(Ga. L. 1884-85, p. 66, §§ 2-5; Civil Code 1895, §§ 962, 963, 964, 965; Civil Code 1910, §§ 1229, 1230, 1231, 1232; Code 1933, §§ 92-5102, 92-5103, 92-5104, 92-5105; Code 1933, § 91A-1361, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 1857, § 19; Ga. L. 1982, p. 1114, §§ 1, 2; Ga. L. 1983, p. 575, § 1; Ga. L. 1987, p. 965, § 1; Ga. L. 1990, p. 1324, § 7; Ga. L. 2009, p. 216, § 2B/SB 240.)
Editor's notes.- Ga. L. 1987, p. 965, § 2, not codified by the General Assembly, provided that that Act shall apply with respect to executions issued on or after July 1, 1987.
JUDICIAL DECISIONS
Attorneys fees.
- Statute does not constitute authorization for adding attorney fees to the principal, interest, and costs. Money v. Thompson & Green Mach. Co., 155 Ga. App. 566, 271 S.E.2d 699 (1980) .
Presumption as to timely performance of duties by tax officials.
- When the defendant county fiscal and taxing authorities are required by law to perform all of the acts sought to be enjoined by the taxpayer (increasing valuation of taxpayers' property, compiling and transmitting tax digest and levying taxes) on or before December 20, and when the court refuses to restrain the authorities from performing those official duties at the proper time, it would be presumed, unless the contrary appears, that the returns were timely and properly performed by the authorities. Kight v. Gilliard, 215 Ga. 152, 109 S.E.2d 599 (1959).
Effect of failure to enter execution on docket.
- Mere deposit of execution was in the clerk's office and entry of filing thereon is ineffective unless the execution was actually entered on the docket. Suttles v. Dickey, 192 Ga. 382, 15 S.E.2d 445 (1941).
Failure to attach unsigned receipt to execution.
- Failure of the tax collector to attach an unsigned receipt to the execution does not render the execution void but only irregular. Wilson v. Herrington, 86 Ga. 777, 13 S.E. 129 (1891).
Claims for taxes should be enforced within seven years from the date when the taxes are due and when executions could have been issued therefor, unless within such time an execution is issued and entered on the general execution docket, as in the case of judgments. Suttles v. Dickey, 192 Ga. 382, 15 S.E.2d 445 (1941).
Action to enjoin enforcement of execution when execution barred.
- When execution for collection of taxes was barred, the taxpayer was no longer bound for the taxes, and the taxpayer could maintain an action to enjoin enforcement of the execution and for its cancellation. The taxpayer was not estopped from doing so because the taxpayer owned the property for the entire year for which the taxes involved were due, failed to make a return of the property for such year, and had not paid or offered to pay the taxes. Suttles v. Dickey, 192 Ga. 382, 15 S.E.2d 445 (1941).
Priority of tax claims over recorded deeds, mortgages, and liens.
- Provisions of former Code 1933, § 67-2501 (see now O.C.G.A. § 44-2-2), declaring effective from the date of filing "deeds, mortgages, and liens of all kinds," as against third persons acting in good faith and without notice have no application to claims for taxes. Suttles v. Dickey, 192 Ga. 382, 15 S.E.2d 445 (1941).
Collection of expenses of execution and levy.
- City was not authorized to collect the expenses of execution and levy until the levy was made; hence, because the city failed to show that the city was authorized to collect a $75.00 fee for expenses incurred in connection with the tax execution prior to a levy, the trial court properly found in favor of a taxpayer as to the issue. Mayor of City of Fort Valley v. Grills, 282 Ga. App. 397, 638 S.E.2d 830 (2006).
Court of appeals did not err in finding that no levy occurred that would have authorized the imposition and collection of fees pursuant to O.C.G.A. § 48-5-161(c)(2) because it correctly recognized that the execution documents on which a county tax commissioner relied did not show a valid levy occurred when although the commissioner pointed repeatedly to documents reflecting unsigned and undated executions that were recorded in the execution docket, there was no official entry of levy by the levying officer on those documents, i.e., no signature accompanying a statement that the property identified on the execution had been levied upon; the court of appeals also recognized properly that no levy occurred when a collection agent for the county was told to begin "phase two" of the collection process because nothing in the record reflected a physical tacking of a valid notice of execution of levy on the real property in issue. Huff v. Harpagon Co., LLC, 286 Ga. 809, 692 S.E.2d 336 (2010).
Because there was no valid levy, a fee discussion by the court of appeals constituted an improper advisory opinion in that the court of appeals attempted to determine in the abstract how O.C.G.A. § 48-5-161(c)(2) had to be construed; the construction to be given the fees provision in § 48-5-161 was not properly before the court of appeals. Huff v. Harpagon Co., LLC, 286 Ga. 809, 692 S.E.2d 336 (2010).
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
Application of penalty provisions.
- Penalty and fees provided in O.C.G.A. §§ 48-2-44 and48-5-161 would apply to unpaid ad valorem taxes which were assessed in 1981, 1982, and 1983 as follows: When the statutory prerequisites of § 48-2-44 have been met, a penalty of 10 percent of the amount of tax due and not timely paid would apply to ad valorem taxes which were unpaid after July 1, 1981. In addition, a 10 percent execution fee would apply to ad valorem tax executions issued on or after July 1, 1982, and before March 15, 1983. In keeping with the reasoning employed in Ops. Att'y Gen. 81-76 and 82-72, only those executions issued on or after March 15, 1983, the effective date of § 48-5-161, as amended by Ga. L. 1983, p. 575, would not be subject to a 10 percent execution fee, but the amount collected on these executions would include all costs, commissions, interest, and penalties as provided by law. 1984 Op. Att'y Gen. No. U84-25.
Ten percent execution fee is automatic and mandatory, and must be collected whenever conditions set forth in subsection (c) of O.C.G.A. § 48-5-161 are satisfied. 1982 Op. Att'y Gen. No. 82-72.
Ten percent execution fee applies only to executions issued on or after July 1, 1982. 1982 Op. Att'y Gen. No. 82-72.
When fee arises.- Ten percent execution fee arises upon issuance of execution (ordinarily December 20 of the tax year in question). 1982 Op. Att'y Gen. No. 82-72.
Who may collect fee.- Ten percent execution fee is collectible by whoever is authorized to collect other amounts specified in execution. 1982 Op. Att'y Gen. No. 82-72.
Execution fee and penalty cumulative.
- If circumstances set forth in each section are met, the penalty provided by O.C.G.A. § 48-2-44(b) and execution fee provided by subsection (c) of O.C.G.A. § 48-5-161 are cumulative in nature. 1982 Op. Att'y Gen. No. U82-37.
Delinquent municipal taxes.
- Execution fee provided for in O.C.G.A. § 48-5-161 does not apply to executions issued for delinquent municipal taxes. 1983 Op. Att'y Gen. No. 83-7.
Number of executions immaterial to penalty amount.
- Because the 10 percent penalty imposed by O.C.G.A. § 48-5-161 as to ad valorem tax executions issued on or after July 1, 1982, and before March 15, 1983, is based on the amount of tax due, the number of executions which have been issued are immaterial to the amount of the penalty. 1984 Op. Att'y Gen. No. U84-25.
Local school systems were entitled to a proportionate share of funds raised through imposition of the execution fee on delinquent taxes collected through execution, under former subsection (c) of O.C.G.A. § 48-5-161. 1983 Op. Att'y Gen. No. 83-20.